Bombay High Court
Amjad Ahmed Shaikh vs State Of Maharashtra Through ... on 29 March, 2023
Bench: G.S. Patel, Dr. Neela Gokhale
2023:BHC-OS:2121-DB 19-OSWP-5297-2022.DOC
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 5297 OF 2022
Amjad Ahmed Shaikh ...Petitioner
Versus
State of Maharashtra Through Ministry of Health ...Respondent
And Family Welfare
Mr Mehul A Shah, for the Petitioner.
Mr Sandeep Jalan, for Respondents Nos 3 to 13.
Mr SB Gore, AGP, with Jyoti Chavan, AGP, for the Respondent-
State.
CORAM G.S. Patel &
Neela Gokhale, JJ.
DATED: 29th March 2023
PC:-
1. The Petitioner seeks an order appointing and declaring him
ARUN
as the legal guardian of his mother, Shenaz Ahmed Shaikh. She is
RAMCHNDRA
SANKPAL
the 2nd Respondent. She suffers from chronic paranoid
Digitally signed by
ARUN
RAMCHNDRA
SANKPAL
schizophrenia with diabetes. She is unable to attend to her daily
Date: 2023.03.30
10:21:50 +0530
affairs and cannot take decisions in regard to her properties.
Respondents Nos. 3 to 8 are the siblings of the Petitioner, i.e., also
children of the 2nd Respondent. The 9th Respondent is the second
wife of the Petitioner's father and Respondents Nos. 10 to 13 are
their children. They are all represented before us and all consent to
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the order. An Affidavit to that effect is filed. The reliefs in the
Petition are these:
"(a) That this Hon'ble Court be pleased to issue a Writ of
Mandamus or any other Writ, Order or direction in the
nature of Mandamus under Article 226 of the Constitution
of India, thereby holding and declaring the Petitioner as
legal guardian of Shenaz Ahmed Shaikh, Respondent No. 2,
who is suffering from chronic Paranoid Schizophrenia with
diabetes mellitus;
(b) That this Hon'ble Court be pleased to issue a Writ of
Mandamus or any other Writ, Order or direction in the
nature of Mandamus under Article 226 of the Constitution
of India, thereby declaring that the Petitioner as legal
guardian of Shenaz Ahmed Shaikh, Respondent No. 2, for
and on her behalf is authorised and competent to sign all
deeds and documents, register and admit execution thereof
before the concerned authorities, manage and administer
her movable and immovable properties inter alia consisting
of selling her undivided share, right, title and interest in
piece or parcel of land or ground with messuages,
tenements and dwelling houses known as Krishna Bhavan
on Plot bearing C.T.S. No.H/517, Old Survey No.91, Plot
No.4 containing by admesurements 993 sq. yards equivalent
to 830.24 sq. mtrs or thereabouts situate lying and being at
2nd Hasnabad Lane, Santacruz (West) in the registration
District and Sub-District of Bombay City and Bombay
Suburban."
2. In Nirupama Jitendra Mehta v State of Maharashtra,1 a
Division Bench of which one of us (GS Patel J) was a member,
considered a similar situation. That Bench held:
10. In our judgment of 13th December 2021, in the
1 Writ Petition No. 3313 of 2021, decided on 17th December 2021.
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matter of Lubina Mohamed Agarwal & Anr vs Union of India
& Ors,2 we examined the law in such matters. 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 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
3 (2011) 4 SCC 454.
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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
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
4 2018 16 SCC.
5 2020 SCC OnLine Bom 880.
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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 (apart from
other ailments). The Bench reviewed some of
the case law on the subject and in paragraphs
15 to 16 held:
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"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
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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
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
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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
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
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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
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
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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
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 Interim Application No.677 of 2020 in Suit No 42 of 2021.
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3. We follow the same course here.
4. Accordingly, we issue Rule, make it returnable forthwith and
make it absolute in terms of prayer clauses (a) and (b) set out above.
5. This is subject to the following conditions:
(a) The Petitioner may draw on any accounts held in the
name of the 2nd Respondent mother either solely or
jointly but only for the purposes of meeting her needs.
He will not effect any transfers, gifts or other
distributions to himself or to any of the other family
members without prior of 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
the 2nd Respondent and that all redemptions,
realisations and dividends from such investments are
used only for the maintenance, care and upkeep of the
2nd Respondent.
(c) No immovable property is to be separately transacted if
that property stands in the name of the 2nd
Respondent 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
2nd Respondent is entitled.
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6. The Petition is disposed of in these terms. No costs.
(Neela Gokhale, J) (G. S. Patel, J)
29th March 2023
