5 min readSep 17, 2025 05:52 PM IST
First published on: Sep 17, 2025 at 07:09 AM IST
By Firoza Mehrotra
A same-sex couple has moved the Bombay High Court, challenging the law that discriminates against them by taxing gifts received by one partner from the other. Under the Income Tax Act, no such tax on gifts is levied on heterosexual couples. This discriminates against them according to Article 14 and 15 of the Constitution. The petition has been admitted, and the next date of hearing is September 18. Even if the Bombay High Court gives a verdict in favour of the same-sex couple, how will it be implemented? The same question arises for implementing advisories issued by the Government as a follow up of the Supreme Court verdict in Supriyo @ Supriya Chakraborty and another v Union of India.
October 17, 2023 was indeed a very disappointing and sad day for supporters of same-sex marriages in India. On this day, while deciding on a batch of petitions seeking marriage equality for non-heterosexual couples, the Supreme Court held that there was no fundamental right to marry. However, there was unanimous consensus over acknowledging the right to be in a relationship. Leading the majority opinion on this question, Justice S Ravindra Bhat agreed with then CJI D Y Chandrachud that “all queer persons have the right to relationship and choice of partner, cohabit and live together, as an integral part of choice.” The Supreme Court also recorded that the Union government will constitute a committee chaired by the Cabinet Secretary for the purpose of defining and elucidating the scope of entitlements of queer persons who are in unions.
In April 2024, Government of India, constituted a committee with the Cabinet Secretary as the chairperson and secretaries of concerned key ministries as members. After a series of meetings, amongst other interim measures, the Department of Food and Public Distribution issued an advisory to all the states and Union Territories, that partners in a queer relationship are to be treated as part of the same household for the purposes of ration card and should not be subjected to any discrimination. Similarly, the Department of Financial Services has issued an advisory that there are no restrictions for persons of the queer community to open a joint-bank account and to nominate a partner in a queer relationship as a nominee. In the same vein, the Ministry of Health and Family Welfare has issued instructions to states prohibiting discrimination to the community with relation to healthcare and claiming the body of a deceased partner.
While these seem to be baby steps in the right direction, how are these advisories and any favourable court verdicts — as in the case of the gift tax — going to be implemented? In order to operationalise these rights/facilities, one will first need to show that the two non-heterosexual persons are in a recognised relationship/association. How will the department concerned know who the partners are in a queer relationship, who are to be provided with the entitlements?
The answer may lie in making a provision for a Deed of Familial Association (DoFA), originally suggested in Justice N Anand Venkatesh judgment of the Madras High Court, dated November 17, 2023. He suggested that the Tamil Nadu government consider recognising a DoFA as a right of partners to choose to form or retain families. This could be a good way of recognising a partnership between two non-heterosexual individuals. From my decades of administrative experience in government, I feel such a DoFA would help operationalise any court orders or government advisories already issued or to follow. It is not impossible to imagine a situation where a non-heterosexual couple goes to the relevant authority, pleading for a common ration card, for instance, with the Department of Food and Public Distribution’s advisory in hand, only to be asked: “Where is the proof that you are in a relationship?” A DoFA could become that one document that could help them prove their partnership. When facing a bureaucracy that reflexively asks for proof at every step – I know this from personal experience – the DoFA could be key to making things happen on the ground.
Any queer couple entering into a DoFA could provide affidavits of their desire to enter into an association of their own free will to the district magistrate or any other person, who should be authorised to issue a DoFA to them. This will help queer couples in accessing the facilities and rights given in court orders/advisories/circulars/orders of government. In the absence of this documentation, how would any government department or entity identify them and provide them with their entitlements? Documentation like a DoFA will provide the much needed recognition and dignity to same-sex couples, and, to quote the Supreme Court in Supriya Chakraborty v Union of India, also ensure “all queer persons have the right to relationship and choice of partner, cohabit and live together, as an integral part of choice” and be treated at par with heterosexual couples.
The writer is a former IAS officer who retired from the Planning Commission, Government of India
Any queer couple entering into a DoFA could provide affidavits of their desire to enter into an association of their own free will to the district magistrate or any other person, who should be authorised to issue a DoFA to them. 
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