It is most refreshing, most pleasing and most heartening to see that in a commendable, courageous and conscious decision, the Allahabad High Court in Uma Mittal & Ors. v. Union of India & Ors in Case – Writ – C No. – 40096 of 2019 delivered just recently on June 15, 2020 has very rightly and remarkably allowed the plea of a wife to be appointed as the guardian of her husband lying in vegetative state even though it conceded that there is no law for appointment of guardians for a person in a comatose state. It also added that the court was obliged in its capacity as a ‘parens patriae’ to do justice to the petitioner. No wonder that this is being very rightly hailed in many newspapers and media! Why on earth should a woman who is a man’s wife be denied this?
To start with, we see that in this latest, landmark and extremely laudable judgment authored by Justice Shashi Kant Gupta for himself and Justice Saurabh Shyam Shamshery, the ball is set rolling in para 1 wherein it is observed that, “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.”
As it turned out, para 11 then reveals that, “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 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).”
While dwelling on the Medical Examination Report, it is then pointed out in para 17 that, “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.”
To put things in perspective, it is then envisaged in para 18 which is briefly stated here that, “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 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.”
Be it noted, it is then stipulated in para 25 that, “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.”
More significantly, the Bench then minces no words to state in para 26 that, “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 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 Constitution 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.”
Equally significant if not more is what is then stated in para 27 that, “It may be noted that the Division Bench of Kerala High Court in the case of Shobha Gopalkrishnan (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.”
Most significantly, it is then laid down in para 28 that, “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-à-vis an individual who is lying in comatose state:-
(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 then 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 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 persons 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.
(xiii) In case, the guardian wishes to move the person lying in comatose state to another state or even to another country for 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.”
For the sake of brevity, the essence of what is mentioned in para 33 is that the Bench directs that while accepting the medical report of SKM submitted by the Medical Board, we hereby appoint the Petitioner No. 1, Uma Mittal, wife of SKM as the guardian of her husband SKM, who is in a comatose condition, vested with the property of her husband SKM to do all acts, deeds and things for the proper care, welfare and benefit of the SKM and his children and with power to do all acts, deeds and things with respect to assets and properties of the SKM.
What’s more, the Bench then notes in para 36 that, “It is further directed that the Petitioner No. 1 would file a report with the Registrar General of this Court every six months, detailing the transactions in respect of the assets of SKM.”
Furthermore, the Bench then observes in para 37 that, “Before parting, we wish to recommend to the Central Government to consider enacting an appropriate legislation pertaining to appointment of guardians qua persons lying in a comatose state, as no remedy is provided in any statute to persons in comatose/vegetative state, (as already discussed in detail in earlier part of this judgment), unlike legislations for appointment of guardians for minors and persons with other disabilities, including like mental retardation etc.”
Finally, it is then held in para 40 that, “Registry is required to forward a copy of this judgment to the Secretary, Law, Ministry of Law and Justice, Government of India, for information and appropriate steps.”
To sum up, this is a very well written, well reasoned and well worded judgment which goes beyond the drafted law for which it has rightly received huge applause from all quarters. The two Judge Bench of Allahabad High Court very rightly empowers the wife to be the guardian of her husband lying in vegetative state by allowing her plea. It also very rightly calls upon the Central Government to pass an appropriate legislation on this subject. Needless to add, Centre must now act promptly on this accordingly!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.