Asha Sharad Bhagwat vs Union Of India Through Its ...
2023 Latest Caselaw 3655 Bom

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                                                                                3-OSWPL-8144-2023.DOC
          signed by
          SHAMBHAVI
SHAMBHAVI NILESH
NILESH    SHIVGAN
SHIVGAN   Date:
          2023.04.15
          11:55:01
          +0530

                        Shivgan



                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   ORDINARY ORIGINAL CIVIL JURISDICTION
                                        WRIT PETITION (L) NO.8144 OF 2023


                        Asha Sharad Bhagwat                                                  ...Petitioner
                              Versus
                        Union of India & Anr                                             ...Respondents


                        Mr Sumeet Mohoklkar, for the Petitioner.
                        Mr Yashodeep Deshmukh, with Vaidehi Pradeep, for Respondent
                             No.1-UOI.
                        Mrs Uma Palsuledesai, AGP, for Respondent No.2-State.


                                                      CORAM: G.S. Patel &
                                                             Neela Gokhale, JJ.

DATED: 13th April 2023 PC:-

1. In several matters earlier, Benches of this Court have granted reliefs that are presently sought in this Writ Petition. The Petitioner is 81 years old. She seeks to be appointed as the guardian in law of her brother Prakash Krishnaji Kanetkar. He is in a coma. By our order of 6th April 2023, we required a neurological examination to be done of Prakash at the Sir JJ Group of Hospitals. Our order of 6th April 2023 reads thus:

"1. The Petitioner seeks to be appointed as legal guardian of her brother, Prakash Krishnaji Kanetkar, who is said to be comatose or in a vegetative state. There is no real opposition to the Petition except that for completeness, we

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would require Prakash Krishnaji Kanetkar to be evaluated by specialist neurological team at the JJ Group of Hospitals and to have that report on file. The Petitioner also says that it is only the Petitioner and her brother Prakash, who are alive. Two deceased sisters and a deceased brother were unmarried and have no legal heirs. One deceased sister Shaila was married but she does not have any heirs. We will require the death certificates of all these persons for completeness of our record.

2. The report of the neurological examination is to be forwarded to Mrs Chavan for the State and to the Registrar General for email. This should be done as early as possible and preferably by 13th April 2023.

3. The Authorities will act on production of authenticated copy of this order.

4. List the matter on 13th April 2023 for compliance."

2. A copy of the report is made available to us. It is taken on record and marked 'X' for Identification with today's date. It is to be preserved with the original papers and is not to be sent for destruction in the normal course. There is also an Additional Affidavit of 9th April 2023 of the Petitioner with additional information. Amongst other things, it provides the death certificates etc of the Petitioner's and Prakash's siblings. The Affidavit is to be filed in the Registry.

3. The report of the Sir JJ Group of Hospitals confirms the statement made in the Petition. Prakash is 71 years old. He was examined at his residence at Kandivli at 10:00 am on 10th April 2023. He has a history of a left basal ganglia bleed with hydrocephalus symptomatic of a decompression craniotomy with a

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right ventricular EVD in 2023. He has a tracheostomy. His pupils are sluggish in reaction to light. He opens his eyes to painful stimuli and occasionally localizes pain. He does not comprehend or obey commands. He has no meaningful response to commands. There is spasticity in the right upper limb and right lower limb. He requires constant medical care, and the report says in turn that he is in a vegetative state. There is no meaningful communication. He needs continued nursing care and treatment as prescribed by the primary neurologist.

4. As we noted at the beginning, there are many other cases where similar orders have been passed. We review some of that law for completeness:

5. In a judgment of 13th December 2021 by a Bench of which one of us (G.S. Patel J) was a member, the law to apply in such matters was examined.1 The same considerations will apply in the present case also. We only need to make a note of our observations in paragraphs 11 to 17 of that order. These are reproduced below.

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

1 Lubina Mohamed Agarwal & Anr v Union of India & Ors, Writ Petition No. 1266 of 2021.

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Writ Court decline the Petition and refuse relief only because there 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,2 and more recently in Shafin Jahan v Asokan KM & Ors.3 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 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,4 a Division Bench of this

2 (2011) 4 SCC 454.

 3       2018 16 SCC.
 4       2020 SCC OnLine Bom 880.




                                 13th April 2023



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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.5 The Petitioner sought an order appointing himself as the guardian of his wife. She too had dementia (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

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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 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

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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 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

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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 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

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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.5By 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 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

5 2020 SCC OnLine Bom 11679.

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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."

6. The result of this discussion is that subject to certain conditions and limitations, we do not have hesitation in granting appropriate relief to the Petitioner. Prayer clauses (a) to (d) of the Petition at pages 19 to 20 read thus:

"(a) Report in respect of medical treatment undergone by Prakash Krishnaji Kanetkar who is in state of coma be kindly called for;

(b) After considering legality, validity and propriety of the same, the Hon'ble Court be pleased to issue appropriate writ, order and direction and be further pleased to declare Petitioner as guardian of Prakash Krishnaji Kanetkar, who is lying in comatose or vegetative state;

(c) The Hon'ble court be pleased to issue appropriate writ, order and direction thereby authorizing or permitting Petitioner to manage and/or dispose of and/or deal with Mr. Prakash Krishnaji Kanetkar's immovable property specified in "Exhibit G" hereto and Hon'ble court be further pleased to authorize and/or permit Petitioner to manage and/or operate and/or deal with Mr Prakash Krishnaji Kanetkar's bank accounts, investments specified

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in "Exhibit H" hereto;

(d) The Hon'ble court be pleased to issue writ, order and direction that all authorities shall accept Petitioner's status as guardian of Shri Prakash Krishnaji Kanetkar and allow her to manage and/or operate Mr Prakash Kanetkar's immovable property as specified in Exhibit "G" and Mr Prakash Kanetkar's bank accounts, investments as specified in "Exhibit H" hereto."

7. For these reasons, Rule, Rule made returnable forthwith by consent.

8. Rule is accordingly made absolute in terms of prayer clauses

(a), (b), (c) (subject to conditions below) and (d). The additional conditions that will apply and attach to this order are as follows:

(a) The Petitioner may draw on any accounts held in the name of the Prakash Krishnaji Kanetkar either solely or jointly but only for the purposes of meeting his needs. She will not effect any transfers, gifts or other distributions to herself or to any of the other family members without prior leave of this Court.

(b) As regards any investments, the Petitioner is at liberty to make or vary these investments provided that the first name in these investments continues to be that of Prakash Krishnaji Kanetkar and that all redemptions, realisations and dividends from such investments are used only for the maintenance, care and upkeep of Prakash.

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(c) No immovable property is to be separately transacted if that property stands in the name of the Prakash Krishnaji Kanetkar without prior leave of this Court. A separate Interim Application is permitted in this Writ Petition for that purpose. This is required for additional protection and to prevent any person from trying to claim rights over immovable properties to which the Prakash is entitled.

9. The Petition is disposed of in these terms. There will be no order as to costs.

10. All Authorities will act on production of an authenticated copy of this order.

 (Neela Gokhale, J)                                           (G. S. Patel, J)





                                  13th April 2023