[CR]
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
WEDNESDAY,THE 20TH DAY OF FEBRUARY 2019 / 1ST PHALGUNA, 1940
WP(C).No. 37278 of 2018
PETITIONERS:
1 SHOBHA GOPALAKRISHNAN,
AGED 50 YEARS
W/O T. GOPALAKRISHNAN,
THAMARASSERY HOUSE,
NOW RESIDING AT FLAT NO. 8 A,
KPG GRAND CASTLE,
VTJ ENCLAVE ROAD, MARADU P.O.,
ERNAKULAM – 682 304
2 NAVANEETH KRISHNAN,
AGED 1 YEARS
S/O T. GOPALAKRISHNAN, THAMARASSERY HOUSE, NOW
RESIDING AT FLAT NO. 8A, KPG GRAND CASTLE, VTJ
ENCLAVE ROAD, MARADU P.O, ERNAKULAM .
682304
BY ADVS.
SRI.G.SHRIKUMAR (SR.)
SRI.ANESH PAUL
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY,
HEALTH AND FAMILY WELFARE DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM – 695 001.
2
2 THE DISTRICT COLLECTOR,
DISTRICT COLLECTORATE, FIRST FLOOR, CIVIL STATION,
KAKKANAD, ERNAKULAM 682030
3 THE TAHSILDAR,
KANAYANNUR TALUK, PARK AVENUE, NEAR SUBHASH PARK,
MARINE DRIVE, COCHIN
ADDL.R4
UNION OF INDIA
REPRESENTED BY THE SECRETARY, MINISTRY OF HEALTH
AND FAMILY WELFARE DEPARTMENT, NEW DELHI-100001.
(ADDL.R4 IS IMPLEADED AS PER ORDER DATED 05/12/2018
IN IA.NO.01/2018)
ADDL.R5
THE SUPERINTENDENT OF THE GENERAL HOSPITAL
ERNAKULAM. (ADDL.R5 IS SUO MOTU IMPLEADED VIDE
ORDER DATED 05/12/2018)
ADDL.R6
THE MANAGER
UNION BANK OF INDIA, DOOR NO.29/2826A, ADITYA
GANDHI SQUARE, POONITHURA, ERNAKULAM-682317.
ADDL.R7
THE MANAGER
FEDERAL BANK LTD, GOWRI ARCADE, PETTA-GANDHI SQUARE
ROAD, POONITHURA, ERNAKULAM-682038.
(ADDL.R6 AND R7 ARE IMPLEADED AS PER ORDER DATED
18/12/2018 IN IA.NO.05/2018)
BY SPL.GOVERNMENT PLEADER SHRI N. MANOJ KUMAR
SRI.A.S.P.KURUP, SC, UBI
SRI.JAISHANKAR V.NAIR, CGC
SRI.SADCHITH.P.KURUP
BY SHRI V.RAMKUMAR NAMBIAR, AMICUS CURIAE
BY SMT. S. SMITHA NIZAR, AMICUS CURIAE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
20.02.2019, ALONG WITH WP(C).37062/2018, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
WEDNESDAY,THE 20TH DAY OF FEBRUARY 2019 / 1ST PHALGUNA, 1940
WP(C).No. 37062 of 2018
PETITIONERS:
1 SHERLY C.A.
AGED 57 YEARS
W/O. T.V.VARKEY, THAIPARAMBIL HOUSE, IRUMPANAM,
THIRUVANKULAM VILLAGE, IRUMPANAM P.O,
ERNAKULAM.
2 VARSHA VARKEY
AGED 31 YEARS
D/O.T.V.VARKEY, THAIPARAMBIL HOUSE, IRUMPANAM,
THIRUVANKULAM VILLAGE, CHERAPURATH LANE,
IRUMPANAM P.O., ERNAKULAM.
3 THUSHARA VARKEY
AGED 26 YEARS
D/O.T.V.VAREY, THAIPARAMBIL HOUSE, IRUMPANAM,
THIRUVANKULAM VILLAGE, CHERAPURATH LANE,
IRUMPANAM P.O., ERNAKULAM.
BY ADVS.
SRI.SUNIL NAIR PALAKKAT
SRI.K.N.ABHILASH
4
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, DEPARTMENT OF
HEALTH AND FAMILY WELFARE, SECRETARIAT,
THIRUVANANTHAPURAM 695001.
2 THE DISTRICT COLLECTOR
COLLECTORATE, KAKKANAD, ERNAKULAM, PIN – 682
030.
3 THE TAHASILDAR
TALUK OFFICE, KANAYANNUR TALUK, ERNAKULAM
DISTRICT, PIN – 682 011.
4 ADDL.R4
UNION OF INDIA
REPRESENTED BY SECRETARY, MINISTRY OF HEALTH
AND FAMILY WELFARE, NEW DELHI-110001.
5 ADDL.R5
SUPERINTENDENT
GENERAL HOSPITAL, ERNAKULAM-682011.
(ADDL.R4 AND R5 IMPLEADED AS PER ORDER DATED
18/12/2018 IN IA.NO.01/2018)
BY SRI.JAGADEESH LAKSHMAN, CGC
BY SPL.GOVT. PLEADER SRI.N.MANOJ KUMAR
BY SHRI V. RAMKUMAR NAMBIAR, AMICUS CURIAE
BY SMT. S. SMITHA NIZAR, AMICUS CURIAE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
20.02.2019, ALONG WITH WP(C).37278/2018, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
5
[CR]
JUDGMENT
P.R. Ramachandra Menon, J.
This is an “SOS call” (Save Our Souls call) from
two sinking families of the dear ones of a person lying
in ‘comatose state’, finding it extremely difficult to
see the ways and means in procuring funds to provide
adequate treatment and life support to the victim, who
was the sole bread winner of the family, besides the
need for their daily sustenance.
2. The victim, lying in a comatose state, is
having some properties [immovable/movable] and small
bank deposits, but the petitioners are not in a
position to deal with the same because of the ‘legal
hurdles’. They have already incurred huge expenses,
as borrowed from different corners, in connection with
the treatment. Having exhausted all their financial
resources, they are in a state of despair, isolation
and abandonment; besides undergoing unending agony,
stress and depression on account of the plight of their
dear one lying in a ‘permanent vegetative state’ and
6
‘coma’. The petitioners are constrained to approach
this court for appointing the named petitioner/wife of
the patient in comatose state as ‘Guardian’, contending
that no legislation in India does provide for
appointment of Guardian for a person in comatose state,
unlike legislations for appointment of ‘Guardian for
minors’ and persons with other disabilities like mental
retardation etc.
3. The petitioners in W.P(C)No.37278 of 2018 are
the wife and son of Shri T. Gopalakrishnan, who
suffered an irreversible brain damage on account of
cardiac arrest and was lying in a comatose state from
28.04.2018- the ill fated day on which
celebration/reception in connection with the marriage
of the second petitioner/son was going on. The victim
was immediately taken to the Medical Trust Hospital,
Ernakulam, where he was treated for more than one month
and was discharged, as the treatment did not show any
signs of meaningful neurological recovery. As per
Ext.P1 Discharge Certificate dated 01.06.2018, it was
certified that, though the patient was hemodynamically
stable (with enough pressure in the circulatory system
7
to keep the blood flowing), since he was remaining in
‘comatose state’, prolonged multidisciplinary hospice
care at home was necessary. Thereafter, the patient was
admitted in P.S. Mission Hospital, Maradu, which is
near to the place of residence of the petitioners. The
condition of the patient, at the time of admission on
02.06.2018 and at the time of discharge on 05.10.2018
(after four months’ treatment)was in ‘comatose state’.
As per Ext.P2 discharge certificate issued from
P.S.Mission Hospital, it was observed that continued
supportive treatments had to be followed up all during
his life time. The case of the petitioners is that the
patient was the sole bread winner of the family,
engaged in his own business; the petitioners have so
far spent more than Rs.20 lakhs towards medical
expenses and upkeep of the patient; that the said
amount was mobilised with much difficulty on the help
of relatives and friends; that both the petitioners are
unemployed and are running out of financial resources
even to meet their basic needs, but for the minimal
rentals they receive. It was in the said circumstance,
they seek to appoint the first petitioner as the
8
‘Guardian’ of her husband (victim/patient) and also
for operating his bank accounts and to deal with his
properties on war footing; pointing out that there is
no legislation for appointment of a ‘Guardian’ in
respect of persons lying in ‘comatose state’ and hence
immediate interference is necessary.
4. According to the petitioners, neither the
Guardian and Wards Act,1890, the National Trust for the
Welfare of persons with Autism, Cerebral Palsy, Mental
Retardation and Multiple Disabilities Act, 1999
(hereinafter referred to as National Trust Act), the
Mental Health Act, 1987, the subsequent Mental
Healthcare Act, 2017; nor the Rights of persons with
Disabilities Act, 2016 does come to the rescue of the
petitioners, in so far as appointment of ‘Guardian to a
person lying in a comatose state’ is concerned.
5. When the matter came up for consideration,
before a learned Single Judge, the learned Government
Pleader pointed out that another learned Judge of this
Court had already held in W.P(C)21082 of 2017 that the
Local Level Committee (LLC) constituted under Section
13 of the National Trust Act was having power to deal
9
with the situation. Correctness of the said observation
was seriously disputed by the learned Senior counsel
for the petitioners. In the said circumstance, the
learned Judge thought it fit to refer the matter for
consideration by a Division Bench. It is accordingly
that the said matter has been listed before this Court.
6. Meanwhile, almost with similar prayer, the
petitioners in W.P(C)37062 of 2018 had also approached
this Court for invoking the power under Article 226 of
the Constitution of India, to declare the first
petitioner therein (wife of the patient by name T.V.
Varkey) as the guardian of her husband lying in
comatose state. The other two petitioners are married
daughters. The case projected by them is that the
patient/victim met with an accident at home, resulting
in severe head injury on 24.11.2017; that he was a
retired employee from the FACT Ltd and was lying in a
comatose state ever since then. The petitioners
pointed out that the marriage of the third petitioner
became the responsibility of the first petitioner (as
her husband was lying in comatose state) and that the
first petitioner had to struggle much, incurring huge
10
expenses for conducting the marriage and also to meet
the medical/family needs. It is pointed out that the
patient in comatose state is having some immovable
property as a co-owner and since the other co-owners
have consented to sell it, seeing the petitioners’
plight and since there is no remedy under common law or
under any of the statutes enabling the first petitioner
to manage the property of her husband lying in comatose
state, interference of this Court under Article 226 of
the Constitution of India is necessary. In both the
cases, decision rendered by a learned Judge of the
Madras High Court in Sairabanu Muhammd Rafi vs. State
of Tamil Nadu (in W.P.No.28435 of 2015) and by a
Division bench of the Bombay High Court in Philomena
Leo Lobo vs. Union of India and others (W.P.(L)No.28269
of 2017) have been relied on to contend that the power
under Article 226 can be invoked to grant the relief.
In the said circumstance, W.P(C)No.37062 of 2018 also
came to be tagged along with the former case already
listed before the Division Bench.
7. W.P(C)No.37278 of 2018 is treated as the lead
11
case. In the course of further proceedings, the Union
of India represented by its Secretary, Ministry of
Health and Family Welfare Department, New Delhi, the
Superintendent of General Hospital, Ernakulam, the
Manager, Union Bank of India, Poonithura and the
Manager, Federal Bank,Poonithura (where the patient was
having some deposits/accounts) were caused to be
impleaded as the additional respondents 4 to 7 in W.P.
(C)No.37278 OF 2018. Similarly, the Union of India
represented by its Secretary, Ministry of Health and
Family Welfare Department, New Delhi and
Superintendent, General Hospital, Ernakulam were caused
to be impleaded as the additional respondents 4 and 5
in W.P(C)No.37062 of 2018 as well.
8. Considering the general importance of the issue
involved, we found it appropriate to appoint Mr. V.
Ramkumar Nambiar as ‘Amicus Curiae’ to assist the
Court, as per order dated 10.12.2018. As per the order
passed on 07.12.2018 in I.A.No.2 of 2018 in W.P.
(C)37278 of 2018, the Superintendent of the General
Hospital, Ernakulam (Addl.5th respondent) was directed
to constitute a Medical Board consisting of a Neuro
12
Specialist, Cardiac Specialist and such other faculties
as to be decided by the Superintendent, to deal with
the situation and to cause the patient lying in
comatose state to be examined and to file a report.
The petitioners were also required to furnish the
particulars of the amounts, if any, lying in deposit
with the bankers mentioned in their additional
affidavit dated 04.12.2018. Subsequently, as per
order dated 10.12.2018 in W.P.(C)37278 of 2018 (whereby
the Amicus Curiae was appointed), this Court found it
appropriate to call for a report from the 2nd
respondent/District Collector as well, as to the
condition of the patient, making it clear that, it
would be open for the second respondent to depute the
Dy.Collector or the third respondent/Tahsildar to visit
the patient at his residence and collect all the
factual particulars. Similar orders were passed in the
connected writ petition as well, though on different
dates.
9. Pursuant to the above orders, the Medical Board
constituted by the Addl.5th respondent/ Superintendent,
General Hospital, Ernakulam (which is an NABH
13
accredited hospital)examined the patient/victim.
Medical certificate dated 18.12.2018 issued by the
Medical Board in respect of the patient/victim by name
Gopalakrishnan involved in W.P.(C)37278 of 2018 reads
as follows:
Medical Certificate
“Certified that we the members of the
Medical Board, General Hospital;
Ernakulam, after referring the medical
documents and conducting clinical
examination of Sri Gopalakrishnan, 58
years on 11.12.2018 and he is found to
have Hypoxic Ischemic Encephalopathy,
Resuscitated Cardiac Arrest following
Coronary Artery Disease-Acute Anterior
Wall ST Elevation Myocardial Infarction
on 28.04.2018. He continues to be in
persistent vegetative state with stable
hemodynamics and no clinical evidence
of heart failure”
10. A separate report has been filed by the third
respondent Tahsildar after visiting the patient in the
said case, pursuant to the direction given on
10.12.2018, which fully endorses the contentions raised
14
by the petitioners as to the plight of the patient
lying in ‘comatose state’ and also as to the
frustrating pecuniary condition of the petitioners.
The report also points out that the parents of the
patient are no more; that the petitioners are not
earning members; that the petitioners have already
spent nearly Rs.20 lakhs, as borrowed from different
corners; that they are finding it extremely difficult
to mobilise further funds for the day-to-day expenses
for treatment and upkeep of the patient and as to the
dire necessity to deal with the immovable properties
and for operating the Bank accounts of the patient to
diffuse the volatile situation. Almost similar medical
report by the Medical Board, who examined the patient
and report of the Tahsildar after visiting the patient
at his residence are produced in the other case, W.P.
(C)37062 of 2018 as well.
11. During the course of hearing, the necessity
to frame some ‘Guidelines’, if at all interference was
to be made by this Court, invoking the power under
Article 226 was pointed out by this Court and hence the
parties were required to suggest appropriate
15
guidelines/norms in this regard. Pursuant to this,
the learned counsel for the petitioners in W.P.
(C)37278 of 2018, Shri V. Ramkumar Nambiar, Amicus
Curiae appointed by this Court and Mr. N. Manoj Kumar,
the learned Special Government Pleader have filed
separate suggestions as to the norms/guidelines to be
issued. In the course of hearing held on 16.01.2019,
it was brought to the notice of this Court that the
patient by name Gopalakrishnan involved in W.P.(C)37278
of 2018 and lying in comatose state took his last
breath on 13.01.2019 and the learned Sr. counsel sought
for permission to address the Court on the various
legal issues, as it is a matter of general importance.
In the said circumstance, though the petitioners in
W.P(C)No.37278 of 2018, being the sole legal heirs, may
not require any declaration as ‘Guardian’ to deal with
the properties of the deceased, we found it appropriate
to treat the said writ petition as a ‘Public Interest
Litigation’ and hear the learned Sr. Counsel as to the
scope, effect and applicability of the relevant
provisions under the various enactments, touching the
field/cause of action. This was more so, since the
16
‘Reference’ ordered by the learned Single Judge (as per
the order dated 23.11.2018) as to the legal question
raised requires to be answered by this Court.
12. Incidentally, we also noted that there was
some difference in the terminology used with regard to
the eligibility/qualification of the Members to be
inducted as Members of the Mental Health Review Board
under Section 74(1)(d) of the Mental Health Care Act,
2017, on comparison with Section 34(1)(n) (composition
of the Central Authority) and Section 46(1)(n)
(composition of the State Authority), in so far as,
under Section 74(1)(d) of the Mental Healthcare Act,
2017, two members shall be persons with mental illness
or care-givers or persons representing organisations of
persons with mental illness or care-givers or non-
governmental organisations working in the field of
mental health; whereas under the other two provisions,
two persons/members are those who represent care-givers
or persons with mental illness or organisations
representing care-givers to be nominated by the Central
Government. This Court was of the view that it
required to be ascertained whether the difference in
17
terminology was pursuant to a conscious act/decision or
whether there was any inadvertent omission. Taking
note of the fact that a lawyer of this Court viz. Dr.
Smitha Nizar (Parakkal)Ph.D was having sufficient
exposure in the field, particularly in connection with
the formative stage of the legislation by virtue of her
association while conducting Research at NALSAR
(National academy of Legal Studies and Research),
Hyderabad, we appointed her as well, to assist the
Court as an ‘Amicus Curiae’. Taking note of the
relevant aspects, Dr Smitha Nizar, Ph.D has filed a
report dated 18.01.2019 before this Court.
13. We heard Shri G. Sreekumar, the learned
Sr.Counsel and Sri Sunil Nair Palakat, the learned
counsel for the petitioners in the above two writ
petitions, Mr. N. Manoj Kumar, the learned Special
Government Pleader appearing for the State and other
governmental authorities and Mr. V. Ramkumar Nambiar
and Dr. Smitha Nizar, the two Amicus Curiae appointed
by this Court, at length.
14. The primary question to be considered is
whether there is any enabling provision for appointment
18
of a Guardian to a patient lying in ‘comatose state’
under any statute in India. Incidentally, it has to be
answered whether the finding of the learned Single
Judge in WP(C)37278 of 2018 holding that it will come
within the purview of Local Level Committee(LLC for
short) constituted under Section 13 of the National
Trust Act, in turn giving a direction to have the same
considered and finalised by the said Body, is correct
or sustainable. If there is no provision, what are
the parameters to be mentioned as ‘guidelines’ while
dealing with such matters by this Court till
appropriate legislative provisions are incorporated in
the relevant statutes by the law makers; form the last
question.
15. As mentioned already, there is no dispute as
to the plight of the patients/victims concerned, who
are living in ‘comatose state’ as prisoners in their
own body, unable to respond to any stimuli and the
world around. The entire family is effected because of
the agony, stress and depression finding their dearest
one in ‘permanent vegetative state and coma’, leaving
themselves in an utter state of despair, isolation and
19
abandonment. They have borrowed amounts from different
corners and find no other alternative source to tap,
having exhausted all their financial resources. Bleak
future and helplessness in meeting the huge expenses
for medical care and treatment of their dear one,
besides the difficulty in meeting their day-to-day
needs, being jobless pester them much, even questioning
their existence. They are only ordinary individuals
who cannot be expected to be Arthur Ashe, the evergreen
Tennis legend, who reportedly did not ask the God,
“why to me” when he was made known that he was
inflicted with AIDS (from blood transfusion during the
Heart Bypass surgery). Their emotional breakdown
because of the anxiety, depression, uncertainty to
future and as to the condition of the patient cannot be
treated/resolved, particularly when the patient was the
sole bread winner of the family, nor is there any
welfare provision in India (but for some personal
health insurance coverage , if any) as it prevails in
other welfare Countries, where there is an alternative
mechanism, whereby the said countries would support
the cause of the citizen through adequate insurance or
20
otherwise. In the instant case, despite the fact that
the patient/victim is having some properties in his
name, the petitioners are not in a position to deal
with the same and to raise funds for his treatment,
upkeep and also for their living, because of the legal
hurdles and for want of any clear legislative provision
in this regard.
16. In the above background, it will be worthwhile
to have a survey of the various legislations in India,
to see whether any of such statutes does contain a
provision for appointment of ‘Guardian to patients
lying in comatose state’. The only legislations
governing the field, connected with appointment of
Guardian for minors or persons with mental illness or
physical disability are:
1. The Guardian and Wards Act, 1890
2. The Mental Health Act, 1987 (repealed)
3. The National Trust Act for the Welfare of
Persons with Autism, Cerebral Palsy, Mental
Retardation and Multiple Disabilities Act,
1999
4. Persons With Disabilities (Equal
Opportunities, protection of Rights and Full
Participation Act, 1995 (repealed)
21
5. The Mental Health Care Act, 2017
6. The Rights of persons with Disabilities Act,
2016.
17. The Guardians and Wards Act, 1890 is an
enactment for appointment of guardian for minors. As it
stands so, the said Act is not applicable for
appointing Guardian to a person lying in comatose
state.
18. The Mental Health Act, 1987 provided for
appointment of guardian for ‘mentally ill’ persons
under Section 52 of the said Act, conferring the power
upon the District Court to pass an order under Section
53 and for appointing a Manager under Section 54 of the
said Act. However, the term “mentally ill person” is
defined under Section 2(l) of the said Act, which reads
as follows:
“(l)”mentally ill person” means a
person who is in need of treatment by
reason of any mental disorder other
than mental retardation”.
19. From the above, it is quite evident that it is
in respect of a person who needs treatment for mental
illness, whereas there is no treatment for a
22
patient/victim lying in ‘comatose state’ and the
condition of the patient is without any response to any
stimuli, because of serious neurological breakdown.
This being the position, the Mental Health Act, 1987 is
also to be ruled out as having no application apart
from the fact that the said statute stands repealed as
per Section 126 of the Mental Health Care Act, 2017.
20. Coming to the Mental Health Care Act, 2017,
there is provision for appointment of a ‘nominated
representative’. In fact, the preamble shows that the
said statute was enacted pursuant to the Convention on
Rights of Persons with Disabilities and its optional
Protocol adopted on 13th December, 2006 at the United
Nations Headquarters in New York, which convention was
signed and ratified by the India on 01.10.2007 with
an intent to align and harmonise the existing law with
the said Convention. It was accordingly, that the
statute was enacted to provide for Mental Health Care
and Services for persons with mental illness and to
protect, promote and fulfill the rights of such persons
during delivery of mental health care and services and
for matters connected therewith or incidental thereto.
23
21. As pointed out by Dr.Smitha Nizar (Amicus
curiae), earlier, the persons with disabilities were
secluded and denied the right to social participation,
which suffered a change by the end of the 20 th century,
though no much efforts were taken to recognize them as
subjects of law and to affirm their rights. The
“rights-based approach” towards persons with
disabilities came to be accorded by the U.N.
Convention on the Rights of Persons with Disabilities,
2006, treating the lives of persons with disabilities
as valuable as that of any other human being. It is
pointed out that the Convention brought a paradigm
shift in its approach and attitude towards disability,
shifting from a model where the persons with
disabilities are treated as “objects of medical
treatment, charity and social protection”, to the
platform where they are recognised as persons with
equal rights and vested right of participation. It was
accordingly, that the Persons with Disabilities (Equal
Opportunities, protection of rights and full
participation)Act, 1995 was repealed and the new Act-
Rights of Persons with Disabilities Act, 2016 (RPWD
24
Act) was enacted. It was simultaneous to the enactment
of the RPWD Act, 2016, that the old Mental Health Act,
1987 came to be repealed giving rise to the Mental
Health Care Act, 2017 in tune with the norms of the
U.N. Convention, whereby a “rights-based protection”
was brought about for mentally ill persons, as
mentioned already.
22. With reference to the query raised by us in
our order dated 16.01.2019, as to the difference in
terminology under Section 74(1)(d) of the Mental Health
Care Act, 2017 and Sections 34(1)(n) and 46(1)(n) of
the said Act, particularly when the Board is stipulated
to be constituted with two members having mental
illness, the learned Amicus Curiae points out that, it
was a conscious decision taken by the law makers, to
provide for ‘participative status’ to persons with
mental illness and to provide a congenial atmosphere,
enabling the persons with mental illness to approach
the Mental Health Review Board for redressal of their
grievance. It is pointed out that the object behind
the creation of Central and State Authorities under
Sections 34 and 46 of the said Act is to empower the
25
said Bodies to regulate the functioning of the ‘Mental
Health Establishments’ in compliance with the statute,
whereas the Mental Health Review Boards are envisaged
to play a critical role in protecting the interests of
‘persons with mental illness’. According to Dr.Smitha
Nizar, the Amicus Curiae, the NALSAR University of Law,
Hyderabad was identified as the Legal Consultant to
enact the Rights of Persons With Disabilities Act, 2016
and that she had opportunity to work as one of the
working group members of the Legal Consultant, who
participated in the Parliamentary meetings to negotiate
on the Mental Healthcare Act, 2017. She asserts
that the intention of the Legislation was to give a
space for persons with mental illness to protect the
rights of persons with mental illness, as an advanced
step towards affirming equal rights for persons with
mental illness. This is more so, since such Members
would definitely ensure their experience, based on
their knowledge, to ensure the “rights based service
delivery”; also providing a conducive environment for
persons with mental illness to come forward, to take
decisions about their treatment, admission, discharge
26
and rehabilitation in mental health establishments; in
turn, assuring transparency in the field. It is
pointed out that the different terminology used under
Section 74(1)(d) is with the above specified intent and
not a mistake. With regard to Guardianship, it is
stated that the RPWD Act provides only provisions for
temporary/limited guardianship, empowering the District
Court or the designated authorities under Section 14 to
grant the relief. It is also pointed out that since
there is absolute need and necessity to frame general
norms/guidelines for such practices, this Court can
invoke jurisdiction under Article 226 of the
Constitution of India.
23. Section 2(s) of the Mental Healthcare Act,
2017 defines the term “mental illness” in the following
terms:
“2(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
27
does not include mental retardation
which is a condition of arrested or
incomplete development of mind of a
person, specially characterised by
subnormality of intelligence.”
It is quite evident from the above definition, that it
is substantial disorder, which does not include mental
retardation. Determination of mental illness is dealt
with under Section 3(1) of the Act. Sub-section (2) of
Section 3 says that no person or authority shall
classify a person as a person with mental illness,
except for purposes directly relating to the treatment
of the mental illness or in other matters as covered by
the Act or any other law for the time being in force.
Sub-section (5) of Section 3 says that determination of
a person’s mental illness shall alone not imply or be
taken to mean that the person “is of unsound mind”,
unless he has been declared as such by a competent
court.
24. The term ‘unsound mind’ and ‘competent court’
are not seen defined under the Act. It is true that a
person having ‘mental illness’ cannot be said as a
28
person of unsound mind; but a person of unsound mind
( if so declared by the competent court) is, of course,
a person having mental illness. Since there was a
general trend to treat all mentally ill persons as
persons of ‘unsound mind’ resulting in social stigma,
proper care has been taken under the new Act (i.e. the
Mental Healthcare Act, 2017) to protect the rights of
persons with mental illness, as mentioned above. In any
view of the matter, the person lying in a ‘comatose
state’, who does not respond to any stimuli and in a
‘permanent vegetative state’ does not appear to be
covered by section 2(s) of the Act. As such, no
appointment of any Guardian to such person is seen
envisaged under The Mental Healthcare Act, 2017 and no
enabling provision in this regard is brought to the
notice of this Court by any of the parties.
25. Coming to The National Trust Act for the
Welfare of Persons with Autism, Cerebral Palsy, Mental
Retardation and Multiple Disabilities Act, 1999, it is
an Act to provide for constitution of a Body at the
national level, for the welfare of persons with Autism,
Cerebral palsy, Mental retardation and Multiple
29
disabilities and for matters connected therewith or
incidental thereto. Obviously, the applicability of
the first three limbs (Autism, Cerebral palsy and
Mental retardation) are not applicable to the case in
hand (for persons lying in comatose state). The point
to be considered is whether they will come within the
purview of the 4th limb, with reference to ‘Multiple
disabilities’. The term ‘multiple disabilities’ is
defined under Section 2(h) of the Act in the following
terms:
“(h) “multiple disabilities’ means
a combination of two or more
disabilities as defined in clause (i)
of Section 2 of the Persons with
Disabilities (Equal opportunities,
Protection of Rights and Full
Participation)Act, 1995 (1 of 1996)”
Section 2(i) of the Persons With Disabilities (Equal
Opportunities, protection of Rights and Full
Participation Act, 1995(PWD Act, 1995) classifies the
disabilities as given below:
“(i) Disability” means
(i) blindness
30
(ii) Low vision
(iii)leprosy cured
(iv) hearing impairment
(v) Loco motor disability
(vi) mental retardation
(vii) Mental illness.
Section 2(j) of the The National Trust Act for the
Welfare of Persons with Autism, Cerebral Palsy, Mental
Retardation and Multiple Disabilities Act, 1999 defines
the term “person with disability”, as extracted below:
“(j) “person with disability”
means a person suffering from any
of the conditions relating to
autism, cerebral palsy, mental
retardation or a combination of
any two or more of such conditions
and includes a person suffering
from severe multiple disability. ”
It is also relevant to make a reference to Section 2(o)
the National Trust Act for the Welfare of Persons with
Autism, Cerebral Palsy, Mental Retardation and Multiple
Disabilities Act, 1999, defining the term “severe
disability” as given below:
“(O) “severe disability”
means disability with eighty per
31
cent, or more of one or more of
multiple disabilities.”
From the above, it is clear that to identify a person
as having multiple disability, existence of two or
more disabilities as defined under Section 2(i) of the
Persons With Disabilities (Equal Opportunities,
protection of Rights and Full Participation Act,
1995(PWD Act, 1995)is essential. 26. From the Scheme
of the Statute, it is quite evident that though the
bench mark disability as defined under Section 2(r)of
the Rights of persons with Disabilities Act, 2016 [RPWD
Act, 2016] is only 40%, the person with disability
shall suffer ‘severe disability’ of 80%, as envisaged
under Section 2(o)[of the The National Trust Act for
the Welfare of Persons with Autism, Cerebral Palsy,
Mental Retardation and Multiple Disabilities Act, 1999]
and there shall be two or more such extent of
disabilities as defined under Section 2(i) of the
Persons With Disabilities (Equal Opportunities,
protection of Rights and Full Participation Act, 1995
[PWD Act, 1995], to constitute ‘multiple disabilities’
32
defined under Section 2(h) of the National Trust Act
for the Welfare of Persons with Autism, Cerebral Palsy,
Mental Retardation and Multiple Disabilities Act, 1999
[The National Trust Act, 1999].
27. Under the Rights of persons with Disabilities
Act, 2016 [RPWD Act, 2016], appointment of guardianship
is governed under Section 14, which job is assigned to
the Local Level Committee constituted under Section 13.
Section 13 of the RPWD Act reads as follows:
“13. Legal Capacity:
(1) The appropriate Government
shall ensure that the persons with
disabilities have right, equally with
others, to own or inherit property,
movable or immovable, control their
financial affairs and have access to
bank loans, mortgages and other forms
of financial credit.
(2) The appropriate Government shall
ensure that the persons withdisabilities enjoy legal capacity on an
equal basis with others in all aspects
of life and have the right to equal
recognition everywhere as any other
person before the law.(3) When a conflict of interest arises
33between a person providing support and
a person with disability in a
particular financial, property or other
economic transaction, then such
supporting person shall abstain from
providing support to the person with
disability in that transaction;Provided that there shall not be a
presumption of conflict of interestjust on the basis that the supporting
person is related to the person with
disability by blood, affinity or
adoption.(4) A person with disability may
alter, modify or dismantle any support
arrangement and seek the support of
another
Provided that such alteration,
modification or dismantling shall be
prospective in nature and shall not
nullify any third party transaction
entered into by the person with
disability with the aforesaid support
arrangement.(5) Any person providing support to
the person with disability shall not
exercise undue influence and shall
respect his or her autonomy, dignity
and privacy."Admittedly, The Persons With Disabilities (Equal
34Opportunities, protection of Rights and Full
Participation) Act, 1995 (PWD Act, 1995) is no more
having been repealed as per Section 102 of the RPWD
Act, whereby a comprehensive new legislation-RPWD, 2016
has been brought into force. The important aspect to
be noted is that, there is no similar provision
defining the term 'disability" as under Section 2(i) of
the PWD Act, 1995, anywhere in the RPWD Act 2016. The
latter enactment, particularly under Section 2(zc)[of
the RPWD Act] defines the term "specified disability",
as specified in the Schedule. The Schedule broadly
classifies the disabilities into '6':
1. Physical disability (comprising of Locomotor
disability, visual impairment, hearing impairment
and speech and language disability)2. Intellectual disability:
3. Mental behaviour
4. Disability caused due to :
(a)chronic neurological conditions such as (i)
Multiple sclerosis" and
(ii) "parkinson's disease"
(b) blood disorder:
(i) "haemophilia"
(ii) "thalassemia"
(iii) "sickle cell disease"
5. Multiple disabilities
356. Any other category as may be notified by the
Central Government.The term "mental behaviour " (third head)reads as
follows:
"3. Mental behaviour.
"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,
but does not include retardation
which is a condition of arrested
or incomplete development of mind
of a person, specially
characterised by subnormality of
intelligence."Similarly, the term "Multiple Disabilities'
(fifth head)reads as follows:
"5. Multiple Disabilities (more
than one of the above specified
disabilities) including deaf
blindness which means a condition in
which a person may have combination of
hearing and visual impairments causing
severe communication, developmental
36and educational problems."
28. The patient in 'comatose state' may not be
having any hearing impairment or visual impairment as
his 'retina' may be alright or the 'cochlea' may be
clear and functioning. The problem is with the
brain/nervous system, which refuse to receive the
stimuli or transmit the response after proper analysis
and co-relation. By virtue of the said problem, though
the patient in 'comatose state' may be seeing an
elephant, he is not in a position to understand whether
it is an elephant or a goat. Even if he is hearing the
barking of a dog, it is not registered and analysed by
the brain and he is not in a position to say whether
it is actually the barking of a dog or chirping of a
Cuckoo.
29. From the above, it is clearly discernible that
a person in 'comatose state' is not one who is having
any two or or more disabilities constituting 'multiple
disabilities' to the requisite extent as mentioned in
the statute, so as to come within the purview of the
National Trust Act for the Welfare of Persons with
37Autism, Cerebral Palsy, Mental Retardation and Multiple
Disabilities Act, 1999 (National Trust Act, 1999). In
other words, so as to bring it within the purview of
the National Trust Act, 1999, to be dealt with by the
Local Level Committee constituted under Section 13, the
other relevant provisions in the said Act like Section
2(h) and such other provisions of the relevant statutes
may require amendment to the requisite extent. As it
stands so, the instant case, ie. the case of a person,
who is in a 'comatose state' does not come within the
purview of the National Trust Act.
30. The verdict passed by the by the learned
Single Judge in W.P.(C)21082 of 2017 makes a reference
only to Section 2(j)of the National Trust Act (defining
the term 'person with disability') and Section 2(o)
(defining the term 'severe disability'). Section 2(h)
dealing with 'multiple disabilities' (which makes a
reference to section 2(i) of the Persons With
Disabilities (Equal Opportunities, protection of Rights
and Full Participation Act, 1995) and the requirement
to satisfy two or more of such disabilities as
mentioned under Section 2(i) of the PWD Act, 1995b was
38unfortunately omitted to be brought to the notice of
the learned Judge. This being the position, the
declaration made therein, that the case will be covered
under the National Trust Act and the patient will be a
person with disability as spoken to in Section 14 of
the National Trust Act, enabling appointment of
Guardian by the 'LLC' constituted under Section 14 of
the National Trust Act cannot have universal
application. This Court does not require any further
declaration in respect of the said verdict as it stands
on a different footing. In the said case, the
petitioner had already approached the 'LLC', who had
not taken any action to extend the relief as it doubted
its powers under the National Trust Act, which made the
petitioner to file the writ petition. The prayer was
to direct the LLC to consider the application and
finalise the same, which relief was granted by the
learned Judge. It was for sustaining that prayer and to
grant the said relief, that an observation was made
that the LLC was having power under the National Trust
Act. Based on the submissions made by the learned Spl.
Government Pleader and the learned Central Government
39Counsel, it was made clear in paragraph 10 of the
judgment that the declaration made would stand
applicable only with respect to the facts of that case
and that individual cases will have to be considered on
the basis of the facts arising in each of them.
Hence, it cannot be treated as a precedent.
31. It will be worthwhile to note the difference
between the cases involving Brain death, Permanent
Vegetative State etc. The subject came up for
consideration before the Apex Court in Aruna
Ramachandra Shanbaug vs. Union of India ([2011]4 scc
454] which is presumably the longest documented case of
person lying in Permanent Vegetative State/Coma in
India, as documented ( about 42 years). The said case
was filed by a journalist seeking to apply
'euthanasia' in the case of the victim, contending that
there was a brain death. This was repelled by the
Supreme Court, in view of the factual data ascertained
and it was much later that she bid farewell to this
world. The observations made by the Supreme Court as
to the different states, such as 'Brain death', 'Coma',
'Vegetative State(VS)', 'Minimally Conscious State' in
40paragraph 12 of the said verdict are quite apposite to
be noted down, as extracted below:
'Brain death
A state of prolonged irreversible cessation
of all brain activity, including lower
brain stem function with the complete
absence of voluntary movements, responses
to stimuli, brain stem reflexes, and
spontaneous respirations.Explanation: This is the most severe form
of brain damage. The patient is
unconscious, completely unresponsive, has
no reflex activity from centres in the
brain, and has no breathing efforts on his
own. However the heart is beating. This
patient can only be maintained alive by
advanced life support (breathing machine or
ventilator, drugs to maintain blood
pressure, etc). These patients can be
legally declared dead ('brain dead') to
allow their organs to be taken for
donation.Aruna Shanbaug is clearly not brain dead.
Coma
Patients in coma have complete failure of
the arousal system with no spontaneous eye
opening and are unable to be awakened by
application of vigorous sensory
stimulation.41
Explanation: These patients are
unconscious. They cannot be awakened even
by application of a painful stimulus. They
have normal heart beat and breathing, and
do not require advanced life support to
preserve life.Aruna Shanbaug is clearly not in Coma
Vegetative State (VS)
The complete absence of behavioral
evidence for self or environmental
awareness. There is preserved capacity
for spontaneous or stimulus-induced
arousal, evidenced by sleep-wake
cycles. i.e., patients are awake, but
have no awareness.Explanation: Patients appear awake.
They have normal heart beat and
breathing, and do not require advanced
life support to preserve life. They
cannot produce a purposeful, co-ordinated, voluntary response in a
sustained manner, although they may
have primitive reflexive responses to
light, sound, touch or pain. They
cannot understand, communicate, speak,
or have emotions. They are unaware of
self and environment and have no
interaction with others. They cannot
voluntarily control passing of urine or
stools. They sleep and awaken. As the
42centres in the brain controlling the
heart and breathing are intact, there
is no threat to life, and patients can
survive for many years with expert
nursing care. The following behaviours
may be seen in the vegetative state:Sleep-wake cycles with eyes
closed, then openPatient breathes on her own
Spontaneous blinking and roving
eye movementsProduce sounds but no words
Brief, unsustained visual pursuit
(following an object with her
eyes)Grimacing to pain, changing facial
expressionsYawning; chewing jaw movements
Swallowing of her own spit
Non-purposeful limb movements;arching of back;
Reflex withdrawal from painful
stimuliBrief movements of head or eyes
towards sound or movement without
apparent localization or fixation;Startles with a loud sound
Almost all of these features consistent
with the diagnosis of permanent
vegetative state were present during
43the medical examination of Aruna
Shanbaug.Minimally Conscious State
Some patients with severe
alteration in consciousness haveneurologic findings that do not meet
criteria for v. These patients
demonstrate some behavioral evidence
of conscious awareness but remain
unable to reproduce this behavior
consistently. This condition is
referred to here as the minimally
conscious state (MCS). MCS is
distinguished from v. by the partial
preservation of conscious awareness."The aforesaid decision in Aruna Shanbaug's case
[2011(4) SCC 454] has been referred to by the Apex
Court recently in 2018(5) SCC 1[Common Cause(a
registered Society) vs. Union of India and another] as
well, while legally recognising and permitting 'passive
euthanasia'.
32. Section 2(s) of the Rights of persons with
Disabilities Act, 2016 [RPWD Act 2016], defines the
term 'person with disability'. This obviously is with
reference to a person who is able to interact with
44others, though not fully, in turn providing for
appointment of a 'Guardian' under Section 14. Unlike
this, in the case of a person lying in 'comatose
state', there is no interaction at all with anybody, as
the victim cannot respond to any stimuli and hence
Section 2(s) is not attracted. The interest of the
patient lying in 'comatose state', particularly with
reference to the urgent need to provide treatment and
support, besides the immediate requirements of the
close relatives to raise funds and to take care of the
situation, cannot be ignored or compromised;hich
justifies invocation of the power of this Court under
Article 226 of the Constitution of India.
33. As mentioned already, the Mental Healthcare
Act 2017 is an advanced step/legislation overruling
the earlier statutes in conformity with the
U.N.Convention of 2006, signed and ratified by the
Government of India in 2007 and brought into effect
thereafter. Chapter V of the said Act deals with
rights of persons with mental illness, by way of such
as:
45
Section 18-Right to access mental health
careSection 19- Right to community living
Section 20-Right to protection from
cruel, inhuman and degrading treatment.Section 21-Right to equality and non-
discriminationSection 22-Right to information
Section 23-Right to confidentiality
Section 24-Restriction on release of
information in respect of mental illnessSection 25-Right to access medical
recordsSection 26-Right to personal contacts and
communicationSection 27-Right to legal aid
Section 28-Right to make complaints about
deficiencies in provision of services .Section 29 - speaks about the duties of
appropriate Government in promotion of
mental health and preventive programmes,Section 30 - is with regard to creation
of awareness about mental health
and illness and reducing stigma
associated with mental illness.34. Considering the role of this Court,
jurisdiction under Article 226 of the Constitution of
India springs up, when no remedy is provided under any
Statute to persons like patients in 'comatose state'.
It is something like 'parens patriae' jurisdiction. A
46reference to the verdict in Nothman vs. Barnet London
Borough Council [1978 (1)WLR 220] (at 228) is also
relevant. In such cases, it is often said, Courts have
to do what the Parliament would have done. A reference
to the verdict in Surjit Singh Karla vs. Union of India
and another [1991(2) SCC 87 explaining the principle of
'causes omissus' is also brought to the notice of this
Court; to the effect that if it is an accidental
omission, court can supply/fill up the gap. This Court
however does not find it appropriate to "re-write" the
provision, as it is within the exclusive domain of the
Parliament. This is more so, when the relevant statutes
like Mental Health Act, 1987 and PWD Act, 1995 came to
be repealed, on introducing the new legislations, such
as the Mental Healthcare Act 2017 and The Rights of
persons with Disabilities Act, 2016 in conformity with
the mandate of U.N.Convention, 2006. This Court does
not say anything whether any amendment is necessary,
also in respect of the National Trust Act for the
Welfare of Persons with Autism, Cerebral Palsy, Mental
Retardation and Multiple Disabilities Act, 1999
(National Trust Act, 1999) with reference to the
47U.N.Convention 2006. It is for the Government to
consider and take appropriate steps in this regard, as
it is never for the Court to encroach into the
forbidden field. This Court would only like to make it
clear that, in so far as the case of a patient lying in
'comatose state' is not covered by any of the statutes,
(as discussed above), for appointment of a Guardian,
the petitioners are justified in approaching this court
seeking to invoke the power under Article 226 of the
Constitution of India. It is declared accordingly.
35. Coming to the incidental aspects; since no
specific provision is available in any Statutes to
deal with the procedure for such appointment of
Guardian to a victim lying in 'comatose state', it is
necessary to stipulate some 'Guidelines', based on the
inputs gathered by this Court from different corners,
as suggested by the learned counsel for the
petitioners, the learned Government Pleader and also by
the learned Amicus Curiae, till the field is taken over
by proper legislation in this regard. This Court finds
it appropriate to fix the following norms/guidelines as
a temporary measure:
48
i) petitioner/s seeking for appointment of
Guardian to a person lying in comatose state
shall disclose the particulars of the property,
both movable and immovable, owned and possessed
by the patient lying in comatose state.ii) The condition of the person lying in
comatose state shall be got ascertained by
causing him to be examined by a duly constituted
Medical Board, of whom one shall definitely be
a qualified Neurologist.iii) A simultaneous visit of the person lying in
comatose state, at his residence, shall be
caused to be made through the Revenue
authorities, not below the rank of a Tahsildar
and a report shall be procured as to all the
relevant facts and figures, including the
particulars of the close relatives, their
financial conditions and such other aspects.iv) The person seeking appointment as Guardian
of a person lying in comatose state shall be a
close relative (spouse or children) and all the
persons to be classified as legal heirs in the
due course shall be in the party array. In the
absence of the suitable close relative, a public
official such as 'Social Welfare officer' can be
sought to be appointed as a Guardian to the
49person lying in 'comatose state'.
v) The person applying for appointment as
Guardian shall be one who is legally competent
to be appointed as a Guardianvi) The appointment of a Guardian as above
shall only be in respect of the specific
properties and bank accounts/such other
properties of the person lying in comatose
state; to be indicated in the order appointing
the Guardian and the Guardian so appointed shall
act always in the best interest of the person
lying in 'comatose state'.vii) The person appointed as Guardian shall
file periodical reports in every six months
before the Registrar General of this Court,
which shall contain the particulars of all
transactions taken by the Guardian in respect of
the person and property of the patient in
comatose state; besides showing the utilization
of the funds received and spent by him/her.viii) The Registrar General shall cause to
maintain a separate Register with regard to
appointment of Guardian to persons lying in
'comatose state' and adequate provision to keep
the Reports filed by the Guardian appointed by
this Court.50
ix) It is open for this Court to appoint a
person as Guardian to the person lying in
comatose state, either temporarily or for a
specified period or permanently, as found to be
appropriate.x) If there is any misuse of power or
misappropriation of funds or non-extension ofrequisite care and protection or support with
regard to the treatment and other requirements
of the person lying in comatose state, it is
open to bring up the matter for further
consideration of this Court to re-open and
revoke the power, to take appropriate action
against the person concerned, who was appointed
as the Guardian and also to appoint another
person/public authority/Social Welfare Officer
(whose official status is equal to the post of
District Probation Officer) as the Guardian.xi) It shall be for the Guardian appointed by
the Court to meet the obligations/duties similar
to those as described under Section 15 of the
National Trust Act and to maintain and submit
the accounts similar to those contained in
Section 16.xii) The Guardian so appointed shall bring the
51appointment to the notice of the Social Welfare
Officer having jurisdiction in the place of
residence, along with a copy of the verdict
appointing him as Guardian, enabling the Social
Welfare Officer of the area to visit the person
lying in 'comatose state' at random and to
submit a report, if so necessitated, calling for
further action/ interference of this Court .xiii) The transactions in respect of the
property of the person lying in 'comatose
state', by the Guardian, shall be strictly in
accordance with the relevant provisions of law.
If the Guardian appointed is found to be abusing
the power or neglects or acts contrary to the
best interest of the person lying in 'comatose
state', any relative or next friend may apply
to this Court for removal of such Guardian.xiv) The Guardian appointed shall seek and
obtain specific permission from this Court, if
he/she intends to transfer the person lying in
comatose state from the jurisdiction of this
Court to another State or Country, whether it be
for availing better treatment or otherwise.36. In view of the above discussion, we hereby
hold and declare that the petitioners in W.P.
52(C)No.37278 of 2018 are justified in approaching the
Court for appointment of Guardian to the person by
name Gopalakrishnan (husband of the first petitioner
and father of the second petitioner), who was lying in
'comatose state' to get the first petitioner declared
as the Guardian of Gopalakrishnan, the victim.
37. Coming to the properties owned and possessed
by Gopalakrishan, (the victim in comatose state), the
petitioners have furnished the property particulars and
Bank details in respect of the assets owned and
possessed by the victim. The details are given below:
Property Details:
Sl. Documents Village Survey Extent
No. (Partition Deeds) No.
1 3577/13 of SRO , Elamkulam 776 11.42
ERNAKULAM Ares
2 3577/13 of SRO , Elamkulam 776 1.73
ERNAKULAM Ares
3 3578/13 of SRO , Elamkulam 762/1 0.444
ERNAKULAM Ares
4 157/70 of SRO, Elamkulam 762/1 3.00
Thripunithura cents
5 2425/14 of SRO, Poonithura 1371/4 12.14
Maradu Ares
6 2425/14 of SRO, Poonithura 1371/4 2.36
Maradu ARes
7 2559/12 of SRO, Poonithura 944/5
Maradu 3.24
Ares
538 2559/12 of SRO, Poonithura 1340/2 6.43
Maradu Ares
9 3155/03 of SRO, Poonithura 1342/2 1.21
Maradu AresBank Details:
1. Union Bank of India
Name : Gopalakrishnan T.
Account Number: 550502010000321
IFSC Code : UBIN0555053
Branch : Poonithura, Ernakulam2. Federal Bank
Name : Gopalakrishnan T.
Account Number: 12190100096671
IFSC Code : FDRL0001219
Branch : Poonithura, ErnakulamTrue copies of the updated pass books in respect of
the Bank accounts of the victim in the Poonithura
Branch of the Union Bank of India and Poonithura Branch
of the Federal Bank have been produced as Exts.P4 and
P5, along with I.A.No.3/2018. In view of the
submission made on behalf of the petitioners that the
victim lying in 'comatose state' had passed away on
'13.01.2019', as noted in our interim order dated
16.01.2019 and also in view of the submission that the
54petitioners are the sole legal heirs of the deceased
Gopalakrishnan, we do not find it necessary to pass any
specific order appointing the first petitioner as the
Guardian of her husband Gopalakrishnan, who was lying
in 'comatose state' any further. It is quite open for
the petitioners to proceed with further steps in
respect of the properties owned, possessed and enjoyed
by late Gopalakrishnan, by virtue of their accrued
rights, in accordance with law. It is not necessary for
them to file any report before the Registrar General of
this Court as to the transactions dealing with
properties, as further transactions in respect of the
properties/Bank accounts is not in the capacity as
Guardian of the victim lying in 'comatose state', but
as the legal heirs of the deceased Gopalakrishnan.
38. Coming to W.P.(C)No.37062 of 2018, an
affidavit dated 18.01.2019 has been filed by the first
petitioner/wife of the person lying in 'comatose
state' pointing out that the only property available
as belonging to her husband is the right as a co-owner
in Ext.P2 property having an extent of 3.0180 hectares
in Block No.18, Re.Sy.No.500/2 (Old Sy. NO.200/IA) of
55Kalpetta Village, by virtue of the Sale Deed
No.1192/2011 of the SRO, Kalpetta. It is also stated
in the said affidavit that there are no movable or
immovable properties in her name, other than the Joint
S.B. Account bearing No.1372101005699 (in her name and
the name of her husband T.V.Varkey- the victim) in the
Canara Bank, Panampilly Branch, Ernakulam. We declare
the first petitioner (wife of the person by name T.V.
Varkey, who is lying in 'comatose state') as the
Guardian of the latter, to deal with the property
covered by Ext.P2 on behalf of the co-owner by name
T.V.Varkey, subject to the condition that she shall
satisfy the guideline No.(vii) as mentioned in
paragraph 35 above, submitting a report, containing
all the relevant particulars in respect of the
transactions (including as to the utilisation of the
fund received and spent by her), before the Registrar
General of this Court. She shall be bound to act, as
mentioned in the other guidelines as well, to the
extent they are relevant, including by giving notice
to the Social Welfare Officer, having jurisdiction over
the area as to her appointment as Guardian, as
56stipulated under Clause No.(xii). It goes without
saying that she shall be answerable and accountable to
those who may later come in the class of 'Legal heirs'
of the victim in 'comatose state'.
39. We record and extend our appreciation to Mr.
V. Ramkumar Nambiar and Dr.Smitha Nizar (Parakkal), the
Amicus Curiae appointed by this Court, for their
earnest efforts in working up the legal position and
bringing up the relevant aspects, helping this Court to
facilitate proper adjudication of the subject matter.
40. The Registry is required to forward a copy of
this judgment to the Secretary, Dept. of Justice,
Ministry of Law and Justice, Government of India, New
Delhi for information and appropriate steps, if any [as
the Union of India, represented by the Secretary to the
Ministry of Health and Family Welfare Department alone
is in the party array].
Sd/-P.R. RAMACHANDRA MENON,
JUDGESd/- N. ANIL KUMAR,
JUDGElk
57APPENDIX OF WP(C) 37278/2018
PETITIONERS' EXHIBITS:EXHIBIT P1 A TRUE COPY OF THE DISCHARGE
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58APPENDIX OF WP(C) 37062/2018
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