Bombay High Court
Mayuresh Dipak Nadkarni vs Union Of India Through The Department Of ... on 12 January, 2024
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2024:BHC-OS:936-DB
927-WP-140-2024.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 140 OF 2024
Mayuresh Dipak Nadkarni ... Petitioner
Versus
Union of India & Ors. ...Respondents
Mr. Mahesh Londhe a/w Mr. Rahul Sanghavi i/b Sanjay udeshi & Co., for
Petitioner.
Mrs. Shehnaz V. Bharucha for UOI/Respondent No.1.
Smt. Jyoti Chavan, Addl., G. P. for State.
_______________________
CORAM: G. S. KULKARNI &
FIRDOSH P. POONIWALLA, JJ.
DATED: 12 January, 2024
_______________________
Oral Judgment : (Per G. S. Kulkarni, J.)
1. Human suffering is integral to one's life and when it crosses human
confines, the ordeals can only be imagined.
2. The inability of the father to look after himself and his property on
account of old age deformities and the circle of incapable suffering, has made
the petitioner-his son to knock the doors of the Court, by filing this petition
under Article 226 of the Constitution of India, inter alia praying for a writ to
hold and declare the Petitioner - Mayuresh Dipak Nadkarni as a legal
Guardian of his father Respondent No.5-Mr. Dipak Narayan Nadkarni, who is
suffering from the Alzheimer disease. Another relief is for a direction to all the
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authorities within the meaning of Article 12 of the Constitution of India to
accept the status of the Petitioner as the legal Guardian of Respondent No.5 -
Mr. Dipak Narayan Nadkarni, and allow the petitioner to manage his movable
and immovable properties.
3. It is the case of the petitioner that the petitioner's father is about 71 years
in age. He is suffering from Alzheimer disease. On account of such medical
condition, he is unable to take care of his person, much less of his property
movable and immovable. The petitioner has contended that his mother, who
is impleaded as Respondent No.3 (wife of Respondent No.5) is also a senior
citizen who is also not in a physical condition to take care of Respondent No.5.
The brother of the petitioner/respondent No.4 is also not available in India to
look after his father and/or to manage his affairs, as he is based in a foreign
country. The petitioner's mother and brother have executed affidavits
confirming that the petitioner be appointed as the guardian of his father-
Respondent No.5, for which they have no objection. Such affidavits are placed
on record.
4. The petitioner has contended that considering the peculiar health of his
father, it is imperative that the petitioner is appointed as a legal guardian of his
father, under the orders passed by this Court, as there is no provision under the
Mental Healthcare Act, 2017 or under the Hindu Minority and Guardianship
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Act, 1956 for appointing a son or a daughter or a sibling, of an aged person
suffering from mental health issues, to be a legal guardian of such person. It is
the petitioner's contention that similar cases had reached this Court wherein
the Court, considering the facts which were akin to the present case, had held
that it would be in the best of interest of the dependent person as also
necessary for the welfare of such persons, by appointing the petitioners before
the Court as legal guardians on being satisfied that the person who was
entrusted with such responsibility was a fit and suitable person for discharging
such responsibility. In support of such contention, reliance is placed on a
decision of a co-ordinate Bench of this Court in the case of Anushka Raju
Mohite Vs. Union of India1, of which one of us (Firdosh P. Pooniwalla, J.) was
a member.
5. The petitioner in supporting the contentions as raised in the petition has
relied on medical material namely a certificate of Dr. H.S. Bailur, certifying that
the petitioner's father, who is 71 years old, is suffering from Alzheimer disease
since last about two years. The petitioner has also placed on record a list of
movable and immovable properties belonging to his father which includes
details of the seven saving Bank Accounts, Fix Deposits, Demat Account, LIC
Policy and immovable property namely a flat as set out at item 17 of the said
list (annexed at page 36 of the paper book). The petitioner has also placed on
1 Writ Petition (L) No.25114 of 2023 decided on 6 October 2023
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record an affidavit of his brother-respondent No.4 dated 29 December 2023,
who has also confirmed that his father is suffering from Alzheimer disease since
last two years. He has stated that his father is incapable of taking care of himself
and is totally dependent upon others and his brother for his day to day
activities, and hence, it is necessary that a fit and proper person be appointed as
guardian. He has stated that he is a citizen of Canada and presently residing at
Atlanta, USA, hence, he is unable to act as a guardian of his father. He has
consented for the petitioner to be appointed as a guardian to enable the
petitioner to take care of his father and his property as the guardian. He has
given an unconditional declaration of such no objection and that he would not
object to any action taken by the petitioner for appointing him as a guardian
and also to any action/activities taken by him after he is appointed as guardian.
Similar affidavit is filed by the petitioner's mother which is dated 29 December
2023.
6. Considering the nature of the prayers, so as to ascertain the medical
condition of the petitioner's father, by our order dated 3 January 2024, we had
requested the Dean of the J.J. Group of Hospitals to constitute a "Medical
Board", which would include a Neurologist to examine Respondent No.5 on
his medical condition as certified by Dr. H.S.Bailur, and make a report to this
Court.
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7. In pursuance of our direction, a report is placed on record by the Dean,
J.J. Group of Hospitals, dated 9 January 2024 under a covering letter as
addressed to the learned Government Pleader. The report sets out that a three
member Medical Board was appointed which consisted of experts comprising
of Dr. Akash Chheda, Associate Professor, Department of Neurology, Dr.
Mithali Umate, Associate Professor, Department of Psychiatry, Dr. Kalpita Pai,
Assistant Professor, Department of Pharmacology. The Medical Board, so
constituted, has made a report that Mr. Dipak Narayan Nadkarni/Respondent
No.5 is suffering from "major cognitive disorder" and that his disease involves
progressive and irreversible cognitive decline. It is certified that he would
require constant nursing care and assistance in daily activities. It is also
recorded that he has recent memory impairment and that he is not able to do
simple calculations. We take such report on record which is marked 'X' for
identification along with the covering letter. We accept such report as
submitted by the Medical Board.
8. The petitioner has raised a contention that there is no provision under
the prevalent laws for appointing a relative which may include son, daughter or
a sibling, of the person suffering from mental health issues, to be a legal
guardian of such person. The contention appears to be quite correct. In such
context, we may note the relevant legislations, which concern the welfare of
persons who are incapable of taking care of themselves. The Guardian and
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Wards Act, 1890 deals with appointment of guardian for person and property
of minors. Also the Hindu Minority and Guardianship Act, 1956 has
provisions which ordain parents as the natural guardian for minor in respect of
not only his person, but also his property. The guardian so appointed would be
required to act in accordance with the provisions of the said Act. Another
legislation is the National Trust for Welfare of Persons with Autism, Cerebral
Palsy, Mental Retardation and Multiple Disability Act, 1999 which inter alia
makes provision for the appointment of guardian and trustees for persons with
disabilities. Section 14 of this Act provides that an application can be made by
a parent, relative or registered organisation to the Local Level Committee
constituted under the Act for appointment of a guardian of a person with
disability. The guardian so appointed would be required to cater to the welfare
and care of the person so suffering and would be accountable for maintenance
of his property in the manner as provided under the Act. The Rights of
Persons with Disabilities Act, 2016 is a legislation which inter alia gives effect
to the United Nations Convention on Rights of Persons with Disabilities and
the matters connected therewith. The act defines "person with disability"
under Section 2(s) to mean a person with long term physical, mental,
intellectual or sensory impairment which, in interaction with barriers, hinders
his full and effective participation in society equally with others. Section
38 of this Act are special provisions for persons with disabilities with
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high support. This legislation provides for rights and entitlement of such
persons, education, skill development and employment, their social security,
health, rehabilitation and recreation. The Mental Healthcare Act, 2017 is
another legislation which is a successor legislation to the erstwhile legislation
namely the Mental Health Act, 1987. The Parliament has enacted this Act to
provide for mental healthcare and services for persons with mental illness and
to protect, promote and fulfill the rights of such persons during delivery of
mental healthcare and services and for matters connected therewith or
incidental thereto considering the Convention on Rights of Persons with
Disabilities and its Optional Protocol adopted on the 13 th December, 2006 at
United Nations Headquarters in New York, which India has signed and ratified
on 01 October, 2007. The statement of objects and reasons of the Healthcare
Act inter alia states that the need for amendments to the Mental Health Act,
1987 was felt by the fact that the related law, i.e. the Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full Participation) Act, 1995,
was also in the process of amendment. It is further stated that the Mental
Health Act, 1987 could not protect the rights of persons with mental illness
and promote their access to mental health care in the country. Also there are
provisions under the Code of Civil Procedure, 1908 Order XXXII. Rule 15
thereof provides that Rules 1 to 14 (except Rule 2-A) shall, so far as may be,
apply to persons adjudged, before or during the pendency of the suit, to be of
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unsound mind and shall also apply to persons who, though not so adjudged,
are found by the Court on enquiry to be incapable, by reason of any mental
infirmity, of protecting their interest when suing or being sued. This provision
is not a provision where a person in urgent circumstances can seek a relief of a
declaration that he be appointed as guardian of a person with such mental
infirmities.
9. It is thus clearly seen from all these legislations that they do not provide
for a concrete mechanism in regard to urgent appointment of a legal guardian
of persons who are medically incapacitated to take their own decisions, and
manage their properties. Such vacuum in law, however, cannot adversely affect
the pressing human needs, not only to cater to the person's medical expenses,
but also to the effect, that such situation does not prejudicially affect his
property and prevent the same from being wasted and/or not enuring to his
own benefit in such helpless situation.
10. It is thus quite clear that in the circumstances as in the present case, the
Courts have consistently taken a view of the legal vacuum created by non-
availability of adequate provisions under the Mental Health Care Act, 2017 as
also under the Hindu Minority and Guardianship Act, 1956 and the other laws
as discussed hereinabove. The High Courts in such cases have exercised
jurisdiction under Article 226 to appoint legal guardian of a person who is
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suffering with serious medical disabilities also in the interest of the very
survival of such person who is completely dependent on others.
11. In exercising such jurisdiction, the High Courts have invoked the
doctrine of parens patriae. The doctrine of parens patriae has been described
in the Black's Law Dictionary as under:
"parens patriae (par-enz pay-tree-ee or pa-tree-i). [Latin "parent of his or
her country"]). 1. The State regarded as a sovereign; the state in its
capacity as provider of protection to those unable to care for themselves
<the attorney general acted as parens patriae in the administrative
hearing>; in Roam Law, the emperor. [Cases: States <=1. C.J.S. States; 2,
16.] 2. A doctrine by which a government has standing to prosecute a
lawsuit on behalf of a citizen, especially on behalf of someone who is
under a legal disability to prosecute the suit. < parens partiae allowed the
state to institute proceedings> The State ordinarily has no standing to
sue on behalf of its citizens, unless a separate, sovereign interest will be
served by the suit. - Also termed doctrine of parens patriae. []cASES:
Infants <= 2; States <= 190. c.j.s. Infants ; 12, 108, 198; States ; 297,
314.]"
12. The Supreme Court in Charan Lal Sahu vs. Union of India 2 has
explained the doctrine of parens patriae as a right and duty of the sovereign in
public interest to protect the interest of the persons with disabilities and has
recognised such doctrine being applied under the Indian legal jurisprudence.
In paragraph 35 of the decision, the Supreme Court observed thus:
"35. There is the concept known both in this country and abroad,
called parens patriae. Dr B.K Mukherjea in his "Hindu Law of Religious
and Charitable Trust", Tagore Law Lectures, Fifth Edition, at page 404,
referring to the concept of parens patriae, has noted that in English law,
the Crown as parens patriae is the constitutional protector of all property
subject to charitable trusts, such trusts being essentially matters of public
2 (1990) 1 SCC 613
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concern. Thus the position is that according to Indian concept parens
patriae doctrine recognized King as the protector of all citizens and as
parent. In Budhkaran Chaukhani v. Thakur Prosad Shah AIR 1942 Cal
331 the position was explained by the Calcutta High Court at page 318
of the report. The same position was reiterated by the said High Court in
Banku Behary Mondal v. Banku Behary Hazra AIR 1943 Cal 203 at
page 205 of the report. The position was further elaborated and
explained by the Madras High Court in Medai Dalavoi T. Kumaraswami
Mudaliar v. Medai Dalavoi Rajammal AIR 1957 Mad 563 at page 567 of
the report. This Court also recognized the concept of parens patriae
relying on the observations of Dr Mukherjea aforesaid in Ram Saroop v.
S.P Sahi 1959 Supp 2 SCR 583 at pages 598 and 599. In the "Words
and Phrases" Permanent Edition, Vol. 33 at page 99, it is stated that
parens patriae is the inherent power and authority of a legislature to
provide protection to the person and property of persons non sui juris,
such as minor, insane, and incompetent persons, but the words parens
patriae meaning thereby 'the father of the country', were applied
originally to the King and are used to designate the State referring to its
sovereign power of guardinaship over persons under disability.
(emphasis supplied) Parens patriae jurisdiction, it has been explained, is
the right of the sovereign and imposes a duty on sovereign, in public
interest, to protect persons under disability who have no rightful
protector. The connotation of the term parens patriae differs from
country to country, for instance, in England it is the King, in America it
is the people, etc. The Government is within its duty to protect and to
control persons under disability. Conceptually, the parens patriae theory
is the obligation of the State to protect and takes into custody the rights
and the privileges of its citizens for dischargings its obligations. Our
Constitution makes it imperative for the State to secure to all its citizens
the rights guaranteed by the Constitution and where the citizens are not
in a position to assert and secure their rights, the State must come into
picture and protect and fight for the rights of the citizens. The Preamble
to the Constitution, read with the Directive principles, articles 38, 39
and 39-a enjoin the State to take up these responsibilities. It is the
protective measure to which the social welfare state is committed. It is
necessary for the State to ensure the fundamental rights in conjunction
with the Directive Principles of State Policy to effectively discharge its
obligation and for this purpose, if necessary, to deprive some rights and
privileges of the individual victims or their heirs to protect their rights
better and secure these further. Reference may be made to Alfred L.
Snapp & Son, Inc. v. Puerto Rico 73 L Ed 2d 995 in this connection.
There it was held by the Supreme Court of the United States of America
that Commonwealth of Puerto Rico have standing to sue as parens
patriae to enjoin apple growers' discrimination against Puerto Rico
migrant farm workers. This case illustrates in some aspect the scope of
parens patriae. The Commonwealth of Puerto Rico sued in the United
States District Court for the Western District of Virginia, as parens
patriae for Puerto Rican migrant farmworkers, and against Virginia
apple growers, to enjoin discrimination against Puerto Ricans in favour
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of Jamaican workers in violation of the Wagner-Peyser Act, and the
Immigration and Nationality Act. The District Court dismissed the
action on the ground that the Commonwealth lacked standing to sue,
but the Court of Appeal for the Fourth Circuit reversed it. On certiorari,
the United States Supreme Court affirmed. In the opinion by White, J.,
joined by Burger, C.J and Brennan, Marshall, Blackmun, Rehnquist,
Stevens, and O'Connor, JJ., it was held that Puerto Rico had a claim to
represent its quasi-sovereign interests in federal court at least which was
as strong as that of any State, and that it had parens patriae standing to
sue to secure its residents from the harmful effects of discrimination and
to obtain full and equal participation in the federal employment service
scheme established pursuant to the Wagner-Peyser act and the
immigration and nationality act of 1952. Justice White referred to the
meaning of the expression parens patriae. According to Black's Law
Dictionary, 5th edn. 1979, page 10003, it means literally 'parent of the
country' and refers traditionally to the role of the State as a sovereign
and guardian of persons under legal disability. Justice White at page
1003 of the report emphasised that the parens patriae action had its roots
in the common law concept of the "royal prerogative". The royal
prerogative included the right or responsibility to take care of persons
who were legally unable, on account of mental incapacity, whether it
proceeds from nonage, idiocy or lunacy to take proper care of themselves
and their property. This prerogative of parens patriae is inherent in the
supreme power of every state, whether that power is lodged in a royal
person or in the legislature and is a most beneficent function. After
discussing several cases Justice White observed at page 1007 of the
report that in order to maintain an action, in parens patriae, the State
must articulate an interest apart from the interests of particular parties,
i.e the State must be more than a nominal party. The State must express
a quasi-sovereign interest. Again an instructive insight can be obtained
from the observations of Justice Holmes of the American Supreme Court
in the case of State of Georgia v. Tennessee Copper Co. 51 L Ed 1038,
which was a case involving air pollution in Georgia caused by the
discharge of noxious gases from the defendant's plant in Tennesee.
Justice Holmes at page 1044 of the report described the State's interest
as follows:
"This is a suit by a State for an injury to it in its capacity of quasi-
sovereign. In that capacity the State has an interest independent of
and behind the titles of its citizens, in all the earth and air within its
domain. It has the last word as to whether its mountains shall be
stripped of their forests and its inhabitants shall breathe pure air. It
might have to pay individuals before it could utter that word, but
with it remains the final power....
... When the States by their union made the forcible abatement of
outside nuisances impossible to each, they did not thereby agree to
submit to whatever might be done. They did not renounce the
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possibility of making reasonable demands on the ground of their still
remaining quasi-sovereign interests..."
13. In Aruna Ramachandra Shanbaug v. Union of India 3 which was a case of
a comatose lady, the Supreme Court invoking the doctrine of ex debito justitiae
and the parens patriae doctrine observed thus:-
"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 literallyh 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."
130. In our opinion, in the case of an incompetent person who is
unable to take a decision whether to withdraw life support or not, it is
the Court alone, as parens patriae, which ultimately must take this
decision, though, no doubt, the views of the near relatives, next friend
and doctors must be given due weight."
14. We may also refer to another decision of a recent origin in Shafin Jahan
vs. Asokan K.M. & Ors.4 in which the Supreme Court elaborately discussed the
principles of parens patriae. The Supreme Court referring to the decisions of
Charan Lal Sahu (supra), Anuj Garg vs. Hotel Association of India5, Aruna
Ramachandra Shanbaug (supra) and State of Kerala vs. N.M. Thomas 6,
observed that Constitutional Courts in this country would exercise parens
3 (2011) 4 SCC 454
4 (2018) 16 SCC 368
5 (2008) 3 SCC 1
6 (1976) 2 SCC 310
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patriae jurisdiction inter alia in matters of child custody and in exceptional
situation by setting out illustrations, in case of persons who are mentally ill.
The relevant observations of the Supreme Court in this context are required to
be noted, which reads thus:
"38. In Aruna Ramachandra Shanbaug v. Union of India (2011) 4
SCC 454, the Court, after dealing with the decision in State of Kerala v.
N.M. Thomas (1976) 2 SCC 310 wherein it has been stated by Mathew,
J. that "the Court also is 'State' within the meaning of Article 12 (of the
Constitution) ...", opined: (Aruna Shanbaug case, SCC p. 521, para 130)
"130. In our opinion, in the case of an incompetent person who is
unable to take a decision whether to withdraw life support or not, it
is the Court alone, as parens patriae, which ultimately must take this
decision, though, no doubt, the views of the near relatives, next
friend and doctors must be given due weight."
39. Constitutional Courts in this country exercise parens patriae
jurisdiction in matters of child custody treating the welfare of the child
as the paramount concern. There are situations when the Court can
invoke the parens patriae principle and the same is required to be
invoked only in exceptional situations. We may like to give some
examples. For example, where a person is mentally ill and is produced
before the court in a writ of habeas corpus, the court may invoke the
aforesaid doctrine. On certain other occasions, when a girl who is not a
major has eloped with a person and she is produced at the behest of
habeas corpus filed by her parents and she expresses fear of life in the
custody of her parents, the court may exercise the jurisdiction to send
her to an appropriate home meant to giveshelter to women where her
interest can be best taken care of till she becomes a major.
40. In Heller v. Doe 509 US 312 (1993), Justice Kennedy, speaking
for the U.S. Supreme Court, observed:
"... the State has a legitimate interest under its Parens Patriae powers in
providing care to its citizens who are unable ..... to care for themselves."
41. The Supreme Court of Canada in E. v. Eve [1986] 2 SCR 3888
observed thus with regard to the doctrine of Parens Patriae: (SCC
OnLine Can SC paras 75-77)
The Parens Patriae jurisdiction for the care of the mentally
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incompetent is vested in the provincial superior courts. Its exercise is
founded on necessity. The need to act for the protection of those
who cannot care for themselves. The jurisdiction is broad. Its scope
cannot be defined. It applies to many and varied situations, and a
court can act not only if injury has occurred but also if it is
apprehended. The jurisdiction is carefully guarded and the courts
will not assume that it has been removed by legislation.
While the scope of the parens partiae jurisdiction is unlimited,
the jurisdiction must nonetheless be exercised in accordance with its
underlying principle. The discretion given under this jurisdiction is
to be exercised for the benefit of the person is need of protection and
not for the benefit of others. It must at all times be exercised with
great caution, a caution that must increase with the seriouness of the
matter. This is particularly so in cases where a court might be
tempted to act because failure to act would risk imposing an
obviously heavy burden on another person.
........
45. Thus, the Constitutional Courts may also act as Parens Patriae so
as to meet the ends of justice. But the said exercise of power is not
without limitation. The courts cannot in every and any case invoke the
Parens Patriae doctrine. The said doctrine has to be invoked only in
exceptional cases where the parties before it are either mentally
incompetent or have not come of age and it is proved to the satisfaction
of the court that the said parties have either no parent/legal guardian or
have an abusive or negligent parent/legal guardian."
(emphasis supplied)
15. We may now refer to the decisions as rendered by the different High
Courts exercising jurisdiction under Article 226 of the Constitution of India
considering the doctrine of parens patriae by entertaining writ petitions in the
appointment of legal guardians of persons who were suffering from major
cognitive disorders.
16. In Sairabanu Mohammed Rafi Vs. State of Tamil Nadu 7, the petitioner
in regard to her husband one Mohammed Rafi approached the Madras High
7 2016 SCC OnLine Mad 8091
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Court by a writ petition under Article 226 of the Constitution of India seeking
a direction to appoint her as a guardian of her husband and as the Manager for
the purpose of managing and selling the immovable properties. In such case,
her husband was stated to be in a condition of coma. As there was no dispute
on the medical condition of the petitioner's husband, the Court observing that
neither under the Mental Health Act nor under the Guardian and Wards Act,
1890, there was any provision for appointment of a guardian in such a
situation. It was observed that although the petitioner could have approached
the jurisdictional Civil Court by way of common law remedy, in view of the
urgency expressed, coupled with the fact that there was no dispute on facts, the
Court appointed the petitioner as guardian of her husband, so as to enable her
to deal with his immovable properties and also for the purpose of operating his
bank accounts.
17. The Delhi High Court in Pratibha Pande and Anr. Vs. Union of India
and Ors.8 was considering the petitioner's prayer of appointing her as a
guardian of her mother, who was suffering from multiple disabilities and who
was lying in a comatose position. In the said case, the petitioner had earlier
approached the Local Level Committee (LLC) constituted under Section 13 of
the National Trust Act, which had rejected the daughter's (petitioner no.2's)
application. Considering the prayers as made in the writ petition, the Court
8 2016 SCC OnLine Del 1167
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recorded that it was not in dispute that de hors the provisions of the National
Trust Act and Disabilities Act, the Court in exercise of powers under Article
226 of the Constitution was required to appoint the daughter (petitioner no.1)
as the guardian of her mother and accordingly appointed her as the guardian,
of the person and property movable and immovable of the ailing mother.
18. A Division Bench of this Court in Vijay Ramachandra Salgaonkar Vs.
State9 was concerned with a similar prayer made in the proceedings filed under
Article 226 of the Constitution of India, wherein the petitioner had prayed for
a direction to declare him as the guardian of his wife Mrs. Veena Salgonkar in
respect of her properties. The petitioner's wife was described to be "living
dead". She was suffering from vascular dementia with diabetes mellitus and
hypertension. Because of her debilitating health condition, she was unable to
take care of herself much less of her property. In these circumstances, the
Court referring to the decision of the Madras High Court in Sairabanu
Mohammed Rafi (supra) as also the orders of the Division Bench passed in
Philomena Leo Lobo Vs. Union of India, Sikha Arijit Bhattacharya vs. Union
of India, Smt. Reshma Salam Kondkari Vs. Union of India and Rajni Hariom
Sharma Vs. Union of India, the petitioner's husband was appointed as the legal
guardian of his wife. In passing such order, the Court also observed that there
is no legislation in India relating to the appointment of guardians to patients
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lying in comatose or vegetative state. Similar view has been taken by the
Division Bench in Purnima Kantharia Vs. Union of India and others10.
19. In Anushka Raju Mohite (supra) the petitioner - daughter of respondent
no.5, who was suffering from Alzheimer disease who was unable to take care of
herself on account of her medical condition, had filed the proceedings before
this Court. Considering the fact that she was the only child and she was taking
care of her mother's day to day needs, as also incurring expenses on her
medical treatment, the Court has appointed her as the legal guardian. In
passing such order, the Court also considered the decisions in case of Vijay
Ramachandra Salgaonkar Vs. State (supra), Purnima Kantharia Vs. Union of
India and others (supra) and Aruna Ramachandra Shanbaug v. Union of India
(supra). The Court also invoked the doctrine of parens patriae to pass an order
appointing the petitioner as the legal guardian of her mother.
20. In the light of the above discussion, we see no harm in the petitioner
espousing the cause of his father in the present proceedings. There is no
dispute on facts inasmuch as the petitioner's father has been certified by the
medical board to be suffering from the Alzheimer disease. He is unable to
function normally, he is completely dependent on others. It is the petitioner
who is taking care of his father also due to the inability of the other members of
the family. In these circumstances, we are of the clear opinion that it is
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eminently in the interest of justice that the petitioner is appointed as a legal
guardian of his father/respondent no.5. The decisions as noted by us above are
squarely applicable in the present case. The common thread which would run
through these decisions is that the Court is not powerless to resolve such
human problems and difficulties which would arise in regard to the property of
such persons considering the medical condition they suffer. The law would
thus come to the aid of such ailing person in managing his property by his next
kith and kin by appointing a legal guardian.
21. In the light of the above discussion, we allow the petition in terms of the
following directions:-
ORDER
(i) The petitioner Mayuresh Dipak Nadkarni shall be treated and accepted
as the legal guardian of his father Mr. Dipak Nadkarni (respondent no.5).
(ii) All authorities shall accept the status of the petitioner Mayuresh Dipak
Nadkarni as legal guardian of Mr. Dipak Nadkarni and allow him to operate
the bank accounts and manage the movable and immovable properties of Mr.
Dipak Nadkarni as set out in the petition.
iii. The petition is accordingly disposed of in the above terms. No costs.
(FIRDOSH P. POONIWALLA, J.) (G. S. KULKARNI , J.)
12 January, 2024
Kiran Kawre
