The Delhi High Court has questioned the Centre on why legal safeguards available in live-in relationships between men and women should not similarly extend to same-sex partners seeking to make medical decisions for each other.
Justice Swarana Kanta Sharma raised the issue while hearing a petition seeking recognition of a non-heterosexual partner as a medical representative in situations involving medical treatment or emergencies. The Court also questioned the delay by the Central Government in responding to the plea.
Background Of The Case
The petition has been filed by Arshiya Takkar, seeking a framework under which a person's non-heterosexual partner can be recognised as the medical representative authorised to give consent for treatment.
The plea also seeks recognition of an advance medical power of attorney executed in favour of a non-heterosexual partner, so that the chosen partner can act on the patient's behalf when medical decisions are required.
The petitioner has challenged the exclusion of such partners from the existing framework governing medical consent. The plea refers to Clause 7.16 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, which refers to consent from a husband or wife, parent or guardian in the case of a minor, or the patient.
The petition contends that the absence of express recognition for same-sex partners can leave them without authority to participate in crucial medical decisions concerning their partner.
Court's Observation
During the hearing, Senior Advocate Saurabh Kirpal pointed out that the Centre had not filed its response despite the matter having been pending for about a year.
He argued that the Supreme Court may not have recognised same-sex marriage, but its jurisprudence recognises the right of persons to form relationships.
Justice Sharma then questioned the distinction between heterosexual and same-sex live-in relationships.
“How about this. The law recognizes live in relationship between a man and a woman. Why will it not allow a live in relationship between a man and a man? Let's just say what they have to say. It will be very interesting.”
The Court also noted that people who choose relationships outside conventional family structures may sometimes face rejection from their families. In such circumstances, the judge observed, a person may deliberately choose their partner rather than a family member to make important decisions.
The Court further referred to practical issues that may arise in such relationships, including medical consent, management of a person's estate and arrangements concerning last rites.
Justice Sharma observed that the issue appeared to involve a limited safeguard rather than requiring a complete overhaul of the existing framework.
“This is a very small thing. Why can’t it be done?”
Decision
The Delhi High Court directed the Central Government to file its counter affidavit within a week. The Court indicated that the matter would be taken up for further consideration on September 17, 2026.
The petition remains pending for consideration of the reliefs sought.
