Husband & Wife Equal Partners In A Marriage, Wife Best Suited To Be The Guardian Of A Husband In A Comatose Or Vegetative State: Bombay HC [Read Order]

The Bombay High Court on Thursday held that in a marriage, husband and wife are equal partners and the wife is best suited to be the guardian of her husband who is lying in a vegetative state. Court directed all concerned authorities to accept her status as a guardian after she cited mounting medical expenses to gain access to her husband's finances but the bank refused.

Division bench of Justice Ujjal Bhuyan and Justice Milind Jadhav were hearing a writ petition filed by one Rajni Sharma, whose husband Hariom Sharma is in a state of comatose, a vegetative state, with no signs or prospect of revival. Hariom Sharma suffered cardiac arrest while jogging in November 2018 and has been in the said state ever since.

Besides the husband, the petitioner has two sons, one of whom is a minor and a dependent mother-in-law to look after. With mounting medical bills and other household expenses and having hardly any income of her own, petitioner in a state of helplessness moved the High Court.

Hariom Sharma is a businessman having multiple businesses. He is the Director of several companies like M/s. Solus Software and Systems LLP, M/s. Solus Security Systems Private Limited and M/s. PSIM Community LLP. That apart, he is a partner in the firm M/s. Ampa Enterprises.

On November 15,2018, Hariom Sharma suffered a cardiac arrest and he was immediately admitted in Kokilaben Dhirubhai Ambani Hospital and Medical Research Institute. He was treated in the said hospital for a period of almost three months. Despite extensive treatment including surgeries by a panel of doctors, there was very little improvement though his health condition stabilized, he remained in a vegetative state. He was discharged from the hospital on February 6, 2019 although he continued to remain in a paralytic vegetative state. As per medical advice, he was required to take all necessary care under trained paramedic personnel 24x7 along with physiotherapy and speech therapy.

Despite all the care and monitoring, Hariom Sharma continues to remain in a vegetative state till date. According to the petitioner, the medical expense incurred in looking after her husband is quite substantial. She had to create a well-equipped air conditioned nursing room having amenities like a recliner bed, air mattress and life-saving support system, etc. Besides, a full time nurse and part time physio and speech therapists have been appointed to continue with the treatment of her husband. Moreover, in addition to her husband, the petitioner also has to look after her mother-in-law who is having her own age related ailments; besides looking after her children who are all dependents. That apart, there are other household expenses for herself and for the family combined.

Thus, when the petitioner approached the concerned banks to allow her to put her signature in place of her husband, the request was turned down and petitioner was advised to approach the competent court to get herself appointed as her husband's guardian.

Advocate Kenny Thakkar appeared on behalf of the petitioner and submitted that being the patient's wife, the petitioner is in the best position to act as his guardian considering his comatose condition and vegetative state for the last more than two years with no sign or prospect of revival. He relied on several judgments of High Courts including Bombay High Court's judgment in Philomena Leo Lobo Vs Union Of India & Ors and submitted that the present case is very similar to the said case.

Whereas, both Union and the State while not contesting the factual narrative of the petitioner, have questioned maintainability of the writ petition contending that the relief sought for is basically a private relief; invoking public law remedy may not be justified.

After hearing submissions of all parties, Court referred to Supreme Court's decision in Aruna Ramchandra Shanbaug Vs. Union of India and observed-

"When we say that a person is in coma or in a comatose condition or in a vegetative state, it cannot be construed that such a person is a 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 guardian. As such, it is quite evident that the relevant statutes relating to appointment of guardian would not be applicable to persons lying in a comatose condition or in a vegetative state. Infact, there is consensus at the Bar that at present there is no legislation in India relating to appointment of guardians to patients lying in comatose or vegetative state."

Moreover, the bench noted-

"According to Hindu vedic philosophy, marriage is a sanskar or a sacrament. What is essentially contemplated is a union of two souls. The eternal being is composed of two halves i.e., the man and the woman. Both the halves are equal and one-half is incomplete without the other. As long as the wife survives, one half of the husband survives.

In such circumstances, there can be no manner of doubt 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."

Finally, to ensure that guardianship is being used for the benefit of the person who is in a vegetative state, Court directed the Member Secretary of Maharashtra State Legal Services Authority to monitor functioning of the petitioner as guardian of Hariom Sharma every three months and submit report to the Maharashtra State Legal Services Authority which shall be compiled for a period of two years.

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