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Shobha Gopalakrishnan vs State Of Kerala on 20 February, 2019

[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 with

disabilities 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
33

between 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 interest

just 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
34

Opportunities, 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
35

6. 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
36

and 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
37

Autism, 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
38

unfortunately 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
39

Counsel, 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
40

paragraph 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
42

centres 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 open

Patient breathes on her own
Spontaneous blinking and roving
eye movements

Produce sounds but no words
Brief, unsustained visual pursuit
(following an object with her
eyes)

Grimacing to pain, changing facial
expressions

Yawning; chewing jaw movements
Swallowing of her own spit
Non-purposeful limb movements;

arching of back;

Reflex withdrawal from painful
stimuli

Brief 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
43

the medical examination of Aruna
Shanbaug.

Minimally Conscious State
Some patients with severe
alteration in consciousness have

neurologic 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
44

others, 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
care

Section 19- Right to community living
Section 20-Right to protection from
cruel, inhuman and degrading treatment.

Section 21-Right to equality and non-
discrimination

Section 22-Right to information
Section 23-Right to confidentiality
Section 24-Restriction on release of
information in respect of mental illness

Section 25-Right to access medical
records

Section 26-Right to personal contacts and
communication

Section 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
46

reference 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
47

U.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
49

person lying in 'comatose state'.

v) The person applying for appointment as
Guardian shall be one who is legally competent
to be appointed as a Guardian

vi) 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 of

requisite 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
51

appointment 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
53

8 2559/12 of SRO, Poonithura 1340/2 6.43
Maradu Ares
9 3155/03 of SRO, Poonithura 1342/2 1.21
Maradu Ares

Bank Details:

1. Union Bank of India

Name : Gopalakrishnan T.
Account Number: 550502010000321
IFSC Code : UBIN0555053
Branch : Poonithura, Ernakulam

2. Federal Bank

Name : Gopalakrishnan T.
Account Number: 12190100096671
IFSC Code : FDRL0001219
Branch : Poonithura, Ernakulam

True 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
54

petitioners 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
55

Kalpetta 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
56

stipulated 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,
JUDGE

Sd/- N. ANIL KUMAR,
JUDGE

lk
57

APPENDIX OF WP(C) 37278/2018
PETITIONERS' EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE DISCHARGE
CERTIFICATE ISSUED BY MEDICAL TRUST
HOSPITAL DATED
01-06-2018.

EXHIBIT P2 TRUE COPY OF THE CERTIFICATE ISSUED BY
P.S MISSION HOSPITAL, MARADU DATED
09-11-2018.

EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 06-01-

2016 OF THE HIGH COURT OF JUDICATURE AT
MADRAS IN W.P. NO 28435 OF 2015

EXHIBIT P4 A SCANNED/TRUE COPY OF THE UPDATED PASS
BOOK OF M/S. UNION BANK OF INDIA,
POONITHURA BRANCH, ERNAKULAM IN THE
NAME OF THE PETITIONER'S HUSBAND,
T.GOPALAKRISHNAN BEARING ACCOUNT
NO.550502010000321

EXHIBIT P5 A SCANNED/TRUE COPY OF THE UPDATED PASS
BOOK OF M/S. FEDERAL BANK, POONITHURA
BRANCH, ERNAKULAM IN THE NAME OF THE
PETITIONER'S HUSBAND, T. GOPALAKRISHNAN
BEARING ACCOUNT NUMBER 12190100096671

/TRUE COPY/

P.S. TO JUDGE
58

APPENDIX OF WP(C) 37062/2018
PETITIONER'S/S EXHIBITS:

EXHIBIT P1 THE TUE COPY OF THE MEDICAL CERTIFICATE
DATED 14/09/2018 ISSUED BY DR.MATHEW
M.JOSEPH ASST.SURGEON PHC POOTHRIKKA.

EXHIBIT P2 THE TRUE COPY OF SALE DEED NO.1192/2011
OF THE SRO KALPETTA DATED 14/03/2011.

/TRUE COPY/

P.S. TO JUDGE.

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