# Pooja Sharma v. State of U.P. & Ors

- **Citation:** (2023) 10 ILRA 1177
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-06
- **Case number:** Writ-C No. 26406 of 2023
- **Bench:** Mahesh Chandra Tripathi, Prashant Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pooja-sharma-v-state-of-u-p-ors-49312
- **Pages:** 16

## Headnote

A. Constitution of India - Article 226 -
Writ - Scope - Rights of Persons with
Disabilities Act, 2016 - Mental Healthcare
Act, 2017 - Entitlement of the patient,
lying in coma, to get treatment - Wife
sought mandamus to sell the property of
disable person - Permissibility - Doctrine
of 'Parens Patriae' - Applicability - In the
absence of efficient provision, how far
High Court can exercise writ power -
Held,
both
the
Acts
provide
for
1178 INDIAN LAW REPORTS ALLAHABAD SERIES
appointment
of
Support/Guardian
for
People with Particular Disabilities/Mental
Illness, but do not address the situation of
a person, who is in comatose state - In
the larger interest of patient lying in
comatose state, who is in urgent need of
treatment, support and for that they need
funds to take care of this extraordinary
situation, which cannot be ignored or
compromised,
hence,
the
Court
is
consciously bound to invoke power under
Article 226 of the Constitution of India, to
deal with such situation - After discussing
several statutes of the United Nation as
well of India, the High Court issued
guidelines enabling the wife to sell the
husband's property. (Para 32, 33 and 55)

B. Jurisprudence - Doctrine of 'Parens
Patriae'
-
Meaning
and
Scope
-
Applicability
under
Judicial
review
-
Originated in Britain as early as in the
13th Century, the doctrine of 'Parens
Patriae' means that the king is the father
of the country and he was under the
obligation to look after the interest of
those who are unable to look after
themselves - Even in India, the concept of
doctrine of 'Parens Patriae' was also
recognized
-
The
Supreme
Court
recognises
that
Constitutional
Courts,
including High Courts, can also act under
their parens patriae jurisdiction to 'meet
the ends of justice'. Mental incompetency
is listed as an exceptional circumstance
which would justify the exercise of this
jurisdiction - If the Court is satisfied that
the person concerned is in a vegetative
state,
then
surely
'parens
patriae'
jurisdiction can be exercised. (Para 10 and
37)
Writ petition allowed. (E-1)

List of Cases cited:

## Text

_Characters 0–39,958 of 47,769. This is a partial read: ask again with offset=39958 for what follows._

10 All. Pooja Sharma Vs. State of U.P. & Ors.
1177
registration of document is free to
challenge its validity before the Civil
Court.

33. Taking any view of the matter,
therefore, we are of the considered opinion
that, the High Court has justly dismissed
the writ petition filed by the appellant with
liberty to the appellant to pursue statutory
remedy resorted to by him under the Act of
1960 or by resorting to any other remedy
as may be advised and permissible in law.
All questions to be considered in those
proceedings will have to be decided on its
own merits.

34. Accordingly, we dismiss this
appeal in the above terms with no order as
to costs."

20. In the instant matter admittedly
there is dispute about the share which is
pending before revenue Court under
Section 116 of U.P. Revenue Code, 2006
at the instance of the petitioner along
with others, as such, it cannot be said
that controversy is purely legal one and
it does not involve disputed question of
fact.

21. The validity of lease deed
executed / registered on 19.10.2022 in
view of the provisions contained under
Section 94 & 95 of U.P. Revenue Code,
2006 as well as the Uttar Pradesh Solar
Energy
Policy,
2022
cannot
be
examined
in
exercise
of
writ
jurisdiction
under
Article
226
of
Constitution
of
India
rather
in
appropriate forum in view of the ratio
of law laid down by Hon'ble Apex
Court in M/s Godrej Sara Lee Ltd
(supra) as well as Satya Pal Anand
(supra). The question as mentioned in
paragraph no.17 of the judgment is
answered accordingly.

22 . Considering the entire facts and
circumstances of the case, no interference
is required in the matter. Writ petition is
dismissed with liberty to the petitioner to
pursue the remedy which has already been
availed by way of suit for partition as well
as any other remedy permissible under law
in respect to registered lease deed in
question.
----------
(2023) 10 ILRA 1177
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.10.2023

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE PRASHANT KUMAR, J.

Writ-C No. 26406 of 2023

Pooja Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vishal Pandey, Sri Ashvanee Kumar
Srivastav, Sri Anupam Kulshreshtha (A.C.)

Counsel for the Respondents:
C.S.C., Sri Paras Nath Rai (Sr. Standing
Counsel), Sri S.P. Singh (A.S.G.I.)

A. Constitution of India - Article 226 -
Writ - Scope - Rights of Persons with
Disabilities Act, 2016 - Mental Healthcare
Act, 2017 - Entitlement of the patient,
lying in coma, to get treatment - Wife
sought mandamus to sell the property of
disable person - Permissibility - Doctrine
of 'Parens Patriae' - Applicability - In the
absence of efficient provision, how far
High Court can exercise writ power -
Held,
both
the
Acts
provide
for
1178 INDIAN LAW REPORTS ALLAHABAD SERIES
appointment
of
Support/Guardian
for
People with Particular Disabilities/Mental
Illness, but do not address the situation of
a person, who is in comatose state - In
the larger interest of patient lying in
comatose state, who is in urgent need of
treatment, support and for that they need
funds to take care of this extraordinary
situation, which cannot be ignored or
compromised,
hence,
the
Court
is
consciously bound to invoke power under
Article 226 of the Constitution of India, to
deal with such situation - After discussing
several statutes of the United Nation as
well of India, the High Court issued
guidelines enabling the wife to sell the
husband's property. (Para 32, 33 and 55)

B. Jurisprudence - Doctrine of 'Parens
Patriae'
-
Meaning
and
Scope
-
Applicability
under
Judicial
review
-
Originated in Britain as early as in the
13th Century, the doctrine of 'Parens
Patriae' means that the king is the father
of the country and he was under the
obligation to look after the interest of
those who are unable to look after
themselves - Even in India, the concept of
doctrine of 'Parens Patriae' was also
recognized
-
The
Supreme
Court
recognises
that
Constitutional
Courts,
including High Courts, can also act under
their parens patriae jurisdiction to 'meet
the ends of justice'. Mental incompetency
is listed as an exceptional circumstance
which would justify the exercise of this
jurisdiction - If the Court is satisfied that
the person concerned is in a vegetative
state,
then
surely
'parens
patriae'
jurisdiction can be exercised. (Para 10 and
37)
Writ petition allowed. (E-1)

List of Cases cited:
1. E (Mrs.) Vs Eve; (1986) 2 SCR 388 Canada

2. Aruna Ramchandra Shanbaug Vs U.O.I. &
ors; 2011(4) SCC 454

3. Shafin Jahan Vs Ashokan K.M. & ors.; (2018)
16 SCC 368

4. Writ C No. 5783 of 2020; Smt. Shalini
Agarwal & ors. Vs St. of U.P. & ors. decided on
14th October, 2020

5. Uma Mittal Vs U.O.I.; 2020 SCC OnLine All
777

6. Shobha Gopalakrishnan Vs St. of Kerala; 2019
SCC OnLine Kerala 739

7. Writ Petition No. 28435 of 2015; Sairabanu
Mohammed Rafi Vs St. of T. N. decided on
6.1.2016

8. Philomena Leo Lobo Vs U.O.I.; (2017) SCC
Online Bom 8836

9. W.P. No. 2476 of 2017; Dr. Madhu
Vijaykumar Gupta Vs The St. of Maharashtra &
ors. decided on 30,04.2019

10. W.P. (L) No.11394 of 2021; Smt. Reshma
Salam
Kondkari
Vs
U.O.I.
decided
on
17.06.2021

11. Rita Arvind Kakodkar Vs St. of Mah.; 2022
SCC OnLine Bom 10243

12. W.P. no. 637 of 2021; Vijay Ramachandra
Salgaonkar Vs State of Mah. decided on
17.7.2021

13. Rajni Hariom Sharma Vs U.O.I.; 2020 SCC
OnLine Bom 880
10 All. Pooja Sharma Vs. State of U.P. & Ors.
1179
14. W.P.(C) No. 11003 of 2019; Vandana Tyagi
& anr. Vs Government of National Capital
Territory of Delhi & ors. decided on 7.1.2020

15. Satula Devi Vs Govt. of NCT of Delhi; 2021
SCC OnLine Del 4856

16. W.P. No. 11757 of 2018; Sikha Arjit
Bhattacharya Vs Union of India decided on
27.10.2020

(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.)

1. Heard Shri Anupam Kulshreshtha,
learned Amicus Curaie assisted by Shri
Ashvanee
Kumar
Srivastav,
learned
counsel for the petitioner; Shri S.P. Singh,
learned Additional Solicitor General of
India assisted by Shri Paras Nath Rai,
learned Senior Standing Counsel for
Union of India, Shri Ambrish Shukla,
learned
Additional
Chief
Standing
Counsel and Sri Fuzail Ahmad Ansari,
learned Standing Counsel for the State
respondents.

2. By means of present writ
petition, the petitioner has prayed for
following reliefs:-

"I. Issue a writ, order or
direction in the nature of mandamus
directing the respondent authority to
permit the petitioner to sell the property
of her husband for the treatment of her
husband namely Vikas Sharma, who is
suffering from head injury.

II. Issue a writ, order or
direction in the nature of mandamus
directing the respondent no.3 to provide
the Government help for the treatment of
the husband of the petitioner.

III. Any other writ, order or
direction which this Hon'ble Court may
deem fit and proper in the aforesaid facts
and circumstances of the case.

IV. To award the cost of the
petition in favour of the petitioner."

3. The husband of the petitioner
has purchased a piece of land through a
registered sale deed dated 5.9.2011.
After purchasing the land, his name has
also been mutated in the revenue
records. Unfortunately, the petitioner's
husband, who had bought the land, met
with an accident and sustained serious
head injury. He is lying in a camatose
state since then. The petitioner, who
comes from a very average family, has
been subjected to lot of medical
expenses, which she is unable to pay.
She has already incurred huge expenses
in
connection
with
the
treatment.
Having
exhausted
all
financial
resources, she is in despair, isolation
and abandonment besides undergoing
agony, stress on account of her husband
lying in "permanent vegetative state".

4. The petitioner (Pooja Sharma),
being the wife of Vikas Sharma, has
come forward with the aforesaid prayer.
She has approached this Court by
means
of
instant
petition
seeking
permission
to
sell
the
property
purchased by her husband from his own
income, to meet out the expenses of
treatment of her husband. The petitioner
submits that in India there is no
legislation,
which
provides
for
appointment of Guardian for a person in
camatose state, unlike legislations for
appointment of 'Guardian for minors'
and persons with other disabilities like
mental retardation etc.
1180 INDIAN LAW REPORTS ALLAHABAD SERIES

5. When the matter came up before
this Court on 20.9.2023, this Court was
pleased to pass the following orders:-

"1.
Heard
Shri
Anupam
Kulshreshtha,
learned
Amicus
Curaie
assisted by Shri Ashvanee Kumar Srivastav
appearing for the petitioner; Shri S.P.
Singh, learned Addl. Solicitor General of
India assisted by Shri Paras Nath Rai,
learned counsel for Union of India and Shri
Ambrish Shukla, learned Addl. Chief
Standing Counsel along with Shri F.A.
Ansari, learned Standing Counsel for
the State respondents.

2. Present writ petition has
been preferred for a direction to
respondents to permit the petitioner to
sell the property of her husband namely
Vikas Sharma, situated at Gautam Budh
Nagar, for his treatment, who is in
critical medical condition due to head
injury. It is further prayed for a
direction to respondents to provide the
government help for treatment of her
husband.

3. It appears that the husband
of the petitioner had purchased the land
in question through registered sale deed
and his name has also been mutated in
the revenue record. Unfortunately, the
husband of the petitioner met with an
accident and sustained serious head
injuries and, therefore, he is lying in
Comatose
State
since
then.
The
petitioner comes from very humble
family and has been subjected to lot of
medical expenses, which she is unable
to pay at present. She has already
incurred huge expenses in connection
with
the
treatment
and
having
exhausted all her financial resources,
therefore, at present she is in very
pathetic condition.

4. This Court vide order dated
28.8.2023 has allowed learned counsel for
the petitioner to implead Union of India
through its Social Welfare Department,
New Delhi and mother-in-law of the
petitioner namely Smt. Rajeshwari Sharma
w/o Late Mahesh Kumar Sharma as
respondent nos.4 and 5 in the present writ
petition. It is informed that Smt. Rajeshwari
Sharma is not keeping good health and as
such previously memo of appearance on
her behalf could not be filed. However, a
statement was made that she has no
objection, if the property in question is sold
for better treatment of her son.

5. Before proceeding further in
the matter, we find that present mental
status of petitioner's husband may be
verified by the competent doctors. As it is
informed that at present the petitioner and
her ailing husband are residing at New
Delhi, we request the Director, All India
Institute of Medical Sciences, New Delhi
(AIIMS) to constitute a Medical Board
consisting of specialist doctors dealing with
such kind of ailment for examining the
mental condition of petitioner's husband
namely Vikas Sharma. Accordingly, the
petitioner is directed to appear along with
her ailing husband before the Director,
AIIMS on 25.9.2023 at 10.30 a.m. The
medical report in this regard be submitted
to this Court through learned Addl.
Solicitor General of India on the next date.

6. Put up this matter as fresh on
27.9.2023 at 2.00 p.m.

7. Let a copy of this order be
given to learned counsel for parties within
24 hours for necessary compliance. We
10 All. Pooja Sharma Vs. State of U.P. & Ors.
1181
also
request
learned
Addl.
Solicitor
General of India to ensure compliance of
this order."

6. In response of the aforesaid order
dated
20.09.2023,
Sri
S.P.
Singh,
Additional Solicitor General of India has
produced a report before this Court dated
25.09.2023, which is taken on record. The
report is as follows:

ALL INDIA INSTITUTE OF
MEDICAL SCIENCES
Ansari Nagar, New Delhi-110029
No.F.-46-23/2023/MB-Estt.(CNC)
Dated:25.09.2023

Subject: Report of the Medical
Board to examine the Mental condition of
petitioner's husband namely, Sh. Vikash
Sharma in writ petition (Civil) No.26406 of
2013 (in the matte of Pooja Sharma vs.
State of U.P. and 2 others)-reg.

*******************************
******************

A medical board was constituted
by the Medical Superintendent, AIIMS on
aforementioned subject, consisting of the
following members:

1. Dr. Shashwat Mishra

Professor,
Deptt.
Of
Neurosurgery -

Chairperson

2. Dr. Divya M.R.

Asstt.
Professor,
Deptt.
Of
Neurology -

Member

3. Dr. Tilotma Jamwal

Department
of
Hospital
Administration -
Member Secy.

The first meeting of the Medical
board
was
held
on
Monday
25th
September, 2023 at 12:00 P.M. in the
Consultation Room no.13, M.S. Office
Wing, Ground floor, AIIMS, New Delhi.
All members were present.

Mr. Vikas Sharma s/o Mahesh
Kumar was examined by the medical board
constituted
as
per
direction
of
the
honourable court. As per the medical
records and history provided by patient's
wife, patient suffered from severe head
injury on dated 4/3/2020 following which
he was admitted and treated at Sri
Venkateshwar Hospital. Patient underwent
bilateral fronto-temporal parietal (FTP)
decompressive
craniectomy
(DC)
on
6/3/2020. Patient was discharged from
hospital on 4/4/2020 on trachesostomy
tube, nasogastric (NG) tube and was
making some neurological recovery at the
time of discharge.

Patient's wife stated that the
patient became ambulatory with the support
around 15 days from discharge. However,
patient
developed
bilateral
flap
site
swelling and was discovered to have post
traumatic hydrocephalus on follow up CT
imagine done on 26/6/2020. In response,
patient
underwent
right
ventriculo
peritoneal shunt on 1/7/2020. However,
following this procedure patient was
discharged in semi-comatose status on
tacheostomy and NG tube feeding. Shunt
revision was done several times in different
hospitals.

At present, patient remains in
unresponsive
wakefulness
(persistent
vegetative state, unable to follow simple
commands or communicate meaningfully),
bed ridden and completely dependent on
caregivers for basic needs. He is being fed
1182 INDIAN LAW REPORTS ALLAHABAD SERIES
via NG tuve, voiding via urinary catheter
and is tracheostomised; requires frequent
suctioning for airway clearance. Looking at
the recent MRI Brain scans (dated
18/7/2023, showing extensive cerebral
atrophy) and the poor clinical condition of
the patient, the board is of the opinion that
the
patient
will
require
prolonged
supportive and nursing care and is unlikely
to make significant neurological recovery
in near future and may require frequent
hospital visits for health needs.

Sd./-

Sd./-

Sd./-

(Dr. Shashwat Mishra)
(Dr.
Divya M.R.) (Dr. Tilotma Jamwal)

Chairperson

Member

Member Secy.

7. A perusal of the report of the
Medical Board shows that the petitioner's
husband is in coma and in vegetative state
and is not in a situation to take a decision
or to execute any conveyance. He needs a
guardian to take care of him, his property
and his affairs. Neither under the Mental
Health Act nor under the Guardian and
Wards Act, 1890, there is any provision for
appointment of a guardian in such a
situation.

8. The issue before this Court is as to
who should be the Guardian of a person
who can administer or handle the property
of such a person who is in comatose state,
as he does not fall under the ambit of
mental illness nor will come under the
ambit of person with disabilities.

History of Legislation Dealing with
People with Disabilities

9. Before dealing with the current
legislation, which allows appointment of
Guardian for those who cannot take a
decision or to take care of themselves, we
need to look into the history of various
legislation which caters to such a situation.

10. The concept of taking care of
patient
in
comatose
state
is
being
recognized several hundreds of years. The
concept of 'PARENS PATRIAE' was first
found in United Kingdom. The doctrine of
'Parens Patriae' was originated in Britain
as early as in the 13th Century, it means
that the king is the father of the country and
he was under the obligation to look after
the interest of those who are unable to look
after themselves. Even in India, the concept
of doctrine of 'Parens Patriae' was also
recognized in the same way where the king
was supposed to be the protector of the
citizens as parent. 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 concept of taking care of
patient in comatose state is being
recognized several hundreds of years.

11. During the British rule in
India, the first legislation introduced in
the sphere of mental law was for the
purpose of transporting the British
patients back to England and this Act
came to be known as the Lunatic
Removal Act, 1851.

12. From 1858 the British Crown
brought upon various legislations such
as the Lunacy (Supreme Courts) Act,
1858, Lunacy (District Court) Act,
1858, Indian Lunatic Asylum Act, 1858
(with amendments passed in 1886 and
1889) and the Military Lunatic Act,
1877 for the care and interest of the
person with intellectual disabilities, but
these acts failed to generate a healthy
10 All. Pooja Sharma Vs. State of U.P. & Ors.
1183
and humane outcome as the provisions
were restrictive rather than reformative to
mental patients.

13. These problems culminated into
the introduction of a bill in 1911 which led
to enactment of the Indian Lunacy Act,
1912. This was the first legislation that
governed mental health in India as it
regulated the management of asylums, but
the main criticism of this act of 1912 was
the provisions reeked of the protection of
the public from those who were considered
dangerous to the society; the act did not
promote the interest or rights of the
mentally ill persons. This Act also had lot
of lacunas so the Indian Psychiatric Society
suggested the amendment to the Act.

14. The Parliament in U.K. had taken
away the concept of 'PARENS PATRIAE'
as the entire concept was enacted in an Act
called the Mental Health Act, 1959. In fact,
a Constitution Bench of Canada in E
(Mrs.) v. Eve1 has cautioned that this
jurisdiction cannot be taken away unless
and until it is removed by a specific
legislation. The Preamble of the Mental
Health Act, 1959 of U.K. is as follows:-

"An Act to repeal the Lunacy and
Mental Treatment Acts, 1890 to 1930, and
the Mental Deficiency Acts, 1913 to 1938,
and to make fresh provision with respect to
the treatment and care of mentally
disordered persons and with respect to
their property and affairs; and for
purposes connected with the matters
aforesaid."

15. The Preamble of the Act made it
clear that this Act was for treatment of such
patients and also to handle the property and
affairs of the patient. Part IV of the Act
dealt
with
compulsory
admission
to
hospital and guardianship to such patient.
Section 33 of the Mental Health Act, 1959
of U.K. lays down the procedure for
making the application of guardianship.
Section 34 lays down the procedure to deal
with such application. Section 35 lays
down regulation on the guardians and
Section 42 lays down transfer of guardian
in case of death or in capacity of guardian.
Part VIII of this Act is for the management
of property and affairs of the patients.
Section 103 granted power to the Judge to
administer the patients' properties and
affairs. Section 105 granted Judge the
power to appoint a receiver, Section 107
deals with preservation of interest of
patients' properties.

16. Thereafter, the Indian Lunancy
Act was replaced by the Mental Health Act,
1987, it took approximately three decades
for this Act to be formulated and it finally
received the President's assent on May,
1987 but was implemented in 1993. The
provisions of Mental Heath Act, 1987
carried out significant and commendable
changes in the object as well as in the
definition of mental illness .

United Nation Convention

17. To address this issue, the
United Nation held a Convention on the
Rights
of
People
with
Disabilities
(hereinafter, for the sake of brevity, to be
referred as 'UNCRPD'). This Convention
was signed by 164 member countries.
Article 1 of this convention covered
physical and intellectual disabilities within
the broad definition of disabilities. It also
gave
primacy
to
the
Persons
with
Disabilities (hereinafter, for the sake of
brevity, to be referred as 'PwD'), to
exercise freedom of choice, and dignity.
The opportunity for decision making was to
1184 INDIAN LAW REPORTS ALLAHABAD SERIES
be vested with the PwD. It intended to
promote
their
full
and
effective
participation in society on an equal basis.
The UNCRPD imposes various obligations
on the member countries to ensure
protection of the disabled persons and help
them
in
exercising
their
complete
freedoms. The UNCRPD recognizes in its
Preamble as under:

"24. Convinced that the family is
the natural and fundamental group unit of
society and is entitled to protection by
society and the State, and that persons with
disabilities and their family members
should receive the necessary protection
and assistance to enable families to
contribute towards the full and equal
enjoyment of the rights of persons with
disabilities,"

18. India was also signatory of this
United Nation Convention on the Right
of Disability. UNCRPD, which was a
convention in respect of persons with
all
kind
of
disabilities
and
was
subsequently notified the same on
1.10.2007,
this
resulted
in
the
enactment of two statutes in India,
namely:

a) The Rights of Persons with
Disabilities Act, 2016; and

b) The Mental Healthcare Act,
2017.

LEGISLATION IN INDIA
FOR
APPOINTMENT
OF
GUARDIANS
FOR
MINORS,
DISABLED
AND
MENTALLY
CHALLENGED,
AND
ITS
APPLICABILITY
FOR
THE
PEOPLE IN COMATOSE STATE:-

19. There are various Acts made
by the Legislation under which a
guardian could be appointed, which are as
follows:-

(i) The Guardian and Wards Act,
1890

(ii) The Hindu Minority and
Guardianship Act, 1956

(iii) The Mental Health Act, 1987
(Repealed)

(iv) Persons With Disabilities
(Equal Opportunities, protection of Rights
and Full Participation) Act, 1995. This Act
has been repealed by the Rights of Persons
with Disabilities Act, 2016.

(v) The National Trust Act for the
Welfare of Persons with Autism, Cerebral
Palsy, Mental Retardation and Multiple
Disabilities Act, 1999

(vi) The Mental Healthcare Act,
2017

(vii) The Rights of persons with
Disabilities Act, 2016

The Guardians and Wards Act, 1890

20. The Guardians and Wards Act,
1890 was enacted to consolidate various
laws relating to guardians and wards
applicable to all the classes, creeds and
races, who were subjects to British India.
As per this Act, the Court can appoint a
Guardian to take care of the properties of
the minor. This Act was only to provide
guardians for the minors and was not
applicable for appointing Guardian to a
person lying in comatose state.

The Hindu Minority and Guardianship
Act, 1956
10 All. Pooja Sharma Vs. State of U.P. & Ors.
1185

21.

The
Hindu
Minority
and
Guardianship Act, 1956 was an Act that
regulated the guardianship of Hindu minors
and to manage their properties. It was a
supplement to the Guardians and Wards
Act, 1890. It also defined rights and duties
of natural guardian. In this Act, the welfare
of the child was paramount consideration.
This Act again was only confined to the
Hindu minors and have no applicability for
appointing a Guardian of person lying in
comatose state.

The Mental Health Act, 1987

22. The Parliament had enacted The
Mental Health Act, 1987. The need for
introduction of this Act was because The
Indian Lunacy Act, 1912 had become
outdated as there was a considerable
development in the medical science.
Mental illness was curable if diagnosed at
an early stage. The attitude of the society
towards such people was also changing.
Hence, it was necessary to bring in fresh
legislation for treatment of mentally ill
persons in accordance with the new
approach. Accordingly, The Mental Health
Act, 1987 was enacted and had come into
force with effect from 1.4.1993.

Though Chapter VI of The
Mental Health Act, 1987 dealt with judicial
imposition regarding alleged mentally ill
person possessing property, custody of
such person and the management of his
property. Section 52 lays down for
appointment of Manager for mentally ill
person for management of property.
Section 54 provides for appointment of
Manager for management of property of
mentally ill person. However, there is no
provision in the Act for appointment of
Guardianship for a person who is in
comatose state.

Persons
With
Disabilities
(Equal
Opportunities,
protection
of
Rights and Full Participation) Act, 1995

23. The Parliament enacted the
Persons
With
Disabilities
(Equal
Opportunities, protection of Rights and Full
Participation) Act, 1995. The object of the
Bill was to give effect to the Proclamation
on the Full Participation and Equality of the
People with Disabilities in the Asian and
Pacific Region. Subsequently, Persons
With Disabilities (Equal Opportunities,
protection of Rights and Full Participation)
Act, 1995. This Act has been repealed by
the Rights of Persons with Disabilities
Act, 2016.

The National Trust Act for the
Welfare
of
Persons
with
Autism,
Cerebral Palsy, Mental Retardation
and Multiple Disabilities Act, 1999

24. This Act was enacted to provide
for constitution of national body for the
welfare for autism, cerebral palsy, mental
retardation and multiple disabilities and
for the matters connected therewith or
incidental thereto. This Act was again
focussed for the welfare of the person
suffering
from
above
mentioned
disabilities. Section 14 of this Act deals
with appointment of guardian but it was
only
confined
to
the
diseases
or
disabilities
mentioned
in
the
Act.
Though, the Preamble of the Act states
that matters connected therewith or
incidental
thereto,
however,
the
provisions of that, do not cover people
lying in comatose state. Further the
benefit of this Act will only be applicable
to people who are having any two or more
disabilities,
to
fall
under
'multiple
disabilities', in order to come within the
purview of the Retardation and Multiple
1186 INDIAN LAW REPORTS ALLAHABAD SERIES
Disabilities Act, 1999 (National Trust Act,
1999).

The Mental Healthcare Act, 2017

25 . This Act was the outcome of The
United Nations Convention on the Rights
of Persons with Disabilities, which was
ratified by the Government of India in
October, 2007. The Convention made it
obligatory on the Government to align its
policies and laws with the Convention. The
Mental Health Act, 1987 could not protect
the rights of persons with mental illness
and promote their access to mental
healthcare in the country.

Since, The Mental Health Act,
1987 had its limitations. There was no
provision to protect the rights of persons
with mental illness, and did not promote
access to mental healthcare in the country.

26. To ensure healthcare, treatment
and rehabilitation of persons with mental
illness as well as to protect and promote the
rights of persons with mental illness during
the delivery of healthcare inter alia, the
Mental Health Bill was introduced in 2013.
Hence, The Mental Health Act, 1987 was
repealed and The Mental Healthcare Act,
2017 was enacted with effect from
29.5.2018.

In the Mental Healthcare Act,
2017, mental illness is defined in Section
2(s), which is as follows:-

"(s) "mental illness" means a
substantial disorder of thinking, mood,
perception, orientation or memory that
grossly
impairs
judgment,
behaviour,
capacity to recognise reality or ability to
meet the ordinary demands of life, mental
conditions associated with the abuse of
alcohol and drugs, but does not include
mental retardation which is a condition of
arrested or incomplete development of
mind of a person, specially characterised
by subnormality of intelligence;"

Section 14 permits the mentally
ill
person
to
appoint
a
nominated
representative.
However,
where
a
nominated representative is not appointed,
the persons who would be deemed to be the
nominated representative in the order of
precedence, is laid down under Section 14
(4) of the Mental Healthcare Act, 2017.
The duties of the nominated representative
has been laid down under Section 17 of
the Act.

THE RIGHTS OF PERSONS
WITH DISABILITIES ACT, 2016

27. After the United Nations
Convention on the Rights of Persons
with
Disabilities(UNCRPD),
India
being a signatory State, enacted the
Rights of Persons with Disabilities Act,
2016 (for the sake of brevity hereinafter
referred as 'RPWD Act, 2016).

Section 2(s) of the Rights of
Persons with Disabilities Act, 2016 lays
down that "person with disability"
means a person, who has a long term
physical,
mental,
intellectual
or
sensory
impairment
which,
in
interaction with hinders an effective
participation of patient in the society.
Section 14 lays down provision for
guardianship
for
a
person
with
disability who is unable to take
decisions and needs limited support by
the guardian. Section 14(2) lays that
every guardian appointed for a person
with disability will be deemed to
function as a limited guardian.
10 All. Pooja Sharma Vs. State of U.P. & Ors.
1187

28. A joint reading of the provisions
of Rights of Persons with Disabilities Act,
2016 and the Mental Healthcare Act, 2017
shows that there is clear distinction
between both the Acts.

29. The Mental Healthcare Act, 2017
only deals with the delivery of mental
healthcare, and services and for connected
matters. The deletion of provisions with
respect to property and affairs and the
absence of any provisions in respect of
moveable or immovable assets, financial
affairs. Hence, we can see a clear departure
from Management of the Property of
mentally ill person which was available in
the Mental Health Act, 1987.

30. Under the Mental Healthcare Act,
2017 the nominated representative is
responsible for providing support in respect
of decisions of treatment, and for taking
decisions in respect of providing access to
family, rehabilitation services, planning of
admission,
planning
of
discharge,
appointments of attendants etc. on behalf of
the mentally ill persons.

Therefore,
the
nominated
representative has to be a person who has
to ensure that the rights and benefits of the
mentally ill person is well protected. As per
Section
14(4)(b)
while
appointing
a
nominated representative, a relative by
blood or marriage or adoption is given
precedence over a care-giver. Section
14(4)(c) recognizes that the care given to a
mentally ill person by a family member,
would be far more than a relative.

31. In the Rights of Persons with
Disabilities Act, 2016 the person with
disabilities would have the right of access
to justice, and the right to legal capacity
etc. under Section 13 of the Rights of
Persons with Disabilities Act, 2016, the
Persons with Disability has a right to take
all decisions in respect of his or her
financial affairs, and own or inherit
movable or immovable property etc. To
protect this right further, Section 13(3)
provides that if a conflict of interest arises
between the Persons with Disability and the
person
providing
support
then
such
supporting person shall abstain from
providing support to the disabled person.
Section 14 envisages limited guardianship
in the case
of
such
Persons
with
Disabilities, who have expressed their
desires in the past or are able to express
their desires, going forward. The provision
of the Rights of Persons with Disabilities
Act, 2016 applies to persons with varying
degrees of disabilities, as the definition of
disabilities is extremely wide.

32. It is clear that the intention of the
Rights of Persons with Disabilities Act,
2016, is to first, examine if the Persons
with Disabilities is capable of expressing
his or her will or preferences, and second,
under exceptional circumstances, where
consultation is not possible, enable the
provision of total support. However, both
the Acts provide for appointment of
Support/Guardian
for
People
with
Particular Disabilities/Mental Illness, but
do not address the situation of a person,
who is in comatose state.

33. The Hon'ble Supreme Court in
the
matter
of
Aruna
Ramchandra
Shanbaug vs Union Of India & Ors2, has
explained difference between permanent
vegetative state and minimal conscious
state. Section 2(s) of the Rights of People
with Disabilities Act, 2016 defines persons
with disabilities. This category of persons
are those who are able to interact though
not fully coherent. Hence, Guardian was to
1188 INDIAN LAW REPORTS ALLAHABAD SERIES
be appointed under Section 14 of the Act.
However, for a person in comatose state,
there is no interaction and the victim would
not respond to any stimuli, hence, the
provisions of personal disability defined
under Section 2(s) of the Act cannot be said
to be attracted in such cases. Therefore, in
the larger interest of patient lying in
comatose state, who is in urgent need of
treatment, support and for that they need
funds to take care of this extraordinary
situation, which cannot be ignored or
compromised,
hence,
the
Court
is
consciously bound to invoke power under
Article 226 of the Constitution of India, to
deal with such situation.

34. Insofar as India is concerned, the
recent judgment of the Supreme Court in
Shafin Jahan v. Ashokan K.M. &
Ors.3, the Court has considered the
scope of 'parens patriae' jurisdiction
and has observed as under:

"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 give shelter to women where
her interest can be best taken care of till
she becomes a major.

35. The Supreme Court of Canada in
E. (Mrs.) v. Eve (supra) observed thus
with regard to the doctrine of Parens
Patriae has held as under :-

"The Parens Patriae jurisdiction
for the care of the mentally 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 in 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 seriousness 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."

36. Recently, the Supreme Court of
New South Wales, in the case of AC v. OC
(a minor), has observed:-

"36. That jurisdiction, protective
of those who are not able to take care of
10 All. Pooja Sharma Vs. State of U.P. & Ors.
1189
themselves,
embraces
(via
different
historical routes) minors, the mentally ill
and those who, though not mentally ill, are
unable to manage their own affairs: Re Eve
[1986] 2 SCR 388 at 407-417; Court of
Australia in Secretary, Department of
Health and Community Services v. JWB
and SMB (Marion's Case (1992) 175 CLR
218 at 258; PB v. BB [2013] NSWSC 1223
at [7]-[8], [40]-[42], [57]-[58] and [64]-
[65].

37. The Court further held that in
order
to
invoke
the
parens
patriae
jurisdiction,
exceptional
circumstances
have to exist. The scope of parens patriae
jurisdiction has to be exercised with great
caution and with enormous seriousness.
The
Supreme
Court
recognises
that
Constitutional
Courts,
including
High
Courts, can also act under their parens
patriae jurisdiction to "meet the ends of
justice". Mental incompetency is listed as
an exceptional circumstance which would
justify the exercise of this jurisdiction. If
the Court is satisfied that the person
concerned is in a vegetative state, then
surely "parens patriae" jurisdiction can
be exercised.

38. Identical situations have arisen
earlier also into various parts of the
country. Different High Courts while
dealing with such identical situations
has passed the following orders.

39. In the matter of Smt. Shalini
Agarwal and others vs. State of U.P.
and others4, a Coordinate Bench of
this Court in identical situation where
husband of the petitioner was in
vegetative state, declared his wife as
guardian
who
was
in
comatose
condition and further allowed her to do
all the acts, deeds and things for proper
medical treatment and welfare of her
husband.

40. In Uma Mittal vs. Union of
India5,
the
Allahabad
High
Court
appointed the wife of a person in comatose
state, as his guardian, and framed similar
guidelines for the state of Uttar Pradesh, as
the Shobha Gopalakrishnan vs. State of
Kerala6 [W.P. (C). 37278 of 2018, decided
on 20th February, 2019],

41. In an identical situation in the
matter of Sairabanu Mohammed Rafi Vs.
State of Tamil Nadu7, passed by Madras
High Court the wife of a person in
comatose state was appointed as the
guardian of her husband and she was
allowed to deal with his immovable
properties and also operate the bank
accounts.

42. Likewise in Writ Petition (L)
No.28269 of 2017, Philomena Leo Lobo
Vs.
Union
of
India8
decided
on
13.10.2017, a Division Bench of Bombay
High Court had 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.

43. In an identical case, in the matter
of Dr. Madhu Vijaykumar Gupta v. The
State of Maharashtra and others9,
Bombay High Court vide its judgment
dated 30th April, 2019 has allowed the
petitioner to be the guardian of her
husband, who was in comatose condition
and appointed her as Manager to all the
movable and immovable properties of her
husband.

44. A Division Bench of Bombay
High Court in Smt Reshma Salam
1190 INDIAN LAW REPORTS ALLAHABAD SERIES
Kondkari Vs. Union of India10, 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.

45. In Writ Petition (L) No.10787 of
2022, Rita Arvind Kakodkar vs. State of
Maharashtra11, decided on 11.4.2022 a
Division Bench of Bombay High Court
has considered the similar matter and
appointed the petitioner as guardian at
law of Shirishkumar Shantilal Parekh
and also permitted to manage his
movable and immovable property.

46.