Karunakar Narayan Shetty vs The State Of Maharashtra Through ...
2022 Latest Caselaw 2640 Bom

           Digitally signed
           by HEMANT                                               902-OSWP-756-2022.DOC
HEMANT     CHANDERSEN
CHANDERSEN SHIV
SHIV       Date:
           2022.03.19
           12:44:38 +0530

                   Shiv




                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             ORDINARY ORIGINAL CIVIL JURISDICTION
                                    WRIT PETITION NO.756 OF 2022

                   Karunakar Narayan Shetty                                   ...Petitioner
                        Versus
                   The State of Maharashtra                                 ...Respondents


                   Ms Roshni Bhandary, i/b Bhandary & Bhandary for the Petitioners.
                   Mrs Jyoti Chavan, AGP for the State/Respondent No 1.


                                          CORAM       G.S. Patel &
                                                      Madhav J. Jamdar, JJ.

                                          DATED:      17th March 2022
                   PC:-

1. Leave to amend in terms of draft amendment tendered, taken on record and marked "X" for identification. Amendment to be carried out forthwith without need of re-verification.

2. This Petition invokes our inherent and extraordinary writ jurisdiction to appoint the 74-year-old Petitioner, Karunakar Narayan Shetty, as the guardian at law of his spouse Netra. We have made substantially similar orders in other matters.

3. Netra suffers from Hypoxic Ischemic Encephalopathy. This includes brain cell dysfunction, seizures and permanent brain disability. She requires 24 hours care. At Exhibit "A" is a 16th

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January 2020 report from Dr Sushil Tandel, one of the Cities leading consultating Neurophysicians. Then there is a report of 8th June 2020 from Hinduja National Hospital at Exhibit "B", and, at Exhibit "C", another report of 24th July 2020 from the Bhakti Vedanta hospital. Dr Tandel's opinion is clear that Netra is in vegetative state. She is unable to look after herself. At her home her husband has set up a complete ICU facility. The Hinduja Hospital report also indicates hypoxic Ischaemic insult. The Bhakti Vedanta Hospital -- to which she was taken after Hinduja Hospital said no more could be done -- has, in its report, said that Netra needed a tracheostomy with ventilator support, a right radial arterial line, a Ryles' tube for feeding and a Foley's catheter. The neurophysician's report also indicates severe encephalopathy.

4. Karunakar and Netra's two sons Dhruva and Ashish are online. They have expressed their consent to the reliefs sought in the Petition.

5. We have recently held that our approach in such cases is the same as our approach when we are dealing with person and property of a minor. See: Lubina Mohamed Agarwal & Anr vs Union of India & Ors;1 and Nirupama Jitendra Mehta v State of Maharashtra.2

6. We reproduce paragraphs 11 to 17 of our order in Lubina Mohamed Agarwal:

"11. We do not however believe that hands of the Writ Court in a matter such as this are necessarily constrained by

2 Writ Petition No. 3313 of 2021, order dated 17th December 2021.

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the provisions of a statute or the existence of a statutory body. That approach, commended by the State Government, may have been preferable had such an application being brought by an outsider, that is to say, someone outside the immediate family, and it might have been prudent in those circumstances. But when Kamar's three children are agreed on a course of action, should the Writ Court decline the Petition and refuse relief only because their exists a competent authority established by statute? We do not believe that is the state of the law.

12. Mr Khambata, learned Senior Counsel for the Petitioners, has placed before us a note on the various statutes in question including the Mental Healthcare Act 2017, The Rights of Persons with Disabilities Act 2016 and what we will refer to as the National Welfare Trust Act of 1999.

13. Overriding all these is the doctrine of parens patriae, one that was discussed by the Supreme Court in Aruna Ramchandra Shanbaug v Union of India and Ors, 3 and more recently in Shafin Jahan v Asokan KM & Ors.4 The Supreme Court has said that the parens patriae doctrine may be invoked in a Constitutional Court in exercise of its jurisdiction wherever the welfare of the person, be it a child or a person who is mentally ill, needs protection. The doctrine is invoked to meet the ends of justice. It is not to be applied blindly in every case, but in exceptional cases where the subject of the petition is not mentally or physically capable (or is of a very young age) and where there is no other parent or legal guardian. This is perhaps a reversal of the usual guardian-and-ward doctrine. There, a birth parent is the natural guardian of the person and property of the minor child. But reverse situations have

3(2011) 4 SCC 454.

42018 16 SCC.

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often come to court, where it is the parent who needs care from the child. The law does not explicitly or automatically recognise the child as the legal guardian of the parent, and it is for this purpose that the parents parens patriae principle is invoked to provide precisely such relief. In Rajni Hariom Sharma V Union of India & Anr,5 a Division Bench of this Court had before it the claim of a wife to be appointed the guardian of her husband, said to be in a vegetative state. In paragraph 17, the Division Bench said:

"17. Learned counsel for the petitioner submits that by virtue of being the wife of Mr Hariom Sharma, 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. She can certainly be construed as the next friend and appointed as the guardian. On a query by the Court on what basis she was invoking writ jurisdiction of the Court, learned counsel for the petitioner submits that there is no statutory provision relating to appointment of guardian of a person who is in a state of coma or lying in a vegetative state. Therefore, a writ court exercising jurisdiction under Article 226 of the Constitution of India would be in the best position to grant relief to the petitioner. ..."

14. This and other decisions were considered in Vijay Ramchandra Salgaonkar v the State, a judgment of 17th July 2021 by a Bench of which one of us (Madhav J Jamdar J) was a member.6 The Petitioner sought an order appointing himself as the guardian of his wife. She too had dementia

52020 SCC OnLine Bom 880.

6Writ Petition No. 637 of 2021.

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(apart from other ailments). The Bench reviewed some of the case law on the subject and in paragraphs 15 to 16 held:

"15. Writ Petition No.9712 of 2017 was filed before this Court by Santosh Rohidas Deshmukh seeking a direction to appoint him as a guardian of his father Rohidas Deshmukh who was not in a position physically and mentally, to take care of himself and managing his property. After referring to the decision of Madras High Court in the case of Sairabanu Mohammed Rafi Vs. State of Tamil Nadu, Writ Petition No.28435 of 2016 decided on 06.01.2016, this Court appointed the petitioner as guardian of his father including for the purpose of operating bank accounts. 15.1 Likewise in Writ Petition (L) No.28269 of 2017, Philomena Leo Lobo Vs. Union of India decided on 13.10.2017, a Division Bench of this Court allowed the prayer of the petitioner Philomena Leo Lobo for declaring her as guardian of her husband Leo Lobo who was in a comatose condition.

16. In Sikha Arjit Bhattacharya Vs. Union of India, Writ Petition No.11757 of 2018 decided on 27.10.2020, a Division Bench of this Court accepted the prayer of the petitioner Sikha Arjit Bhattacharya and declared her as the guardian of her husband Dr Arjit Bhattacharya who was in a vegetative state. 16.1 Very recently, a Division Bench of this Court in Smt Reshma Salam Kondkari Vs. Union of India, Writ Petition (L) No.11394 of 2021 decided on 17.06.2021, declared the petitioner Reshma Salam Kondkari as the

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guardian of her husband Abdul Salam Ismail Kondkari who is in a vegetative state, for managing the bank accounts and immovable property of the husband including selling of flat."

15. We also choose to reproduce paragraphs 17.1 to 17.3 of the decision in Salgaonkar below:

"17.1 In that case it was held that when 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. In the circumstances it was held that statutes like the Guardians and Wards Act, 1890, Mental Healthcare Act, 2017 etc. would not applicable to persons in a comatose condition or in a vegetative state. It was also held that there is no legislation in India relating to appointment of guardians to patients lying in comatose or vegetative state.

17.2 On the crucial issue as to relief that may be granted to the petitioner by invoking writ jurisdiction under Article 226 of the Constitution of India, it was noticed that there is no statutory provision governing the field relating to appointment of guardian of a person lying in a comatose condition or in a vegetative state. This Court referred to and deliberated upon the doctrine of parens patriae whereafter it was held that in a case

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like this it is the court alone as the parens patriae which must take the ultimate decision though views of the near relatives, next friend and doctors must be given due weightage. After referring to decisions of various High Courts including our High Court, this Court examined the width and plenitude of the power of the High Courts under Article 226 of the Constitution of India and also relied upon the decision of the Supreme Court in Aruna Ramchadra Shanbaug Vs. Union of India, (2011) 4 SCC 454, and held that when the High Court exercises jurisdiction under Article 226 of the Constitution of India, it does so to further the cause of justice. It was held as under:

"38. From the above, it is clearly deducible that when the High Court exercises jurisdiction under Article 226 of the Constitution of India, it does so to further the cause of justice. To provide justice or discharge ex debito justiciae is the raison d'etre of the courts. The Latin expression ex debito justitiae literally means a debt of justice; on account of justice; a claim the refusal of which would involve an injustice, and therefore, one which justice owes it to the claimant to recognize and allow. The doctrine of ex debito justiciae is well established and requires no

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further elaboration. In addition to Article 226 of the Constitution, such power of the High Court is traceable to section 151 of the Civil Procedure Code, 1908 and section 482 of the Code of Criminal Procedure, 1973."

17.3 While acceding to the prayer of the petitioner in that case, this Court also sounded a note of caution that there should be some kind of monitoring of the functioning of the petitioner as guardian to ensure that guardianship was being used for the benefit of the person who was in a vegetative state observing that such monitoring may be carried out through the forum of Maharashtra State Legal Services Authority constituted under the Legal Services Authorities Act, 1987."

16. Sitting singly one of us (GS Patel J) had a similar application though in a suit on the Original Side in Nitin Thakker and Another v State of Maharashtra and Ors.7 By an order dated 13th August 2020, the Court appointed a Senior Advocate of this Court as the guardian of solicitor who had no family at all but was himself suffering from dementia. In paragraph 20, the decision said:

"20. The present case falls only partly within the provisions of Order 32-A(2)(c) [of the Code of Civil Procedure, 1908]. But as this Plaint points out, the state of the law in India simply does not make any sort of provision for a situation such as the present one. Mr. Damania is neither mentally challenged, nor

7Interim Application No.677 of 2020 in Suit No 42 of 2021.

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of unsound mind nor a minor. He has no family. He is incapacitated by an illness and the current laws of guardianship do not provide any recourse in as situation like this. This is, therefore, something of a vacuum in law. That, however, does not mean that Courts are helpless or that situations such as these should go unattended and unaddressed. I can draw support from the provisions of Order 32-A of the CPC, Kathawalla J's previous order of 6th March 2017 and also in a properly brought Suit make reference to the omnibus provision for doing substantial justice that we find in Section 151 of the CPC. This says that nothing in the CPC limits or otherwise affects the inherent power of the Court to make such orders as may be necessarily for the ends of justice or to prevent the abuse of the process of the Court."

17. This was also considered in Rajni Hariom Sharma."

7. We see no reason to depart from this jurisprudential position in this case.

8. We will appoint the Petitioner as the guardian at law of his spouse but this will remain under the supervision of the Court. This is to avoid any misunderstanding at a later stage and as a matter of abundant caution.

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9. We make an order in the Petition in terms of prayer clause (b) (as amended; the list of properties is at Exhibit-D and not Exhibit- B).

10. Exhibit-D is at pages 23 and 24. First there is listing of the immovable properties both residential and commercial. Then there is listing of the movable properties.

11. So far as immovable properties are concerned,

(a) the Petitioner, Karunakar Narayan Shetty is authorised and entitled by virtue of this order to represent his spouse Netra Karunakar Shetty in regard to her share in all the properties. He is at liberty to take all steps to protect Netra's share in those properties including representing her in any litigation. A Power of Attorney for purposes is not required and is dispensed with.

(b) Karunakar Shetty may in addition, and subject to the consent of his sons in regard to the properties where they also have a share but otherwise on his own where only he and Netra have a share, be entitled to enter into negotiations for a disposal in any form of Netra's share in these properties. However, while negotiations may be conducted, no MoU or agreement is to be signed and no consideration is to be accepted without prior leave of this Court. That leave must be sought in properly drawn Interim Application. The details of the proposed transaction must be disclosed in the Interim Application. The opposite party to the transaction

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must be made a party to that Interim Application. A draft of the proposed document to be executed must be annexed to the Interim Application. This is precisely the kind of order we would make if we were dealing with a minor's share in immovable property.

12. As regards the movable property including shares, mutual funds, insurance policies, life insurance policy, bank accounts and the motor car, Karunakar Narayan Shetty is entitled to deal with Netra's share in all these assets subject only to the condition that any sale proceeds must be credited to Netra's account. All drawings from Netra's account must be used only for Netra's care, upkeep, maintenance and expenses. No gifts, transfers or reimbursement are to made from Netra's account to the accounts of the Petitioner, the sons, or the sons' other family members without leave of the Court (including no gifts or transfers to any grandchildren or Karunakar and Netra). Karunakar Shetty must file a statement of accounts of his transactions from Netra's account before the end of each financial year. This will continue until further orders.

13. For the present we list the Petition for further orders on 14th June 2022.

14. Liberty to Karunakar Shetty to apply at any time, including before the Vacation Bench, in case of difficulty.

(Madhav J. Jamdar, J) (G. S. Patel, J)

17th March 2022