Allahabad HC Grants Wife Guardianship Of Husband In Comatose Condition; Calls Upon Central Government To Enact A Law [Read Judgment]

In a significant order passed on Monday, the Allahabad High Court allowed the plea of a wife, to be appointed as the guardian of her husband lying in vegetative state. The bench comprised by Justices Shashi Kant Gupta and Saurabh Shyam Shamshery observed that even though there is no law for appointment of guardians for a person in a comatose state, the court was obliged in its capacity as a 'parens patriae' to do justice to the Petitioner. "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," the court said. The court also called upon the Central Government to pass an appropriate legislation on this subject. Background The Petitioner had approached the High Court seeking to be appointed 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. It was submitted that the Petitioner's husband had been in comatose state for past one and a half years and the Doctors' had advised that he would remain so until his eventual demise. The Petitioner had thus sought to be appointed as her husband's guardian to be able to cover the expenses of his treatment and nursing care, and that of her two daughters' marriage. However, it was also admitted that unlike legislations for appointment of guardian for minors and persons with other disabilities or mental illnesses, there is now law to appoint a guardian for a person in coma state. In fact, such persons do not even fall within the purview of 'person with multiple disabilities' under the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation, and Multiple Disabilities Act, 1999. It was submitted that even the RBI guidelines, advising the Banks to accept Guardianship Certificates issued under National Trust Act, 1999 are not applicable in respect of a person lying in a comatose state. Findings The High Court observed that it could, in exercise of its powers under Article 226 of the Constitution of India, invoke the doctrine of Parens patriae and appoint the Petitioner as a Guardian of her husband. "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 observed. It relied on the decision of the Kerala High Court in the case of Shobha Gopalakrishnan & Ors. v. State of Kerala & Ors., (2019) SCC Online Ker 739, whereby a division bench appointed the legal heir of the victim as a guardian, recognizing the same to be a "SOS Call" of the victim's "sinking family". Reliance was also placed on the judgment of the Delhi High Court in the case of Vandana Tyagi v. Government of National Capital Territory of Delhi & Ors., (2020) SCC Online Del 32, which followed the suit. The division bench thus allowed the writ petition while clarifying that the Petitioner shall not sell, alienate encumber any of the immovable properties of her husband, except with the express permission of the Registrar General of this Court. Guidelines for appointment of guardian qua a person lying in a comatose The High Court observed that the guidelines framed by the Kerala High Court in the case of Shobha Gopalakrishnan (supra) with regard to appointment of guardian qua a person lying in a comatose state are "formidable". The bench was of the opinion that the same 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. The High Court thus fixed the following norms/ guidelines as a temporary measure to be followed in the state, till an appropriate enactment is legislated for appointment of guardians vis-a-vis individuals 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...

Allahabad HC Grants Wife Guardianship Of Husband In Comatose Condition; Calls Upon Central Government To Enact A Law [Read Judgment]

Akshita Saxena

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