When the Supreme Court held in Dr. Lokesh B.H. & Ors. v. State of Karnataka & Anr. that an unmarried live-in partner can be prosecuted as a "husband" under Section 498A of the Indian Penal Code, now Section 85 of the Bharatiya Nyaya Sanhita, the criticism that followed focused on one gap in the new test: it protects only those partners who can show an intent to marry, and marriage is not an option available to same-sex couples under Indian law. The suggested fix was to replace the marriage-proximity test with a functional one, asking not whether the parties intended to marry but whether they shared a home, finances and a genuine relationship of interdependence. On that logic, a same-sex couple satisfying every marker of a committed domestic relationship would qualify for protection just as readily as a heterosexual one.

That fix, however, runs into a second and more stubborn obstacle, one that a functional test cannot solve at all. Section 498A does not merely require a relationship resembling marriage. It requires a "husband," and it requires a "her." The offence is defined as cruelty by "husband or relative of husband" to "a woman." Section 85 BNS reproduces this language without a single change, despite the 2023 recodification being an obvious occasion to modernise it. There is no version of the provision in which two women, or two men, can occupy these roles, because the roles themselves are written as a male perpetrator and a female victim. A test can be as marriage-agnostic as one likes; it still has to be applied to a text that only recognises one configuration of two people.

Work through the two possible same-sex configurations and the problem becomes concrete. In a relationship between two women, the victim role is available, since the complainant is indeed a woman. But nothing in Lokesh B.H., or in the decades of precedent it builds on, suggests that a woman can be read into the role of "husband." The extension the Court made was to bring an unmarried man within the definition of husband; it was never suggested, and there is no principled basis to suggest, that the same interpretive move could bring in a female partner. So a lesbian couple, however long they have lived together, however publicly they have presented as partners, cannot complete the offence no matter how the "relationship in the nature of marriage" question is resolved, because there is no husband in the relationship to prosecute.

A relationship between two men fails even earlier. Section 498A does not engage at all unless the victim is a woman. It does not matter whether the couple's relationship mimics marriage in every particular, whether they intended to marry, or whether one of them has subjected the other to years of documented cruelty. The provision was not written with a male complainant in view, and no reading of "husband," however generous, changes who counts as the victim. The marriage-proximity debate that Lokesh B.H. provoked never even arises for a gay couple, because the threshold question of sex forecloses it first.

This is not a new pattern in Indian domestic-violence law; it is the same pattern seen once before, in a related statute. The Protection of Women from Domestic Violence Act, 2005 defines "respondent" as an adult person in a domestic relationship with the aggrieved person, and originally confined that role to an "adult male person." In Hiral P. Harsora v. Kusum Narottamdas Harsora, the Supreme Court struck down the words "adult male" from that definition, holding that confining relief to a male respondent defeated the Act's purpose and that a woman could seek protection from a female relative just as she could from a male one. That is the only instance in which an Indian court has actually severed gendered language from one half of a domestic-violence provision. But it is worth noticing exactly what Harsora did and did not do. It neutralised the respondent, the perpetrator side of the equation. It left the "aggrieved person" defined, as it still is today, as "any woman." A man abused by a partner, of either sex, remains outside the Domestic Violence Act's protection even after Harsora, because the victim-side limitation was never before the Court and has never been read down since.

Read together, Harsora and Lokesh B.H. suggest an asymmetry that matters for where the law actually stands today. Harsora's holding, applied to its logical end, means a woman in a same-sex relationship can in principle name her female partner as a respondent under the Domestic Violence Act, since "respondent" no longer requires a man. Whether a live-in same-sex relationship qualifies as a "domestic relationship" under Section 2(f) of that Act still depends on the same "relationship in the nature of marriage" language that Lokesh B.H. wrestles with for Section 498A, so this route is not free of the marriage-proximity problem either, only free of the husband problem. A gay man has no equivalent opening. The victim-side definition that excludes him has never been the subject of a Harsora-style challenge, and it is considerably harder to imagine a court reading "woman" to include a man than it was to read a female relative into "respondent," since the latter merely removed a restriction on who could be proceeded against, while the former would rewrite who Parliament intended the entire Act to protect.

None of this means a same-sex partner subjected to domestic cruelty has no recourse under Indian criminal law. The Bharatiya Nyaya Sanhita's general provisions on hurt, grievous hurt and criminal intimidation, in Sections 114 to 125 and beyond, are written in sex-neutral terms: "whoever" causes hurt to "any person," regardless of the parties' sex or relationship….but these are not a substitute for what Section 498A offers. Section 498A recognises cruelty within an intimate domestic relationship, including sustained mental and psychological harassment that would rarely meet the threshold for ordinary "hurt," and it carries an evidentiary and sentencing architecture, along with the arrest safeguards Lokesh B.H. extends, that a generic assault charge does not replicate. Relying on the general hurt provisions is real recourse, but it is not the protection Section 498A was built to provide.

This should reframe how the criticism of Lokesh B.H. is pitched. Replacing the intent-to-marry requirement with a functional test of interdependence is a necessary correction, and the Court had the tools to make it without stepping outside the interpretive method it already used to bring unmarried partners within the provision. But it would not, on its own, complete the job. Severing "relationship in the nature of marriage" from actual marital intent is a question of how broadly a phrase already in the statute should be read. Severing "husband" and "woman" from Section 498A is a question of who the offence protects and whom it targets in the first place, and courts have been markedly more cautious about rewriting the identity of a criminal offence's victim and perpetrator than about enlarging a civil remedy's list of eligible respondents. Harsora managed the latter. Nothing in Indian jurisprudence has yet attempted the former, and there are good reasons, rooted in the rule against expanding penal liability by interpretation, why a court might decline to be the one that tries.

It might be asked why a court could not simply do to "woman" what Lokesh B.H. did to "husband": read it purposively to cover a male victim too. The two moves are not equivalent. Reading an unmarried man into "husband" left the class Section 498A protects untouched; it only expanded who could be held liable for harming a woman, a class Parliament already recognised. Reading a man into "woman" would expand the protected class itself. Section 498A was inserted into the Penal Code in 1983 specifically to address cruelty and dowry-related harassment inflicted on women within marriage and marriage-like arrangements, a history the provision's text, structure and evidentiary presumptions were built around. Courts extending a penal provision to conduct Parliament did not contemplate face a real constraint, rooted in the rule against enlarging criminal liability by interpretation, that does not apply the same way to broadening who may invoke a protection that already exists. That asymmetry is why Harsora could sever "adult male" from a civil remedy's respondents while nothing comparable has been attempted for a criminal offence's definition of its victim.

The more direct route runs through Parliament, not the courts: rewriting Section 85 BNS, and Section 2(a) of the Domestic Violence Act alongside it, in sex-neutral terms, protecting any person from cruelty inflicted by a partner with whom they share a domestic relationship, regardless of the sex of either party. That would close both gaps at once, the marriage-proximity one Lokesh B.H. leaves open and the sex-specificity one it does not even reach. Until then, a functional test, however well designed, will still run into the same wall that a gay couple hits before the marriage question is ever asked, and that a lesbian couple hits immediately after it.

Author is an Advocate practicing at Supreme Court of India. Views are personal.