# Uma Mittal & Ors v. Union of India & Ors

- **Citation:** (2020) 6 ILRA 314
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-15
- **Case number:** Writ-C No. 40096 of 2019
- **Bench:** Shashi Kant Gupta, Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/uma-mittal-ors-v-union-of-india-ors-45823
- **Pages:** 14

## Headnote

A. Constitution of India - Article 226 -
Article 21 - Constitution of India - Article
226 , Article 21 - Appointment of guardians
qua persons lying in a comatose state - doctrine
of Parens patriae (father of the country) - Court
cannot shirk its responsibility when a distress
call is given by a sinking family of a person lying
in a comatose state for the past year and a half
- The dominant factor - protection of the rights
of a human being lying in a comatose state
under Article 21 of the Constitution of India -
Court under Article 226 - is the ultimate
guardian - can pass orders and give direction as
are necessary for subserving the ends of justice
when no remedy is provided in any statute in
respect to persons lying in comatose/vegetative
state
- may provide adequate relief of
appointment of a Guardian. (Para-20,25,26)

Husband of the petitioner No.1(Wife) - sole
bread earner in the family - lying in a
comatose
state
-
has
properties
(immovable/movable,
investments,
bank
accounts, deposits etc.) in his name -
petitioners are not in a position to deal with
the same due to legal hurdles - Petitioners
have
incurred
huge
expenses
for
his
treatment which has already lasted for
more than a year and a half - for which
they have even resorted to borrowing
money
from
relatives
and
friends
-
petitioners in precarious financial condition
- knocking door of this Court for appointing
as a guardian of her husband. (Para-30)

HELD:- Petitioner No. 1(Wife) appointed as
the guardian of her husband, who is in a
comatose
condition,
vested
with
the
property of her husband to do all acts,
deeds and things for the proper medical
treatment, nursing care, welfare and benefit
of her huband and his children and with
power to do all acts, deeds and things with
respect
to
assets
and
properties
her
husband.(Para-33)

Petition disposed of finally.(E-7)

List of cases cited:-

1.Aruna Ramchandra Shanbaug Vs U.O.I. (2011)
4 SCC 454 (Paras 127 & 131)

2.Shafin Jahan Vs Asokan KM (2018) 16 SCC
368 (Paras 45 & 46)

3.Shobha Gopalakrishnan & ors. Vs St. of Kerala
& ors. (2019) SCC Online Ker 739 (Para 42 &
43)

4.Vandana Tyagi Vs Govt. of National Capital
Territory of Delhi & ors. (2020) SCC Online Del
32 (Para 76)
6 All. Uma Mittal & Ors. Vs. Union of India & Ors.
315
5.Philomena Leo Lobo Vs U.O.I. (2017) SCC
Online Bom 8836 (Para 6)

6.Dr. Kuldeep Chand Maria Vs U.O.I. & ors.
(2016) SCC Online HP 497 (Para 4)

## Text

_Characters 0–39,972 of 45,162. This is a partial read: ask again with offset=39972 for what follows._

314 INDIAN LAW REPORTS ALLAHABAD SERIES

9. The orders dated 28.3.2018,
4.12.2018 and 30.4.2019 by which the
licence of the petitioner was suspended, the
licence was cancelled and thereafter the
appeal was dismissed, respectively, are
being
set-aside. The
licence
of
the
petitioner to run the Fair Price Shop shall
now be restored.

10. The writ petition is, accordingly,
allowed with the aforesaid observations.
----------
(2020)06ILR A314
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.06.2020

BEFORE

THE HON'BLE SHASHI KANT GUPTA, J.
THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ-C No. 40096 of 2019

Uma Mittal & Ors. ...Petitioners
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioners:
Sri Bidhan Chandra Rai

Counsel for the Respondents:
A.S.G.I., Sri Amrish Sahai, Sri C.S.C., Sri
Maneesh Mehrotra, Sri Satish Chaturvedi,
Sri Seema Singh, Sri Maneesh Mehrotra

A. Constitution of India - Article 226 -
Article 21 - Constitution of India - Article
226 , Article 21 - Appointment of guardians
qua persons lying in a comatose state - doctrine
of Parens patriae (father of the country) - Court
cannot shirk its responsibility when a distress
call is given by a sinking family of a person lying
in a comatose state for the past year and a half
- The dominant factor - protection of the rights
of a human being lying in a comatose state
under Article 21 of the Constitution of India -
Court under Article 226 - is the ultimate
guardian - can pass orders and give direction as
are necessary for subserving the ends of justice
when no remedy is provided in any statute in
respect to persons lying in comatose/vegetative
state
- may provide adequate relief of
appointment of a Guardian. (Para-20,25,26)

Husband of the petitioner No.1(Wife) - sole
bread earner in the family - lying in a
comatose
state
-
has
properties
(immovable/movable,
investments,
bank
accounts, deposits etc.) in his name -
petitioners are not in a position to deal with
the same due to legal hurdles - Petitioners
have
incurred
huge
expenses
for
his
treatment which has already lasted for
more than a year and a half - for which
they have even resorted to borrowing
money
from
relatives
and
friends
-
petitioners in precarious financial condition
- knocking door of this Court for appointing
as a guardian of her husband. (Para-30)

HELD:- Petitioner No. 1(Wife) appointed as
the guardian of her husband, who is in a
comatose
condition,
vested
with
the
property of her husband to do all acts,
deeds and things for the proper medical
treatment, nursing care, welfare and benefit
of her huband and his children and with
power to do all acts, deeds and things with
respect
to
assets
and
properties
her
husband.(Para-33)

Petition disposed of finally.(E-7)

List of cases cited:-

1.Aruna Ramchandra Shanbaug Vs U.O.I. (2011)
4 SCC 454 (Paras 127 & 131)

2.Shafin Jahan Vs Asokan KM (2018) 16 SCC
368 (Paras 45 & 46)

3.Shobha Gopalakrishnan & ors. Vs St. of Kerala
& ors. (2019) SCC Online Ker 739 (Para 42 &
43)

4.Vandana Tyagi Vs Govt. of National Capital
Territory of Delhi & ors. (2020) SCC Online Del
32 (Para 76)
6 All. Uma Mittal & Ors. Vs. Union of India & Ors.
315
5.Philomena Leo Lobo Vs U.O.I. (2017) SCC
Online Bom 8836 (Para 6)

6.Dr. Kuldeep Chand Maria Vs U.O.I. & ors.
(2016) SCC Online HP 497 (Para 4)

7. Charan Lal Sahu Vs U.O.I. (1990) 1 SCC 613
(Para 35 and 36)

(Delivered by Hon'ble Shashi Kant Gupta, J.)

1. The present writ petition has been
preferred seeking the following relief:

(a) issue a writ, order or
direction in the nature of mandamus
appointing petitioner No.1, namely Uma
Mittal, W/o Sri Sunil Kumar Mittal, as
the guardian of her husband to protect
his interest, administer bank accounts,
investments, proprietorship business, etc.
and in the event of necessity, to sell the
immovable property standing in the
name of her husband and to use the
proceeds towards medical treatment of
her
husband
and
family
welfare
expenses;

Backdrop

2. The material facts of the case as
pleaded in the writ petition are as follows:

3. Petitioner No.1, is the wife of Sri
Sunil Kumar Mittal (in short 'SKM'), son of
Late Visheshwar Dayal Mittal. The couple
had four children (Petitioners Nos. 2 to 5)
i.e. three daughters namely Mrs. Mohini
Mittal Raizada, Ms. Ritika Mittal, Ms.
Ruchika Mittal and a son Mr. Raghav
Mittal; Petitioner No. 2 is a married
daughter, married to Sri Mukul Raizada and
is presently residing with her husband at
Gurgaon, Haryana. However, Petitioners
No. 3 and 4 are unmarried daughters and
Petitioner No. 5 is the son. The Petitioners
No. 3, 4 and 5 are residing with Petitioner
No. 1 at their parental house 43-A/9B,
Clive Road, Civil Lines, Prayagraj;

4. It has been pleaded that on 22-122018 at about 1:30 a.m., it was discovered
that SKM had fallen in the bathroom of his
residence where he was lying unconscious,
suffering from a severe head injury, nasal
bleeding
and
vomiting.
He
was
immediately taken to Haridaya Superspeciality Centre and thereafter to Kriti
Scanning Centre where C.T. scan of his
brain was carried out. On the same day
about 3:30 AM, he was discharged from
Haridaya Nursing Home. The discharge
card mentioned that he was suffering from
intracranial bleeding. The Glasgow Coma
Scale (GCS) was 6 (E1V1M4) and pupil
right NSRL and left dilated non-reacting;
Subsequently, he was taken to Dr. Ram
Manohar
Lohia
Institute
of
Medical
Sciences, Lucknow where he was operated
upon
on
22-12-2018.
Tracheostomy
tube was inserted on 24-12-2018 and he
was shifted to incentive care unit for almost
fifteen days. The certificate dated 01-012019 shows that treatment of brain
haemorrhage is going on and patient is in a
comatose state; since treatment did not
show any sign of meaningful neurological
recovery at R.M.L. Institute, SKM was
flown to New Delhi where he was admitted
in Indraprastha Apollo Hospital on 07-012019, where he was kept in incentive care
unit; after being hospitalized almost for
five months, SKM was discharged from
Apollo Hospital on 01-05-2019 at GCS
E4VtM4, which means that he was in a
comatose state. He was taken to his sister's
residence in Noida on 01-05-2019, which is
near to Apollo Hospital. The petitioner
arranged two nursing staff from H.D.U.
Care Unit, New Delhi to look after SKM.
Petitioner No.1 stayed together with him up
to 26-08-2019 for routine check-ups.
316 INDIAN LAW REPORTS ALLAHABAD SERIES

5. On 29-05-2019, SKM was again
admitted for routine check-up. Thereafter
he was discharged on 01-06-2019 at GCS 7
(E4VtM2). It is noteworthy that during the
routine check-up, the Doctors opined that
till his eventual demise, patient would
remain in comatose condition. Petitioner
No.1 has been further advised that
continued supportive treatments have to be
followed up for his entire life time; In these
circumstances, SKM was brought back
home at Prayagraj. A room in the house of
the petitioners, has been converted into a
ward (like ICU) and petitioner No.1 has
arranged two nursing staff for the care and
comfort of SKM. After being discharged
from the Apollo Hospital, SKM has not
been able to communicate and has been
breathing with the help of 'Tracheotomy
Tube' in his throat.

6. It has been further pleaded that
petitioner No. 1 applied for a disability
certificate before the Chief Medical Officer,
Prayagaraj. According to Chief Medical
Officer, SKM does not come within the
definition of a person with multiple
disabilities within the meaning of ''National
Trust for the Welfare of Persons with
Autism,
Cerebral
Palsy,
Mental
Retardation, and Multiple Disabilities Act,
1999' (hereinafter referred to as "the
National Trust Act, 1999"). The Chief
Medical Officer issued a certificate on 0411-2019, to the effect that he is bed ridden,
in a comatose state; SKM is being fed by a
'Peg Tube' attached to his stomach. His
position
has
to
be
changed
after
intermittent intervals to avoid bedsores. It
is stated that the expenses of the treatment
and nursing care of SKM has been met by
the family savings and by taking loans from
relatives and partly from the rent earned
from his properties; SKM needs to be taken
to the hospital for his periodic review.
Apart from that the Petitioner No. 1 is also
responsible for the marriage of the second
and third petitioners for which she has to
arrange the necessary expenses while also
meeting the other needs of the family;
medical expenses for the day-to-day
treatment, are also more than the rent being
received and the petitioners are also unable
to repay the loans without drawing money
from the bank accounts. However, the Bank
accounts stand in the name of SKM, and as
such petitioners are not in a position to
operate the same; Petitioner No.1 has
already
incurred
huge
expenses,
by
borrowing money from various quarters for
his treatment. Having exhausted all her
financial resources, Petitioner No.1 is in
state
of
depression,
despair
and
abandonment, besides undergoing from
irretrievable agony, stress and suffering on
account of the plight of her husband lying
in a vegetative state; parents of SKM have
already
expired.
After
the
family
settlement, the petitioners are residing in
the family house at 43-A/9B Clive Road,
Civil Lines, Prayagraj. The said residential
house is mortgaged with the State Bank of
India against two loans bearing Account
Nos. 30867822772 and 31948452304.

7. It has been further pleaded that
SKM was carrying on business as a sole
proprietor, till December 2018. He also
owns a shop bearing no. B-36, Upper
Basement, Indra Bhawan, Civil Lines,
Prayagraj. However, in the year 2015, he
sold the shop to one Sri Zakir Husain after
receiving consideration, which has been
shown in his books of accounts but the
registry of the said shop could not be done
as SKM is lying in a comatose state; SKM
is the owner of property in Vinayak
Enclave, M.G. Marg, Civil Lines, Prayagraj
fetching a rent of Rs. 54,000/- per month;
the aforesaid property has been let out to
6 All. Uma Mittal & Ors. Vs. Union of India & Ors.
317
UPTEC Computer Consultancy Ltd. at the
rate of Rs. 33,110/- in terms of agreement
dated 15-11-2007; SKM also owns a shop
bearing Shop No. G-1, Gayatri Dham,
Milan Square, 128/24, M.G. Marg, Civil
Lines, Prayagraj wherein Plywood retail
business was being carried out in the name
of Ply House. This shop was purchased on
24-05-2012 in the name of petitioner no. 1.
The said shop is also mortgaged with South
Indian Bank Ltd. against cash credit limit
for running the business of Ply House as
well as for getting an overdraft loan.

8. SKM has Savings Bank Account,
Current Account, PPF Account, Loan
Account, Overdraft Account and Cash
Credit Limit Account with the Respondent
No. 5, State Bank of India and Respondent
No. 6, South Indian Bank Limited. SKM is
the sole signatory of the accounts and being
in a comatose condition, the Petitioners are
unable to operate the various bank
accounts, the details of which are as
follows:

Bank
Name
Name of
Account
Holder
Account Number Type
of
Account
S.B.I.
SKM
11076362778
PPF
S.B.I.
SKM
(HUF)
11076362778
PPF
S.I.B.L.
SKM
06270530000033
69
Saving
S.I.B.L.
SKM
06270810000000
61
Overdraft
 General
S.I.B.L.
SKM
06276520000002
49
Car Loan
S.I.B.L.
S.
K.
Mittal
(HUF)
06270530000026
76
HUF
S.I.B.L.
Ply
House
06270840000000
05

Cash Credit
S.I.B.L.
Furniture 06270840000000
Current
House
03

9. It has been further pleaded that
apart
from
the
aforesaid
immovable
properties,
SKM
also
holds
some
investments in ''Anand Rathi' having
customer
I.D.
as
ALBDS176
and
ALBDS177, out of which some of them are
mutual funds, shares and S.I.P.'s. SKM also
holds various LIC Policies, Insurance
Policies from various companies;

Submissions of the learned counsel
for the parties.

10. Sri Bidhan Chandra Rai, learned
counsel for the petitioner, submitted that
the Reserve Bank of India, in order to help
sick and disabled people to operate their
accounts,
has
issued
circulars
No.RBI/2007-2008
/189;
DBOD
No.
LegB.C.51/ 09.07.005/2007-08 dated 1911-2007 advising the Banks to accept
Guardianship Certificates issued under
National Trust Act, 1999 but the circular, as
stated, is not applicable in respect of a
person lying in a comatose state.

11. In support of his contention,
learned counsel for the petitioner has
placed
reliance
upon
the
following
decisions:-

(I)
Aruna
Ramchandra
Shanbaug Vs. Union of India; (2011) 4
SCC 454 (Paras 127 & 131);

(II) Shafin Jahan Vs. Asokan
KM; (2018) 16 SCC 368 (Paras 45 & 46);

(III) Shobha Gopalakrishnan
and others Vs. State of Kerala and others;
(2019) SCC Online Ker 739 (Para 42 &
43)

(IV)
Vandana
Tyagi
Vs.
Government of National Capital Territory
318 INDIAN LAW REPORTS ALLAHABAD SERIES
of
Delhi and others; (2020) SCC Online
Del 32 (Para 76)

(V) Philomena Leo Lobo Vs.
Union of India and others; (2017) SCC
Online Bom 8836 (Para 6)

(VI) Dr. Kuldeep Chand Maria
Vs. Union of India & Others; (2016) SCC
Online HP 497 (Para 4)

12. He further submitted that this
Court in exercise of its powers under
Article 226 of the Constitution of India can
invoke the doctrine of Parens patriae and
appoint the petitioner No. 1, Uma Mittal as
a Guardian of her husband SKM, who is
still lying in a comatose state. Learned
counsel for the petitioner while referring to
various
legislative
enactments
has
submitted that none of the provisions of
any of the Acts provide for appointment of
guardians for a person in a comatose state,
unlike legislations for appointment of
guardian for minors and persons with other
multiple disabilities or mental illnesses like
mental retardation etc. In this regard he
referred to the provisions of the following
enactments:

(a) The Guardians and Wards Act,
1890,

(b) The Code of Civil Procedure,
1908,

(c) The Indian Lunacy Act, 1912
(repealed),

(d) The Hindu Minority and
Guardianship Act, 1956,

(e) The Mental Health Act, 1987
(repealed),

(f) The Persons with Disabilities
(Equal Opportunities, Protection of Rights
and
Full
Participation)
Act,
1995
(repealed),

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

(h) The Rights of Persons with
Disabilities Act, 2016 and The Mental
Health Care Act, 2017

13. Sri Saurabh Srivastava, learned
Chief Standing Counsel, appearing on
behalf of the Respondents No. 2 to 4 has
not disputed the averments made by the
petitioner and has filed a short counter
affidavit annexing the Medical Report of
SKM by a Three Members Committee
constituted for the purpose, in pursuance of
the earlier directions issued by this Court.

14. Sri Amrish Sahai, learned counsel
for the Respondent No. 5, State Bank of
India, has not disputed the facts narrated in
the writ petition, but has raised a sole
objection to the effect that the State Bank
of India should have been impleaded
through its main Branch, but the same has
no bearing on the merit of the matter and as
such we find no substance in the
preliminary objection so raised.

Discussion

15. Heard learned counsel for the parties
through Video Conferencing and perused
the record.

16. A perusal of the order sheet dated
7.12.2019 passed by this Court indicates
that
the
learned
Standing
Counsel
appearing on behalf of Respondents No. 2
to 4 was granted two weeks' time to file
counter affidavit annexing the medical
report of SKM, husband of Petitioner No.
1. In pursuance of the aforesaid direction, a
short counter affidavit has been filed
annexing therewith a medical report by a
"Medical Board" consisting of Dr. Rahul
Singh, Deputy Chief Medical Officer, Dr.
R.C. Pandey,
Deputy
Chief
Medical
Officer, Prayagraj and Dr. Anil Kumar,
6 All. Uma Mittal & Ors. Vs. Union of India & Ors.
319
Additional
Chief
Medical
Officer,
Prayagraj. For ready reference, the said
report is quoted hereinebelow:-

"Medical Examination Report

As per order of Hon'ble High
Court Prayagraj dated 06/01/2020, in
respect to WRIT PETITION No. 40096
OF 2019, Uma Mittal and (4) Four
others versus Union of India with 5
(Five) Others and C.M.O. Prayagraj,
Order No. ............... A Medical board is
constituted that comprised of Dr. Anil
Kumar A.C.M.O Prayagraj, Dr. R.C.
Pandey, Deputy C.M.O Prayagraj and
Dr.
Rahul
Singh,
Deputy
C.M.O.
Prayagraj,
the
board
thoroughly
examined the patient at his residence,
43A/9B,
Clive
Road,
Civil
Lines,
Prayagraj at 11.30 AM on 11/01/2020.

As per records available, the
patient
had
sustained
injuries
on
22/12/2018. His general condition is very
poor state.

The Examination report is as
follows:

Patient was found lying on bed
with life support, (Tracheostomy tube is
present in situ with oxygen support,
pulse omimeter is there and SPO2
reading-100% on 1.5 Litre of Oxygen,
with heart rate 92 beats per minute, Peg
tube was in situ and Foley's Catheter is
in situ.)

On examination, the patient is
found in Unconscious state is not
oriented in time place and person and
also was not responding to any painful
stimulus.

Patient is not in position to
recognize surrounding people around
him and not in position to make any
signature or perform any other physical
activity.

Patient's Right Thumb Impression
is attested below.

Medical Board Members:

Dr. Anil Kumar Dr. R.C. Pandey

Dr. Rahul Singh

A.C.M.O, Prayagraj Deputy C.M.O,
Prayagraj Dy.C.M.O Prayagraj"

17. A perusal of the said report clearly
indicates that on examination, the patient
was found in an unconscious state and is
not oriented in time or place and was also
not responding to any painful stimuli.
Patient is also not in a position to recognize
the people around him and not in a position
to make any signatures or perform any
other physical activity. Thus, the husband
of Petitioner No. 1 was found in a
vegetative state.

18. From a perusal of the record and
the submissions made by the learned
counsel for the petitioner, it is evident that
the husband of the petitioner, SKM is lying
in a comatose state. The petitioners have
already
incurred
huge
expenses
in
connection with the treatment and have
exhausted their financial resources. They
are in a state of despair, abandonment,
isolation and are undergoing agony, stress
and depression on account of pathetic
condition of the victim who is lying in a
vegetative state, as such, the petitioners
were compelled to approach this Court for
appointing the petitioner no. 1, wife of the
SKM to be his Guardian submitting that no
legislation
in
India
provides
for
appointment of Guardian for a person lying
in comatose state unlike legislation for
appointment of Guardians for minor and
persons with other disabilities like mental
retardation etc. While referring to the
judgment passed by Kerala High Court in
320 INDIAN LAW REPORTS ALLAHABAD SERIES
the case of Shobha Gopalkrishnan
(supra), learned counsel for the petitioner
has submitted that, while invoking the
doctrine of "parens patriae", the Kerala
High Court, has appointed the legal heir of
the victim as a guardian, holding that no
legislation
in
India
provides
for
appointment of guardian to a person in a
comatose state. The said judgment of
Shobha Gopalkrishnan (supra) has been
followed by the Delhi High Court in the
case of Vandana Tyagi (supra), wherein
discussions in this regard, have been made
from Paragraphs 57 to 68 which are being
quoted hereinbelow:-

"57. A bare perusal of the
Guardians and Wards Act, 1890 (in short
"the 1890 Act") would show that it deals
with appointment of guardians qua
minors. The 1890 Act, thus, has no
applicability to persons who are major.

58. Insofar as the 1987 Act is
concerned, it cannot be relied upon by
the SBI which, as noticed above, even
according to the SBI, stands repealed.
This Act, once again, would have no
applicability. The 1987 Act was repealed
with the enactment of the 2017 Act. The
provision qua repeal is made in Section
126 of the 2017 Act. The 1987 Act, thus,
as
noticed
above,
can
have
no
applicability in the instant case.

59. Insofar as the Persons with
Disabilities
(Equal
Opportunities,
Protection
of
Rights
and
Full
Participation) Act, 1995 (in short "PWD
Act") is concerned, the same also stands
repealed with the enactment of the
Rights of Persons with Disabilities Act,
2016 (in short "RPWD Act"). The
provision to this effect is made in Section
102 of the latter Act.

60. This, essentially, leaves one
with the task of considering the scope
and ambit of three statutes i.e. the 2017
Act, the 2019 Act, and the RPWD Act.

61. Insofar as the RPWD Act
is concerned, it was enacted with the
view to give effect to the United
Nations Conventions on the rights of
persons
with
disabilities
and
for
matters
connected
therewith
or
incidental thereto. The United Nations
General
Assembly
adopted
the
aforementioned
convention
on
13.12.2006. India is a signatory to this
convention which was ratified by it on
01.10.2007. The convention came into
effect from 03.05.2008. Though, India
enacted
the
PWD
Act
in
1995,
subsequent learning propelled India to
adopt
a
rights
based
approach.
Consequent thereto, the PWD Act, as
adverted to above, was repealed and
RPWD Act was enacted. While, this
Act, inter alia, makes provisions for
rights and entitlements of persons with
disability, persons with benchmark
disability, and persons with disability
with high support needs, there appears
to be no provision in this statute
concerning persons in comatose state.
It is relevant to note that Section 14 of
the RPWD Act makes a provision for
guardianship with respect to persons
with disability. The definition provided
under Section 2(s) of the very same Act,
qua persons with disability, does not
cover a person, who is in comatose state :

"2. Definitions.-

xxx

xxx

xxx

(s)"person
with
disability"
means 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."
6 All. Uma Mittal & Ors. Vs. Union of India & Ors.
321

62. Likewise, the 2017 Act
which was enacted to provide for mental
healthcare and services of persons with
mental illness and matters connected and
incidental thereto it does not take within
its sweep a person, who is in comatose
state. Section 2(s) of the 2017 Act which
defines mental illness reads as follows:

"2. Definitions.-

xxx

xxx

xxx

(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 sub-normality
of intelligence."

63. A bare perusal of the same
shows that a person who is in comatose
state is not covered.

64. The 1999 Act which was
enacted to create a national trust for
welfare of persons afflicted with autism,
cerebral palsy, mental retardation and
multiple disability also does not appear
to cover a person, who is in comatose
state. The definition of autism, cerebral
palsy and mental retardation given in
Sections 2(a), 2(c) and 2(g) respectively,
on a plain reading, are suggestive of the
fact that a person, who is in comatose
state cannot fall within the scope and
ambit of any of the three diseases defined
in these sections.

65. Insofar as the multiple
disabilities are concerned, the said
expression has been defined in Section
2(h) of the 1999 Act. This provision reads
as follows :

"2. Definitions.-

xxx

xxx

xxx

(h)
"Multiple
Disabilities"
means a combination of two or more
disabilities as defined in clause (i) of
section 2 of the Person with Disabilities
(Equal
Opportunities,
Protection
of
Rights and Full Participation) Act, 1995
(1 of 1996)."

66. As would be evident, the
definition of multiple disabilities has
been tied in with Section 2(i) of the PWD
Act which, as noticed above, stands
repealed. However, for the sake of
convenience, Section 2(i) of the PWD Act
is extracted hereafter :

"2. Definitions.-

xxx

xxx

 xxx

(i) "disability" means-

(i) blindness;

(ii) low vision;

(iii) leprocy-cured;

(iv) hearing impairment;

(v) locomotor disability;

(vi) mental retardation;

(vii) mental illness."

67. As is obvious, there are
seven disabilities adverted to in Section
2(i) of the PWD Act. The definition of
"mental retardation" in Section 2(r) of
the PWD Act is identical to the definition
of the expression "mental retardation"
given in Section 2(g) of the 1999 Act. The
expression "mental illness" has been
defined in Section 2(q) of the PWD Act,
which reads as follows:

"2. Definition.-

xxx

xxx

 xxx

(q)"mental illness" means any
mental disorder other than

mental retardation."

68. A careful perusal of these
definitions would show that a person
who is in comatose state is not covered."
322 INDIAN LAW REPORTS ALLAHABAD SERIES

19. We have gone carefully through
the aforementioned judgments of Kerala
High Court and Delhi High Court as
referred to hereinabove. We are in total
agreement with the analysis and the view
expressed by them holding that none of
legislative
enactments
provide
for
appointment of a guardian for a person
lying in a comatose state.

20. Now the question arises that when
there is no legislative enactment, providing
for appointment of a guardian for a person
lying in a comatose state, how the matter
with regard to appointment of guardian
should be dealt with. We cannot lose sight
of the fact that we have been called upon to
discharge 'parens patriae' jurisdiction. The
Court under Article 226 of the Constitution
of India can pass orders and given
directions as are necessary for subserving
the ends of justice when no remedy is
provided in any statute in respect to persons
lying in comatose condition.

21. The doctrine of Parens Patriae (father
of the country) had originated in British law as
early as the 13th century. It implies that the
King is the father of the country and is under
obligation to look after the interest of those who
are unable to look after themselves. The idea
behind 'Parens Patriae' is that if a citizen is in
need of someone who can act as a parent who
can make decisions and take some other action,
sometimes the State is best qualified to take on
this role.

22. In the Constitution Bench decision of
this Court in Charan Lal Sahu vs. Union of
India (1990) 1 SCC 613 (vide paras 35 and
36), the doctrine has been explained in some
detail as follows:

"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 guardianship over
persons under disability. Parens patriae
jurisdiction, it has been explained, is the
right of the sovereign and imposes a duty
on the 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".

23. The duty of the King in feudal
times to act as parens patriae (father of
the country) has been taken over in
modern times by the State.

24. The Apex Court in the case of
Shafin
Jahan
(supra)
has
further
expanded the jurisdiction of the Court in
application of doctrine of parens patriae
and has held as under:

"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
6 All. Uma Mittal & Ors. Vs. Union of India & Ors.
323
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.

46. Mr. Shyam Divan, learned
senior counsel for the first respondent,
has submitted that the said doctrine has
been expanded by the England and
Wales Court of Appeal in a case DL v. A
Local Authority and others19. The case
was in the context of "elder abuse"
wherein a man in his 50s behaved
aggressively
towards
his
parents,
physically
and
verbally,
controlling
access to visitors and seeking to coerce
his father into moving into a care home
against his wishes. While it was assumed
that the elderly parents did have
capacity within the meaning of the
Mental Capacity Act, 2005 in that
neither was subject to "an impairment
of, or a disturbance in the functioning of
the mind or brain", it was found that the
interference with the process of their
decision making arose from undue
influence and duress inflicted by their
son. The Court of Appeal referred to the
judgment in Re: SA (Vulnerable Adult
with Capacity : Marriage)20 to find that
the parens patriae jurisdiction of the
High Court existed in relation to
"vulnerable if 'capacitous' adults". The
cited decision of the England and Wales
High Court (Family Division) affirmed
the existence of a "great safety net" of
the inherent jurisdiction in relation to all
vulnerable adults. The term "great
safety
net"
was
coined
by
Lord
Donaldson in the Court of Appeal
judgment which was later quoted with
approval by the House of Lords in In Re
F (Mental Patient: Sterilisation21. In
paragraph 79 of Re: SA (Vulnerable
Adult with Capacity : Marriage), Justice
Munby observes:"

The inherent jurisdiction can
be invoked wherever a vulnerable adult
is, or is reasonably believed to be, for
some reason deprived of the capacity to
make the relevant decision, or disabled
from
making
a
free
choice,
or
incapacitated or disabled from giving or
expressing a real and genuine consent.
The cause may be, but is not for this
purpose limited to, mental disorder or
mental illness. A vulnerable adult who
does not suffer from any kind of mental
incapacity may nonetheless be entitled to
the
protection
of
the
inherent
jurisdiction if he is, or is reasonably
believed
to
be,
incapacitated
from
making the relevant decision by reason
of such things as constraint, coercion,
undue
influence
or
other
vitiating
factors."

25. Thus, a perusal of the aforesaid
decisions
clearly
indicates
that
the
Constitutional Courts may also act as
parens patriae so as to meet the ends of
justice. The Constitutional Courts in the
country have exercised parens patriae
jurisdiction in the matter of child custody,
treating the issue of custody of a child to be
of paramount concern. Similarly, the
doctrine has been invoked in cases where a
person who is mentally retarded, is
produced before a Court in a writ of
Habeas Corpus. These are the rare
situations, when the Court can invoke the
aforesaid doctrine.

26. In our opinion, in the present case
this Court cannot shirk its responsibility
when a distress call is given by a sinking
family of a person lying in a comatose state
for the past year and a half. The dominant
factor, after all, is not enforcement of rights
guaranteeing protection of life of warring
parties
under
Article
226
of
the
324 INDIAN LAW REPORTS ALLAHABAD SERIES
Constitution but the protection of the rights
of a human being lying in a comatose state
under Article 21 of the Constitution of
India. The Court under Article 226 can pass
orders and give direction as are necessary
for subserving the ends of justice or to
protect the person who is lying in a
vegetative state. Under the circumstances,
this Court, under Article 226 of the
Constitutions of India, is the ultimate
guardian of a person who is lying in a
comatose/vegetative state and may provide
adequate relief of appointment of a
Guardian.

27. It may be noted that the Division
Bench of Kerala High Court in the case of
Shobha Gopalakrishnan (supra) has
framed certain broad guidelines with regard
to appointment of guardian qua a person
lying in a comatose state since no specific
provision was available in any statute in
this regard, The guidelines framed by the
Division Bench of Kerala High Court
appear to be formidable and sound and,
therefore, can be used as framework for
formulating guidelines that need to be
implemented in the State of Uttar Pradesh
till such time, the legislative enactments are
framed and specific provisions are made as
to how guardians are to be appointed qua
persons in a comatose state.

28. Thus, taking a cue from the
decision
of
Shobha
Gopalakrishnan
(supra),
we
fix
the
following
norms/guidelines as a temporary measure
till an appropriate enactment is legislated as
to how guardians are to be appointed vis-avis an individual who is lying in comatose
state:-

"Guidelines

(i) A person(s) who seek(s) to be
appointed as guardians vis-à-vis an
individual, who is lying in comatose
state, shall in their petition to the High
Court (in short 'Court') disclose the
details of all tangible and intangible
assets of such an individual. The details
as to their location and approximate
market value shall also be disclosed. In
case of bank accounts, stocks, shares,
and debentures and other investments
are concerned, material particulars will
be provided.

(ii) The Court will have the
person lying in comatose examined by a
duly constituted medical board which
would include, inter alia, a neurologist.

(iii) The court will also direct
the concerned SDM/Tehsildar in whose
jurisdiction the person lying in comatose
is said to be located to carry out an
enquiry to establish the veracity of the
assertion
and
to
gather
material
particulars concerning the person(s) who
approach the court for being appointed
as guardians. The enquiry will, inter alia,
gather
information
as
regards
the
relationship that the person(s) who wish
to be appointed as guardians has/have
with the person lying in comatose state.
Information with regard to the financial
condition of persons wanting to be
appointed as guardians shall also be
collected apart from other aspects which
may have a material bearing in their
discharging the duties of a guardian. Any
conflict of interest concerning the affairs
of the person lying in comatose state will
be brought to fore in the report
generated during the course of the
enquiry.

(iv) Ordinarily only that person
will be appointed as guardian who is a
spouse or a progeny of the person lying
in
comatose.
The
person
seeking
appointment as a guardian in his petition
to the court will, however, disclose the
particulars of all legal heirs of the person
lying in comatose. In the event, the
6 All. Uma Mittal & Ors. Vs. Union of India & Ors.
325
person lying in comatose has neither a
spouse nor any children or even any legal
heirs or if he/she has such persons in his
life but stands abandoned by them
subject to the permission of the court his
next friend who wishes to be appointed
as a guardian can approach the court
with such a request. In the alternative,
the Court could direct the Department of
Social Welfare, GNCTD to appoint a
public official such as a Social Welfare
Officer or a person holding equivalent
rank to act as the guardian of the person
lying in comatose state.

(v) Only that person shall be
appointed
as
a
guardian
who
is
otherwise in law competent to act as a
guardian.

(vi)
The
order
directing
appointment of a guardian shall specify
the assets qua which the guardianship
order is passed. The court will be
empowered to modify the order and
bring within its sweep other assets, if
required, in the interest of the person
lying in comatose state. In case liquid
funds are not available and there is a
requirement to sell the assets of the
person lying in comatose state, upon the
guardian
approaching
the
court,
necessary directions could be passed in
that behalf.

(vii) The person appointed as a
guardian will file every six (6) months
(or within such period as the court may
indicate in its order) a report with the
Registrar General of this court. The
report shall advert to the transactions
undertaken by the guardian in respect of
the assets of the person lying in comatose
state. Besides this, the report shall also
indicate the funds, if any, received by the
guardian and their utilization for the
purposes of maintaining the person lying
in comatose state.

(viii) The Registrar General of
this court will cause a separate register
to be maintained which will set out inter
alia the details of the proceedings, the
particulars of the person appointed as a
guardian and orders, if any, passed after
the
appointment
of
the
guardian.
Measures will also be taken by the
Registrar
General
to
preserve
the
reports filed by the guardian from time
to time.

(ix) It will be open to the court
to appoint a guardian either temporarily
or for a limited period, as may be
deemed fit.

(x) In the event, the guardian
appointed by the court misuses his/her
power or misappropriates, siphons or
misutilizes the assets of the person
lying in comatose state or fails to
utilize the assets in the best interest of
the person lying in comatose state, the
court would have the power to remove
the guardian and appoint another
person
in
his/her
place.
The
substituted person could also be a
public officer such as a Social Welfare
Officer or an officer holding an
equivalent rank.

(xi) The guardian appointed
by the court will ensure that the
transactions entered into by him or
her
comport
with
the
relevant
provisions of the law.

(xii) In case a relative or a next
friend of the person lying in comatose state
finds that the guardian is not acting in the
best interest of the person lying in comatose
state, such person will also have the locus to
approach
the
court
for
issuance
of
appropriate directions and/or for removal of
the guardian.

(xii) In case, the guardian wishes
to move the person lying in comatose state to
another state or even to another country for
326 INDIAN LAW REPORTS ALLAHABAD SERIES
the purposes of securing better medical
treatment for the person lying in comatose
state, he/she would approach the court for
necessary permission before undertaking
such an exercise."

29. That it goes without saying that the
aforesaid guidelines are general in nature and
the Court would always have the power to relax
the same or add certain other conditions as may
be required in each case.

Conclusion:

30. Having gone through the medical
examination report, (annexed with the short
counter affidavit) prepared by the Medical
Board constituted in pursuance of the
directions given by this Court and the
averments made in the writ petition, we are
satisfied that SKM, husband of the
petitioner No. 1, who was the sole bread
earner in the family, is lying in a comatose
state. Perusal of the record further indicates
that
SKM,
has
properties
(immovable/movable, investments, bank
accounts, deposits etc.) in his name, but the
petitioners are not in a position to deal with
the same due to legal hurdles. Further the
Petitioners have incurred huge expenses for
his treatment which has already lasted for
more than a year and a half, for which they
have even resorted to borrowing money
from relatives and friends.