Law does not bar live-in relationship between two men: Delhi HC in plea to let queer partners give medical consent

The Delhi High Court on Thursday gave the Central government one week's time to respond to a petition seeking guidelines enabling queer partners to give medical consent, as well as to give access to such partners at the time of medical treatment.

While hearing the matter, Justice Swarana Kanta Sharma posed a question to the Central government counsel,

"The law recognises a live-in relationship between a man and a woman. Why will it not allow a live-in relationship between a man and a man?"

The petition was filed by Arshiya Takkar, a member of the LGBTQ community, seeking directions to allow her queer partner to be appointed as her medical representative. It states that under the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, only the husband or wife, parent, guardian is regarded as the patient's medical representative to give consent for medical procedures and treatments.

“This systemic exclusion/omission constitutes discrimination on the ground of sex, violating Article 15 of the Constitution of India, as sexual orientation is recognized as being covered under the meaning of "sex" per the judgment in Navtej Johar v. Union of India. This discriminatory classification based on sexual orientation, by privileging heterosexual relationships, lacks any reasonable basis," the petition states.

Takkar is seeking guidelines permitting non-heterosexual partners of a patient as their medical representative. Alternatively, the petition seeks a Court declaration that a medical power of attorney given in advance by the patient to their non-heterosexual partner shall be sufficient to permit such partner to act as a medical representative.

The petition was first heard in July 2025 and notice was issued to the Union Ministry of Health and Family Welfare, Ministry of Social Justice and Empowerment, Ministry of Law and Justice and the National Medical Commission.

Senior Advocate Saurabh Kirpal, representing the petitioner, pointed out that no counter-affidavit has been filed by the Central government yet.

On the last date of hearing in July, this Court had given the Centre a last opportunity to file the document. In today's hearing, the government counsel sought more time to take instructions, stating that they were recently appointed. 

"This really makes me curious as to what people think. Kuch toh instruction hogi na. When you allow people to enter into a live-in relationship then accordingly you have to change this things. Ye kis cheez ki ladai hai? Aapko mujhe ye toh batana padega, what is your stand?" Justice Sharma said.

Kirpal cited Supreme Court decisions on the right to privacy and legal recognition of queer couples. He specifically cited the opinions of Justice Ravindra Bhatt and Justice DY Chandrachud in those judgments to state that queer couples are entitled to the rights flowing from live-in relationships.

"I can understand that the Court has today said that there can be no marriage because it has societal and religious connotations. The Court in the same breath stated that there is right to a relationship," he said.

Kirpal submitted that this petition was in consonance with Article 21 (right to life of dignity) of the Constitution.

"You cannot say that, now you can live together but cannot do anything together, that we will recognise your live-in relationship. Meaning that we will not put you in jail but you cannot do anything else. That is not the mandate of Article 21."

The Court agreed with the petitioner that due to the societal stigma attached to same-sex individuals, many families do not approve of their child's queer relationship.

"Whenever a person chooses a path that is not a path that is taken by the majority, they will be targeted or looked down upon...I have many cases where the families give them up and do not accept the relation."

Justice Sharma asked the government counsel to seek instructions and file its counter-affidavit within one week.

"The Court notes that for one year the counter has not been filed. However, considering the issue in question and its importance and that the counter affidavit will be needed for adjudication of this case, this Court permits them to file a counter affidavit within one week."

Further, the Court has asked the government counsel to advise their departments to take a decision on Takker's petition.

"If I pass an order in this regard, you do not need to change anything. Aapko bas safeguard hi toh karna hai? Ye toh bahut choti si cheez hai. Ek saal ho chuka, ek saal me instructions toh aane chahiye. Isme kuch nahi hai. Gradually you can make changes in your rule. This is only for medical..."

The Court stated that it intends to dispose of the matter by September and posted it for next hearing on September 17.

Along with Kirpal, Senior Advocate Shyel Trehan with Advocates Manjira Dasgupta, Bhargav R Thali, Mayank Khaitan, Rohan Poddar, Junaid Aamir, Rajat Choudhary, Adya Rajkotia and Punishk Handa appeared for the petitioner.

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