Fathima Beevi vs Union Of India
2023 Latest Caselaw 1156 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
          THE HONOURABLE MR. JUSTICE SATHISH NINAN
WEDNESDAY, THE 18TH DAY OF JANUARY 2023 / 28TH POUSHA, 1944
                  WP(C) NO. 23461 OF 2022
PETITIONERS:

   1   FATHIMA BEEVI,AGED 64 YEARS,W/O. MUHAMMED KUNJU,
       INCHAKATTU AYYATHU, KAKKAKUNNU, SOORANADU SOUTH,
       KUNNATHUR TALUK, KOLLAM DISTRICT, PIN - 690522
   2   SABEERA BEEVI M,AGED 40 YEARS,D/O. MUHAMMED KUNJU,
       NEHUMA MANZIL, MULLICKALA, THEVALAKKARA VILLAGE,
       KARUNAGAPPALLY TALUK, KOLLAM DISTRICT, PIN - 690524
   3   ABDUL RAHIMAN,AGED 35 YEARS,S/O. MUHAMMED KUNJU,
       INCHAKATTU AYYATHU, KAKKAKUNNU, SOORANADU SOUTH,
       KUNNATHUR TALUK, KOLLAM DISTRICT, PIN - 690522
   4   NAZEERA BEEVI M,AGED 36 YEARS,D/O. MUHAMMED KUNJU,
       INCHAKATTU AYYATHU, KAKKAKUNNU, SOORANADU SOUTH,
       KUNNATHUR TALUK, KOLLAM DISTRICT, PIN - 690522
   5   MUMINATH,AGED 37 YEARS,W/O. LATE ABDUL LATHEEF,
       RAMSAN MANZIL, INCHAKATTU AYYATHU, KAKKAKUNNU,
       SOORANADU SOUTH, KUNNATHUR TALUK,
       KOLLAM DISTRICT, PIN - 690522
   6   SUBAIDA BEEVI,AGED 47 YEARS,D/O. MUHAMMED KUNJU,
       INCHAKATTU AYYATHU, KAKKAKUNNU, SOORANADU SOUTH,
       KUNNATHUR TALUK, KOLLAM DISTRICT, PIN - 690522
         BY ADV K.RAKESH
RESPONDENTS:

   1   UNION OF INDIA,REPRESENTED BY ITS SECRETARY,
       MINISTRY OF HEALTH AND FAMILY WELFARE,
       NEW DELHI, PIN - 100001
   2   THE STATE OF KERALA,REPRESENTED BY ITS SECRETARY,
       HEALTH AND FAMILY WELFARE DEPARTMENT,SECRETARIAT,
       TRIVANDRUM, PIN - 695001
   3   THE DISTRICT COLLECTOR
       COLLECTORATE, KOLLAM, PIN - 691013
   4   THE TAHSILDAR,KUNNATHUR TALUK OFFICE, KUNNATHUR,
       KOLLAM DISTRICT, PIN - 690540
   5   THE SUB REGISTRAR,OFFICE OF THE SUB-REGISTRAR,
       SASTHAMKOTTA, KOLLAM DISTRICT, PIN - 690521
 W.P(C) NO. 23461 OF 2022
                                         -: 2 :-


     6     THE ASSISTANT SURGEON,KERALA HEALTH SERVICES,
           PRIMARY HEALTH CENTRE, SOORANADU SOUTH,
           PATHARAM P.O., KOLLAM DISTRICT, PIN - 690522
             BY ADVS.
             S.MANU(ASGI)
             K.R.RANJITH GOVERNMENT PLEADER
             SATHYASREE PRIYA EASWARAN (AMICUS CURIAE)
             V.RAMKUMAR NAMBIAR (AMICUS CURIAE)


         THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   18.01.2023,           THE   COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
                        Sathish Ninan, J.
               ==============================
                   W.P(C) No.23461 of 2022
                 ==========================
          Dated this the 18th day of January, 2023


                                 JUDGMENT

The Writ Petition is filed by the wife, children

and the daughter-in-law of one 'Muhammed Kunju' who is

allegedly in a comatose state. They have approached this

Court on the basis of the judgment in Sobha

Gopalakrishnan and Others v. State of Kerala and Others

[2019(1) KLT 801] seeking appointment of 1 st petitioner

as guardian of Muhammed Kunju.

2. In Sobha Gopalakrishnan's case, supra, a

Division Bench of this Court held that in respect of a

person lying in a comatose state this Court could

appoint a guardian subject to certain conditions

enumerated therein.

3. According to the petitioners, Muhammed Kunju is

lying in a comatose state as is evidenced by Exts P1 and

P5 medical reports. Property having an extent of 7.58

Ares of land in Survey No.301/13 of Block No.7 in

Sooranadu South Village stands in the name of Muhammed W.P(C) No.23461 of 2022

Kunju. He is being taken care of by the 3 rd petitioner.

Therefore, the petitioners intend to transfer the

property to the name of the 3rd petitioner. It is

accordingly that the petitioners have approached this

Court.

4. Heard the learned counsel for the petitioner,

the learned senior Government Pleader and also the

learned amicus curiae.

5. Though the petitioners would rely on Exts P1 and

P5 medical certificates, they do not specify that

Muhammed Kunju is lying in a comatose state. Section 14

of the Rights of Persons with Disabilities Act, 2016

reads thus:

"14. Provision for guardianship

(1) Notwithstanding anything contained in any other law for the time being in force, on and from the date of commencement of this Act, where a district court or any designated authority, as notified by the State Government, finds that a person with disability, who had been provided adequate and appropriate support but is unable to take legally binding decisions, may be provided further support of a limited guardian to take legally binding decisions on his behalf in consultation with such person, in such manner, as may be prescribed by the State Government:

Provided that the District Court or the designated authority, as the case may be, may grant total support to the person with disability requiring such support or W.P(C) No.23461 of 2022

where the limited guardianship is to be granted repeatedly, in which case, the decision regarding the support to be provided shall be reviewed by the Court or the designated authority, as the case may be, to determine the nature and manner of support to be provided.

Explanation.--For the purposes of this sub-section, "limited guardianship" means a system of joint decision which operates on mutual understanding and trust between the guardian and the person with disability, which shall be limited to a specific period and for specific decision and situation and shall operate in accordance to the will of the person with disability.

(2) On and from the date of commencement of this Act, every guardian appointed under any provision of any other law for the time being in force, for a person with disability shall be deemed to function as a limited guardian. (3) Any person with disability aggrieved by the decision of the designated authority appointing a legal guardian may prefer an appeal to such appellate authority, as may be notified by the State Government for the purpose."

6. The Government has notified Sub Divisional

Magistrate to be the competent authority under Section

14 of the Act. This Court has in Latha T.B. and Others

v. Union of India Represented by Secretary to the

Government and Others (2021) 4 KLT 17 held that, the

"consultation mentioned in Section 14 above is to be

understood as, 'consultation to the extent possible'."

7. In the light thereof, the competent authority

under the Act, if approached, can pass appropriate

orders regarding guardianship.

W.P(C) No.23461 of 2022

8. In the light of the above, the petitioners are

relegated to approach competent authority - Sub

Divisional Magistrate, in terms of Section 14 of the

Rights of Persons With Disabilities Act, 2016. If such

an application is filed, the same shall be considered as

expeditiously as possible and at any rate within a

period of three months from the date of receipt of a

copy of this judgment.

Writ Petition is disposed of as above.

Sd/-

Sathish Ninan, Judge vdv W.P(C) No.23461 of 2022

APPENDIX OF WP(C) 23461/2022

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED BY THE 6TH RESPONDENT DATED 26-5-2022 Exhibit P2 TRUE COPY OF THE FAMILY MEMBERSHIP CERTIFICATE OF 'MUHAMMED KUNJU' ISSUED FROM SOORANADU SOUTH VILLAGE OFFICE DATED 12-4-2022 Exhibit P3 TRUE COPY OF THE TAX RECEIPT ISSUED FROM THE VILLAGE OFFICE, SOORANADU SOUTH DATED, 15-7-2020 Exhibit P4 TRUE COPY OF THE DEATH CERTIFICATE OF THE HUSBAND OF THE 5TH PETITIONER ISSUED BY EMBASSY OF INDIA, RIYADH DATED, 10-2-2016 Exhibit P5 TRUE COPY OF CERTIFICATE ISSUED BY A NEUROLOGIST OF VALIYATH INSTITUTE OF MEDICAL SCIENCE DATED 29-11-2022