Prathiba M. Singh, J. (Oral)

1. This hearing has been done through hybrid mode.

2. Ms. K.A. who is the fulcrum of this writ petition is a 95 years old senior citizen. She had one son Mr. J.A. was married to Ms. N.A. Through the son she has two granddaughters i.e. Ms. S.J., Ms. M.A. and one grandson Mr. U.A.

3. The present writ petition has been filed by the Petitioners i.e., Ms. N.A. and the two granddaughters seeking the following reliefs:

“a) Pass a writ, order or direction in the nature of declaration appointing Mrs. N.A., Ms. S.J. and Ms. M.A. as the guardians of Mrs. K.A. with regards to all matters relating to her estate including but not limited immovable and movable properties, financial affairs, social security funds, etc., on such terms and conditions, if any, that this Hon’ble Court deems appropriate;

b) Pass a further writ, order or direction in the nature of Mandamus directing the Respondent no.1 and/or any such other authority as this Hon’ble Court deems appropriate, to ensure that the Petitioners are facilitated in all respects to effectively discharge their duties as the legal guardians of Mrs. K.A. and in relation to her estate;

c) Pass any other order(s) that this Hon 'ble Court may deem fit and proper in the facts and circumstances of the case.”

4. It is submitted by the Petitioners that in 2009 Ms. K.A. had a major accidental fall. Due to the fall, she suffered brain injuries. According to the Petitioners, over the years, the impact of the brain injuries has got worse, which slowly impaired her cognitive abilities, including her ability to think, speak, move and recognise people.

5. Ms. K.A. had issued a general power of attorney dated 19th February, 2010 in favour of her son Mr. J.A. The same is placed on record. As per the said general power of attorney, she permitted her son to take decisions on her behalf in respect of movable and immovable property. However, Mr. J.A. unfortunately passed away on 30th June, 2019. Since then, considering the physical and mental state of Ms. K.A. she has been unable to exercise any control over her movable or immovable properties. It is also submitted that Respondent No.2 - Mr. U.A., the grandson of Ms. K.A. is a resident of the USA.

6. It is submitted that in February 2022, Ms. K.A. was hospitalized due to certain Covid-19 precautionary measures. However, during her examination, it was observed that that due to her advanced age and mental condition, she was no longer in control of her mental faculties. Thus, it is the Petitioners’ case that Ms. K.A. ought to be treated as being a mentally disabled person under the Rights of Persons with Disabilities Act, 2016 (RPWD Act, 2016).

7. In the present petition, vide order dated 20th July, 2022, the Court had, sought a status report from the District Magistrate and two responsible officials. Thereafter, vide order dated 12th September 2022 the Court directed qualified doctors to assess the situation and file a status report. Further, vide order dated 31st October, 2022, the Court directed for the constitution of a medical board/ team of doctors employed with reputed Government Hospital, including a specialist in Neurology in order to assess the condition of Ms. K.A and file a status report. All three status reports have been placed on record.

8. Mr. Jai Sahai Endlaw, ld. Counsel appearing for the Petitioners submits that the said status reports leave no manner of doubt that Ms. K.A. is in a vegetative condition. He has taken the Court through the status reports to argue that in view of her medical condition the Petitioners ought to be appointed as guardian of Ms. K.A. He also submits that Respondent No.2 has provided an affidavit of no objection for the same.

9. Mr. Anuj Aggarwal, ld. ASC, appearing for the GNCTD submits that the latest status report dated 22nd December 2022 issued by the Medical Board also states that Ms. K.A. suffers from major neurocognitive impairment.

10. The Court has perused all the three status reports. The first status report dated 8th August, 2022 has been issued by the Administrator (One Stop Centre) and the Tehsildar (Defence Colony). The said status report shows that Ms. K.A. is confined to her bed and is unable to get up and move. It submits that she is unable to comprehend what is being asked or to identify anyone. Further, she does not show any sense of awareness nor does she respond to anyone talking to her.

11. The second status report dated 3rd October, 2022 issued by the Medical Officer DGD, Sarai Kale Khan, Administrator (One Stop Centre) and the Tehsildar (Defence Colony) confirms that Ms. K.A. is on a wheelchair assisted by a nurse. She is unable to respond to any commands, is not oriented to time, place and person and is dependent on the nurse for all activities.

12. The final status report dated 22nd December 2022 issued by the Medical Board consisting of Administrator (One Stop Centre), Associate Professor (GIPMER), Medical Officer (South East District) and the Tehsildar (Defence Colony) also confirms these facts.

13. This Court notices that such persons who are in a vegetative state are unable to take decisions for themselves, however, there is no mechanism provided in law under the RPWD Act, 2016 or the Mental Healthcare Act, 2017 for appointment of guardians to take care of such persons and their assets. This legal vacuum was considered in detail by this Court in the judgment dated 29th October, 2021 passed in W.P. (C) 1271/2020 titled S.D. vs. GNCTD & Ors. where this Court had exercised parens patriae jurisdiction while constituting a guardianship committee. The relevant part of the said judgment is as under:

“215. In any event, since the power under Section 14 of RPWD-2016 can be exercised by a Designated Authority, such a Designated Authority would fall within the overall superintendence of this Court exercising writ jurisdiction. In the absence of a Designated Authority having been notified under Section 14, this Court is also vested with the power to exercise jurisdiction under the proviso to Section 14(1), as there is a clear legal vacuum that has been created.

216. While exercising parens patriae jurisdiction, Courts used to apply the principle of “best interest of the individual”. However, with the introduction of the UNCRPD, “best interest” of the individual has to be in the light of the “wills and preferences” of the individual. The same could be determined by means of advance directives and in the absence of advance directives, facts and circumstances which point towards the wishes/intent of the concerned person. Thus, the “wills and preferences” of the mentally ill person have to be considered by the Court in deciding the manner in which care is to be given.

217. As noted in the concerns raised during the Parliamentary debates concerning the MHA-2017 and also from the lack of designated authorities explained above, there are gaps unaddressed by the legislations. The social fabric of family structures in India ought to be considered. In the same vein, the Court notes that the MHA-1987 had laid down certain standards and factors to be considered while determining the “best interest” of the mentally ill person. However, under RPWD-2016 and the MHA-2017, no guidance exists as to what would constitute the “wills and preferences” of the person. Under Section 14 of RPWD-2016, limited guardianship is for a specific period, a specific decision and a specific situation, in accordance with the will of the PwD. Even in the proviso to Section 14(1), the factors to be considered for providing total support are conspicuously absent. The MHA-2017 has no provision in respect of management of financial affairs, appointment of guardians or the manner in which the moveable/immovable property of the mentally ill person is to be taken care of. Thus there is a clear statutory vacuum.

218. On the issue of Maintainability therefore the following factors are noted:

(i) The RPWD-2016, the MHA-2017 or the RPWD (Delhi) Rules-2018 do not create any embargo on the exercise of parens patriae jurisdiction.

(ii) Providing ‘total support’ is contemplated under Section 14 of the RPWD-2016.

(iii) However, the power under Section 14 of RPWD-2016 is to be exercised by the District Court or the Designated Authority. Currently, under the RPWD (Delhi) Rules-2018, no Designated Authority has been appointed under Section 14.

(iv) Under the proviso to Section 14(1) of RPWD, 2016, there is no guidance as to the factors to be considered for providing total support.

(v) The various institutions and establishments contemplated under RPWD-2016 do not appear to be fully operational.

(vi) There is a clear legal vacuum in respect of providing total support to a person with disability who requires such support. No precedent has been cited either under the RPWD-2016 or MHA-2017 in this regard.

(vii) There are several gaps and concerns in the two legislations, i.e., RPWD-2016 and MHA-2017. All the required institutions under these statutes are not fully set up and functional.

(viii) In the present case, the condition of Mr. DMP is such that the Court has to take a comprehensive view under both legislations on two aspects:

(a) In respect of his medical care and treatment; and

(b) For management of his financial affairs, both movable and immovable assets which are valued at more than Rs. 3000 crores.

(ix) Above all, this Court is exercising jurisdiction under Article 226/227 of the Constitution of India, which is a jurisdiction conferred by the Constitution of India and in various judgments of the ld. Supreme Court, the parents patriae jurisdiction is clearly vested in Constitutional Courts. The present case falls in the category of exceptional circumstances, as held in Shafin Jahan (supra).

219. In any event, this Court is of the opinion that the solemn nature of the said jurisdiction having been repeatedly recognised by the Supreme Court, the question as to which Court has to exercise it and in what manner is one of mere procedure. So long as the “wills and preferences” of the mentally ill person and the other factors set out in the rules are borne in mind by the Court exercising parens patriae jurisdiction, it cannot be held that the High Court exercising power under Article 226 is denuded of power in view of the provisions of the RPWD-2016 Act or the Rules thereunder.

220. Thus, both, while exercising jurisdiction under Article 226 and even in terms of the proviso to Section 14(1) of the RPWD-2016 and under the MHA-2017, this Court has the power to entertain the present petition seeking appointment of a guardian. (ii) Who can be the guardian/nominated representative (Legal Position)

221. As discussed earlier, under Section 14(4) of the MHA-2017, the nominated representative can be any person who may have been chosen by an advance directive. In the absence of an advance directive, the nominated representative can be a relative. It is only if a relative is not available or is not willing to be the nominated representative, that in the order of preference, a care-giver or thereafter a suitable person can be appointed. A relative as defined under the MHA-2017, as extracted above, as a person related to the person with mental illness by blood, marriage or adoption. On the other hand, the RPWD-2016 does not define who can be a guardian. While some institutional mechanisms are contemplated under the RPWD-2016, the existence and the viability of such institutions has not been addressed before this Court during the course of submissions by either party. Under the RPWD (Delhi) Rules- 2018, the preference of merit for appointment as a limited guardian is contained in Rule 7(6). The preference therein is to blood relatives, adult children, siblings, spouse, and it is only thereafter that care givers or other personalities can be considered. There, the common principle seems to be preference to relatives over caregivers or other unrelated people.

222. In the opinion of this Court, the nominated representative or total support arrangement or guardian need not always be an individual. Guardianship could be exercised by even a guardianship committee, depending upon the facts, as long as such a committee would be an appropriate measure for enabling the person to exercise his legal capacity, as per his will and preferences. If the mentally ill person requires complex medical decisions to be taken, has an expanse of moveable/immovable assets, and requires management of complex financial affairs, and the Court is of the opinion that this entire function cannot be performed by one individual, a committee can be appointed.”

14. Subsequent to the decision in S.D. v. GNCTD (Supra) the Bombay High Court in W.P. (C) 1266/2021 titled Lubina Mohamed Agarwal & Ors. v. Union of India & Ors. decided on 13th December, 2021 has also considered the same issue and has observed as under:

“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, and more recently in Shafin Jahan v Asokan KM & Ors. 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, 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. 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 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 chose 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 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, [LQ/SC/2011/364] 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 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. 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.

18. By a previous order dated 12th August 2021, Kamar was to be examined by specialist at the JJ Group of Hospitals. That has been done. We have the reports before us today. She was examined on 18th August 2021. She was found to be conscious but minimally cooperative and communicative. She was bed-ridden. Her attention was minimal. She had a forward attention of span of two and a nil backward attention span. She was hard of hearing and could follow only very simple commands, not complex instructions. Her speech was incoherent and reduced in tone and output. Her concepts and judgments were impaired, as was her memory. The conclusion was that she suffers from advanced dementia, needs assistance in her day-to-day activities and will require further investigation and monitoring. The reports states that the Indian Disability Assessment Scale Score was 20, suggestive of profound disability.

19. In these circumstances, we are inclined to grant the relief Mr Khambata seeks, but subject to certain safeguards. To begin with, we make it clear that we are not disposing of this Petition. It is also not our intention that the directions that follow are either rigid or constitute a precedent of any kind. Given the state of the law, which we have briefly set out above, each case will need to be addressed on its own merits. Indeed, we would suggest that in matters like these, no two cases will be exactly alike ever. Each case will require a differently calibrated response from the Court. We also intend to monitor Kumar’s condition and will list the matter periodically for updates. The present order may then continued or modified as Required.”

15. In the present case, the initial will and preference of the Ms. K.A. was to appoint her son to deal with her assets. She did this by executing a General power of Attorney in his favour. But unfortunately the son has pre-deceased her. Thus, as on today, considering her physical and mental state, it is clear she is even unable to express her will or her preference. The Court in these circumstances has to step in under the parens patriae jurisdiction. Her immediate family consists of her daughter-in-law who is also a senior citizen and her three grandchildren. Ld. Counsel for the Petitioner has assured the Court, under instructions, that she does not have any siblings and thus there are no other legal heirs. In view of the facts of this case as also the three status reports placed on record, this Court is convinced that Ms. K.A. is unable to take decisions in her interest and is in a seriously declined mental and physical state. Conduct of any further medical tests on her would in the opinion of this Court be futile, as the facts which have emerged from the three status reports are consistent with each other as to the physical and mental condition of Ms. K.A. Thus, no further medical tests or any other test are being directed as no such tests would be required in the present case.

16. Insofar as the persons who ought to be appointed as her guardians are concerned, Ms. K.A. does not appear to have any other legal heir or children except the ones who are arrayed as Petitioners and Respondent No.2. Further, the affidavit of no objection of the Respondent No.2 appears convincing. The said affidavit of no objection reads as under:

“I, Mr. U.A., son of Late Mr. J.A., resident of 4, Colonial Road, Scarsdale, New York 10583, United States of America, aged about 38 years, hereby solemnly affirm and state as under:

1. The captioned writ petition has been filed by the Petitioners, i.e., my mother Mrs. N.A. and my sisters Ms.S.J. and Ms. M.A., seeking guardianship of my grandmother Mrs. K.A., on account of her old age and deteriorating health conditions.

2. I have no objections to the Petitioners being granted the aforesaid guardianship as prayed for in the petition or any other relief/directions in favour of the petitioners.”

The grandson has thus given his no-objection to the Petitioners being appointed as guardians.

17. In these circumstances, the Court exercising parens patriae jurisdiction directs as under:

(i) A Guardianship Committee consisting of the Petitioners, is appointed as the caregiver and the guardian for Ms. K.A. It shall act as nominated representative of Ms. K.A. under the Mental Health Act, 2017 and for providing support to Ms. K.A. under the RPWDA, Act, 2016.

(ii) The Guardianship Committee shall take unanimous decisions in respect of the affairs of Ms. K.A. including her medical treatment, healthcare, daily living, financial affairs, etc.

(iii) The Guardianship Committee shall be free to deal with all the movable and immovable assets of Ms. K.A. Specifically, the guardianship committee is permitted to deal with the following assets and the bank account of Ms. K.A.:

(iv) If any asset of Mr. K.A. is being disposed of, the consent of Respondent No. 2 shall be obtained in advance in respect of the same.

18. The aforesaid directions have been passed on the strength of the Petitioners’ submission and averments before this Court that there is no other legal heirs of Ms. K.A except the ones who are arrayed as Petitioners and Respondent No.2. The Petitioners shall be bound by the said submission.

19. With these observations, the present petition, along with all pending applications, is disposed of.

20. No further orders are called for.