-Aadit Sharma and Arjun Singh

The Supreme Court’s decision in Dr. Lokesh B.H. & Ors. v. State of Karnataka & Anr. (“Lokesh B.H”) is largely read as bringing live-in relationships within the ambit of Section 498A of the erstwhile Indian Penal Code (“IPC”). The real development lies in the condition attached to that extension. A relationship in the nature of marriage attracts Section 498A only where the parties also intended to marry. Marriage stops being an absolute prerequisite but stays relevant through intention. Since “intent to marry” appears nowhere in the text of Section 498A, can a court write it in as a condition for criminal liability through purposive interpretation?

This question becomes more significant when considered alongside the Protection of Women from Domestic Violence Act, 2005 (“DV Act”), which recognises relationships in the nature of marriage without asking about intent to marry at all. The same relationship can now receive civil protection while falling outside criminal liability, and the judgment says little about how such a private intention gets proved, especially at the quashing stage where courts avoid detailed evidentiary inquiry. This article examines whether the “intent to marry” test is a principled limitation on the expansion of criminal law or an additional ingredient judicially introduced into a penal provision and whether its subjective nature makes the test workable in practice.

Cruelty Without a Marriage Certificate

Section 498A was introduced by the Criminal Law (Second Amendment) Act, 1983 with the objective of curbing the menace of cruelty by husbands towards their legally wedded wives. This amendment brought the acts of cruelty, be it mental, emotional or physical, by the husband towards their wives under the criminal purview, which was made punishable under the erstwhile IPC. The important facet of this amendment was that it made the acts of cruelty by the husbands punishable towards their legally wedded wives only.  The Court rejects this narrow interpretation by referring to the objective of the legislature behind introducing Section 498A.

The reasoning is worth stating plainly because it does the work of the whole judgment. If a woman suffers domestic cruelty at the hands of a man she lives with, the absence of a marriage certificate does not make that cruelty any less real. The Court makes this point through a direct comparison: a married couple mistreated by the husband’s family and a couple who lived together before marriage and were mistreated in identical fashion. The only difference between the two is formal marital status. The harm is the same.

In Reema Aggarwal v. Anupam, the Court held that Sections 498A and 304B of the IPC apply even where the marriage is legally invalid, since the provision targets cruelty, not the formal validity of the marital tie. Lokesh B.H. stops short of treating every live-in relationship as marriage. It borrows the “relationship in the nature of marriage” test from D. Velusamy v. D. Patchaiammal and Indra Sarma v. V.K.V. Sarma, turning on duration of cohabitation, shared household, and public conduct, and then adds a requirement of its own: the intent to marry. A relationship can satisfy every Velusamy criterion and still fall outside Section 498A if the couple never meant to marry.

Here is the complication. Lokesh B.H. is not actually a live-in case. The complainant pleaded a Hindu customary marriage; the appellant’s defence was that it was void because an earlier marriage was still subsisting, a void-marriage dispute, not a live-in one. The holding rests on two limbs, one for a void or voidable marriage, another for a live-in relationship. Only the second needs the intent-to-marry test, and it is the limb this case never required. The Court could have decided the appeal on the void-marriage facts alone, as Reema Aggarwal did; however chose a broader route instead.

Two Statutes, One Relationship

The significance of the “intent to marry” requirement becomes clearer when Section 498A is placed alongside the DV Act.

The expression ‘relationship in the nature of marriage’ already has a settled place in the DV Act. Section 2(f) recognises domestic relationships arising from such relationships, while Velusamy and Indra Sarma developed criteria for identifying qualifying live-in relationships. Neither requires an intention to formalise the relationship. Lokesh B.H. sharply separates this civil regime from Section 498A, where the DV Act is protective whereas Section 498A is penal. The Court thus holds that criminal law may legitimately demand more than civil protection.

This distinction leaves an unresolved problem because the same relationship may now carry different legal identities depending on the statute being applied.

A couple who lived together for ten years, shared a household, pooled resources and were treated as partners but chose never to marry. As per Indra Sarma, this qualifies as a relationship in the nature of marriage for the purpose of the DV Act. Now, with the judgment of Lokesh B.H., the relationship may fall outside Section 498A because the intention to marry is also to be checked. This raises a normative question: why should intention to marry determine criminal protection when cruelty is unrelated to that intention?

The court’s constitutional reasoning cuts both ways. Articles 14, 15 and 21 grant the freedom to live with whomever one chooses, echoing the autonomy reasoning in Puttaswamy. That freedom explains why marriage cannot be the sole gate to protection, yet intention to marry becomes exactly that gate for invoking Section 498A. A woman whose partner never meant to marry ends up with less protection than one whose partner did, though Article 21 protects both choices equally. The judgment is also silent on the fact that if a live-in partner can count as “husband”, do his parents and siblings become “relatives of the husband” absent any marriage at all?

A Limit on Criminalisation or a New Ingredient?

The intent-to-marry requirement can be read as the Court trying to hold two concerns together at once. While a literal construction of Section 498A denies protection to marriages that have not been solemnized, allowing the courts to continually widen a penal provision as society changes will render the provision without any definite boundary.

The problem is that “intent to marry” appears nowhere in the text of Section 498A. The Court has done more than read “husband” broadly. In fact, it has created an entirely new element for applying the provision in cases where the marriage has not taken place, but the intention of the parties was that it should be solemnized eventually.

This raises a familiar question in criminal law about where purposive interpretation ends, and judicial legislation begins. The judgment addresses this by qualifying its own expansion of the provision so that not all cohabitation will be marriage but only cohabitation with a marital orientation. It remains to be seen whether this limitation is a valid one of interpretation or rather an element introduced by the Court itself.

The Problem of Proving An Intention

The greatest difficulty may arise not in constitutional courts but before investigating officers and trial courts.

The Court places the initial burden on the woman seeking protection to establish an intention to marry, stressing that a higher standard is justified by criminal consequences. Yet intention is inherently difficult to prove. A couple may live together for years, share finances and present themselves as partners, but if they expressly choose never to marry, Lokesh B.H. may exclude Section 498A. Conversely, where a couple privately intends to marry without engagement or family disclosure? Then what conduct can establish an intention never expressly declared? The difficulty deepens where that intention changes over time.

Indian law already offers a workable alternative to a subjective intent test. In Badri Prasad v. Dy. Director of Consolidation, the Supreme Court held that prolonged cohabitation as husband and wife raises a strong, rebuttable presumption of marriage, placing the burden on whoever disputes it. The same was also reaffirmed in Tulsa v. Durghatiya. This is an objective evidentiary test based on what the relationship demonstrably was rather than what parties privately intended. Lokesh B.H. could have adopted this approach but chose subjective intent instead. Why it preferred an untraceable state of mind over a settled evidentiary presumption remains unexplained.

The problem is compounded procedurally. Lokesh B.H. arose from proceedings seeking quashing under Section 482 CrPC, now Section 528 BNSS. The Court held that allegations disclosing a cognizable offence should not ordinarily be quashed at that stage, consistent with the dictum laid down in Bhajan Lal. Yet “intent to marry” is essential to Section 498A and requires examining conduct over time. How can a High Court assess it at the quashing stage without conducting the mini-trial Bhajan Lal discourages? Accepting a bare FIR assertion makes the requirement meaningless; demanding proof invites an evidentiary inquiry.

The Court partly addresses arrest safeguards through strict compliance with Arnesh Kumar v. State of Bihar, including preliminary inquiry before arrest. But safeguards against arrest do not resolve how “intent to marry” is to be established in the first place.

Conclusion

Dr. Lokesh B.H. is more significant than the headline proposition that Section 498A now reaches live-in relationships. Its real contribution is a marriage-adjacent category of criminal liability, one that rejects marriage as an absolute prerequisite without abandoning marriage altogether. The question changes from whether the individuals involved were married to whether they intended to marry.

That change may offer a principled limit on the expansion of criminal law. However, at least three issues remain unresolved in this judgment: an inclusion in Section 498A that extends beyond what was required by the case; a distinction in the DV Act and Section 498A so that, depending upon which law is being applied, a relationship has two different legal identities, with intention as the key between the two and a subjective test of proof in lieu of an objective test that had been provided already.

Until these issues are resolved, Lokesh B.H. has done something both significant and unusual. It has expanded Section 498A beyond marriage but retained marriage not as a status anymore but as an intention.

The authors are third-year students at Dr. Ram Manohar Lohiya National Law University, Lucknow.