1. Leave to amend to include prayer clause d(1) and paragraph 5A. Amendment to be carried out by Monday, without need of re-verification.

2. The Petitioner seeks to be appointed the guardian at law of the person and property of her widowed brother Shirishkumar Shantilal Parekh. The Petitioner is Shirishkumar's sister. Their other two siblings have consented. The reason for this is that Shirishkumar is suffering from severe vascular dementia. He has problems with reasoning, judgment, memory. He is being cared for by the Petitioner who has come to India from the USA for this purposes. There are documents annexed to the Petition to show his condition. Shirishkumar's spouse died before him. They had no children.

3. The relevant documents annexed to the Petition establish the averments made in the Petition.

4. We had made a similar order on 17th March 2022: (Reported in AIR Online 2022 Bom 2445) in Karunakar Narayan Shetty v. State of Maharashtra (Writ Petition No. 756 of 2022). In that we referenced two of our previous decisions. To set out the frame of the legal position, we reproduce paragraphs 5 to 7 of that order.

"5. We have recently held that our approach in such cases is the same as our approach when we are dealing with person and property of a minor. See: Lubina Mohamed Agarwal and Anr. v. Union of India and Ors. Writ Petition No. 1266 of 2021: (Reported in AIR Online 2021 Bom 6297).; and Nirupama Jitendra Mehta v. State of Maharashtra, Writ Petition No. 3313 of 2021, order dated 17th December, 2021: (Reported in AIR Online 2021 Bom 7141).

6. We reproduce paragraphs 11 to 17 of our order in Lubina Mohamed Agarwal:

"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 parents patriae, one that was discussed by the Supreme Court in Aruna Ramchandra Shanbaug v. Union of India and Ors. (2011) 4 SCC 454 [LQ/SC/2011/364] : (AIR 2011 SC 1290 [LQ/SC/2011/138] )., and more recently in Shafin Jahan v. Asokan KM and Ors., 2018 16 SCC 368 [LQ/SC/2018/464] : (AIR 2018 SC 1933 [LQ/SC/2018/464] ). The Supreme Court has said that the parents 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 and 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 Writ Petition No. 637 of 2021: (Reported in AIR Online 2021 Bom 7140). 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 v. 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 v. Union of India decided on 13.10.2017 : (Reported in AIR Online 2017 Bom 31), 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 : (Reported in AIR Online 2020 Bom 3285), 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 v. Union of India, Writ Petition (L) No. 11394 of 2021 decided on 17.06.2021: (Reported in AIR Online 2021 Bom 7153), 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 a 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 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 parents patriae whereafter it was held that in a case like this it is the court alone as the parents 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 v. Union of India (2011) 4 SCC 454 [LQ/SC/2011/364] : (AIR 2011 SC 1290 [LQ/SC/2011/138] ), 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 justitiae 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 justitiae 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. Interim Application No. 677 of 2020 in Suit No. 42 of 2021. 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 un-addressed. 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. We see no reason to depart from this jurisprudential position in this case."

5. In the present case, we appoint the Petitioner as guardian at law of Shirishkumar Shantilal Parekh and of his property and assets. This is subject to the following terms and conditions.

(a) MOVABLES

(i) The Petitioner will be entitled to add her name to any of the bank accounts, investments, demat accounts, depository accounts and holdings of Shirishkumar Shantilal Parekh including under this order or by adding her name as the second holder.

(ii) She is also entitled to operate his bank accounts.

(iii) She will be entitled to liquidate movable assets but only for the care, maintenance and upkeep of her brother. All proceeds are to be credited only to his bank accounts.

(iv) She will not be permitted to make any reimbursements to herself or any transfers.

(v) She may make all payments required for medical and support staff and for all other purposes for Shirishkumar Shantilal Parekh's medical needs, upkeep and maintenance.

(vi) She is also permitted to correspond with all tax authorities and banks and file and income tax returns on her brother's behalf.

(vii) She may take the necessary steps to link his PAN and Aadhar Cards to avoid any disruption in future.

(b) IMMOVABLE PROPERTY

(i) She may also enter into transactions for disposal of his immovable property but may not conclude those transactions without prior leave of the Court obtained in an Interim Application to be made with at least one week's prior notice to the Advocates for the Respondents.

(ii) The proposed purchaser of such immovable property will be added as a Respondent to that Interim Application.

(iii) A draft of the proposed transaction document will be annexed to the Interim Application and the consideration will be clearly stated.

(iv) This will also apply to any transactions proposed for Leave and License of any premises.

(v) All receipts from such transactions will go to an only to the bank accounts of the Petitioner's brother Shirishkumar Shantilal Parekh.

6. While we dispose of the Petition with this order, we grant the petitioner liberty to apply including before the vacation Judge should the need arise.

7. The Petition is disposed of in these terms. No costs.