Bombay High Court: A Division Bench of Ujjal Bhuyan and Milind N. Jadhav, JJ., while addressing an issue with regard to the appointment of a guardian for a person who is lying in the state of coma, held that,
“…the wife can be said to be best suited to be the guardian of her husband who is under a state of incapacity or disability on account of being in a comatose condition or vegetative state.”
State of Comatose
Petitioner’s husband is in a state of comatose with no signs or prospects of revival. Petitioner has two sons one of whom is a minor and a dependent mother-in-law to look after.
With the mounting medical bill and other household expenses, petitioner in a state of helplessness has approached this Court invoking its writ jurisdiction for relief.
Petitioners Counsel is Kenny Thakkar, for respondent 1 the counsel is A.D. Yadav, S.S. Panchpor, Assistant Government Pleader for respondent 2.
Since the petitioner’s husband is in a comatose condition he is unable to use his intellect, converse and sign various documents. Accordingly, the petitioner is required to act as his guardian so as to safeguard the business and other interests of the husband and also to look after her family.
Banks
Banks refused the petitioner to put her signature in place of her husband, rather the petitioner was advised to approach the competent court to get herself appointed as the guardian.
Next Friend/Guardian
Petitioner’s counsel submitted that by virtue of being the wife, the petitioner is in the best position to act as his husband who is in a comatose state for the last two years with no signs of revival as his guardian.
On a query by the Court on what basis she was invoking writ jurisdiction of the Court, petitioners counsel submits that there is no statutory provision relating to the appointment of a 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.
Analysis and Decision
Bench cited the Supreme Court decision in Aruna Ramchandra Shanbaug v. Union of India, (2011) 4 SCC 454 and stated that patients in a coma have a complete failure or the arousal system with no spontaneous eye-opening and are unable to be awakened by application of vigorous sensory stimulation.
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 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 a guardian.
- The Guardian and Wards Act, 1980;
- Mental Health Act, 1987 (repealed);
- The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999;
- Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (repealed);
- Mental Health Care Act, 2017; and
- Rights of Persons with Disabilities Act, 2016
“…at present, there is no legislation in India relating to the appointment of guardians to patients lying in comatose or vegetative state.”
Court observed that conceptually the wife can be said to be best suited to be the guardian of her husband who is under a state of incapacity or disability on account of being in a comatose condition or vegetative state.
In regard to the present matter bench stated that in today’s world a stray case of foul play cannot be ruled out, it will be wrong on the Court’s part to take such a jaundiced view of any claim made by a wife to the guardianship of her husband who is lying in a vegetative state.
Further reverting back to the Supreme Court decision in Aruna Ramchandra Shanbaug v. Union of India, (2011) 4 SCC 454, Court had observed that the idea behind the doctrine of “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.
“When the High Court exercises jurisdiction under Article 226 of the Constitution of India, it does so to further the cause of justice. To provide justice or discharge ex debito justiciae is the raison d’ etre of the courts. The Latin expression ex debito justitiae literally means a debt of justice; on account of justice; a claim, the refusal of which would involve an injustice, and therefore, one which justice owes it to the claimant to recognize and allow.”
Hence, Court in view of the facts and circumstances of the cases held that it will be reasonable to grant relief to the petitioner. However, it is also essential that there should be some kind of monitoring of the functioning of the petitioner as guardian albeit for a limited duration to ensure that guardianship is being used for the benefit of the person who is in a vegetative state.
Therefore, Member Secretary of Maharashtra State Legal Services Authority either through officials of the said authority or through a legal aid counsel or through a paralegal volunteer shall monitor the functioning of the petitioner as guardian.
In view of the above, petition was disposed of. [Rajni Hariom Sharma v. Union of India, 2020 SCC OnLine Bom 880, decided on 27-08-2020]