On Thursday, the Bombay High Court held in one of its judgement, that in a marriage, husband and wife are equal partners and the wife is best suited to be the guardian of her husband who is lying in a vegetative state.
With this order, the Court directed all concerned authorities to accept the petitioner-wife's status as "Guardian" after she cited mounting medical expenses to gain access to her husband's finances but the bank refused.
The Court further said that while there is no law at present on appointing guardians to patients lying in a comatose or vegetative state, the Hindu Vedic philosophy considers marriage as a union of two souls for life and hence partners can be appointed as guardians of each other.
"A wife is considered as a 'sahayogini' (partner), co-operating with her husband in all his activities as well as a 'sahakarmini', which means having an equal share in the actions of her husband. Together they are referred to as ''dampati'' (couple). In Manusmriti, Manu had declared the wife as not just 'patni', but 'dharmapatni', meaning thereby that as per dharma she is under obligation and performs all duties of her husband."
A Division bench comprising of Justice Ujjal Bhuyan and Justice Milind Jhav were hearing a Writ Petition filed by one wife, whose husband Hariom Sharma is in a state of comatose, a vegetative state, with no signs or prospect of revival as he suffered cardiac arrest while jogging in Nov 2018 and has been in the said state ever since.
The plea stated that the petitioner has two sons, one of whom is a minor, and a dependent mother-in-law and with mounting medical bills and other household expenses, she is in a state of helplessness.
The petition stated that the petitioner had to create an air-conditioned nursing room having amenities and appoint a full-time nurse and part-time physio and speech therapists to treat her husband.
The petitioner said that since her husband is not in a position to use his intellect, converse and sign various documents, she had requested the concerned banks to allow her to put her signature in place of her husband, but the same was turned down.
She further contended that when she approached the concerned banks to allow her to put her signature in place of her husband, the request was turned down and petitioner was advised to approach the competent court to get herself appointed as her husband's guardian.
He Learned Counsel submitted that being the patient's wife, the petitioner is in the best position to act as his guardian considering his comatose condition and vegetative state for the last more than two years with no sign or prospect of revival. He cited several judgments of High Courts including Bombay High Court's judgment in Philomena Leo Lobo Vs Union Of India & Ors and submitted that the present case is very similar to the said case.
On the other hand, both Union and the State while not contesting the factual narrative of the petitioner, have questioned maintainability of the Writ Petition contending that the relief sought for is basically a private relief; invoking Public Law remedy may not be justified.
After hearing submissions of all parties, Court referred to Supreme Court's decision in Aruna Ramchandra Shanbaug Vs. Union of India and observed-
"When we say that a person is in coma or in a comatose condition or in a vegetative state, it cannot be construed that such a person is a physically challenged person or a mentally challenged person as is understood under the relevant statutes. Nor such a person can be construed to be a minor for the purpose of appointment of guardian. As such, it is quite evident that the relevant statutes relating to appointment of guardian would not be applicable to persons lying in a comatose condition or in a vegetative state. Infact, there is consensus at the Bar that at present there is no legislation in India relating to appointment of guardians to patients lying in comatose or vegetative state."
The bench further noted-
"According to Hindu vedic philosophy, marriage is a sanskar or a sacrament. What is essentially contemplated is a union of two souls. The eternal being is composed of two halves i.e., the man and the woman. Both the halves are equal and one-half is incomplete without the other. As long as the wife survives, one half of the husband survives.
In such circumstances, there can be no manner of doubt that conceptually the wife can be said to be best-suited to be the guardian of her husband who is under a state of incapacity or disability on account of being in a comatose condition or vegetative state."
Noting the above, to ensure that guardianship is being used for the benefit of the person who is in a vegetative state, Court directed the Member Secretary of Maharashtra State Legal Services Authority to monitor functioning of the petitioner as guardian of Hariom Sharma every three months and submit report to the Maharashtra State Legal Services Authority which shall be compiled for a period of two years.
The order has been passed by a bench comprising of Justice Ujjal Bhuyan and Justice Milind Jhav on 27-08-2020.
Sources: Live Law, The Wire
