SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Vijay Ramachandra Salgaonkar vs The State Service Through The … on 17 July, 2021

Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.

WP637_21.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.637 OF 2021

Vijay Ramachandra Salgaonkar … Petitioner
Vs.
State … Respondent

Mr. I. A. Saiyed for Petitioner.
Ms. Purnima Kantharia, GP for Respondent State.

CORAM : UJJAL BHUYAN
MADHAV J. JAMDAR, JJ.

Reserved on : JULY 09, 2021
Pronounced on : JULY 17, 2021

ORDER : (Per Ujjal Bhuyan, J.)

Heard Mr. Saiyed, learned counsel for the petitioner and
Ms. Kantharia, learned Government Pleader for the respondent State.

2. By filing this petition under Article 226 of the Constitution of
India, petitioner seeks a direction to the State to make provisions for
guardianship of mentally sick persons who are not minor. He further
seeks a direction to the respondent State to declare him as the guardian
of his wife Mrs. Veena Salgaonkar for the properties listed at exhibit-B
to the writ petition.

3. Petitioner is the husband of Mrs. Veena Salgaonkar who is aged
about 65 years. Petitioner is presently 73 years of age. Both of them are
living together as husband and wife without any children.

4. Petitioner’s wife Mrs. Veena Salgaonkar is suffering from
vascular dementia with diabetes mellitus and hyper tension. Because of
her debilitating health condition she is unable to take care of herself, not
to speak of her property. She is virtually a “living dead” person. Being

1/8
::: Uploaded on – 17/07/2021 18/07/2021 05:56:21 :::
WP637_21.doc

the only natural and legal guardian, petitioner has to constantly look
after and take care of his wife. Properties of the wife Mrs. Veena
Salgaonkar are mentioned in exhibit-B to the writ petition which
includes residential tenement, savings bank accounts with IDBI Bank
and Saraswat Co-operative Bank Limited, post office account and a
number of investments. While looking after the person of his wife is not
a difficult proposition, petitioner is handicapped in looking after her
properties in the absence of being declared as her guardian.

5. In this connection petitioner had filed a guardianship petition
before this Court which was registered as Guardian Petition (L) No.599
of 2021. However, the said petition was disposed of on withdrawal on
11.02.2021 with liberty to the petitioner to file a writ petition.

6. Accordingly the present writ petition has been filed seeking the
reliefs as prayed for.

7. This Court by order dated 30.03.2021 directed the concerned
Resident Deputy Collector to visit the residence of the petitioner where
Mrs. Veena Salgaonkar is residing and to submit a report to this Court
regarding her physical and mental condition including as to whether she
is in a position to look after herself and to sign documents / cheques with
understanding.

8. Pursuant thereto Mr. Sadanand Jadhav, Resident Deputy
Collector, Mumbai City submitted report dated 18.04.2021 to the
registry of this Court. He has stated in his report that he had visited the
residence of Mrs. Veena Vijay Salgaonkar on 16.04.2021 at about 02:00
p.m.. As per report of the Resident Deputy Collector, Mrs. Veena Vijay
Salgaonkar is a known patient of vascular dementia with diabetes
mellitus and hypertension; this condition started about seven years back
and its severity has increased to a great extent since 2020. Mrs. Veena
Vijay Salgaonkar was found to be completely bedridden and disoriented.

2/8
::: Uploaded on – 17/07/2021 18/07/2021 05:56:21 :::

WP637_21.doc

Resident Deputy Collector further reported that Mrs. Veena Vijay
Salgaonkar was not in a position to make voluntary movement and also
make signature for withdrawing money from bank.

9. Respondent State has not filed any affidavit as Ms. Kantharia
submits that the State would not like to treat it as an adversarial
litigation. Respondent has also not disputed the certificate dated
18.04.2021 of the Resident Deputy Collector.

10. Learned counsel for the petitioner submits that though he has
pleaded in the writ petition that his wife’s ailment is mental illness, there
is no provision for guardianship under the Mental Healthcare Act, 2017.
Main purpose of the Mental Healthcare Act, 2017 is to provide medical
care to mentally sick persons who are not looked after by anyone.
Referring to the Guardians and
Wards Act, 1890, he submits that the said
act is applicable only to minors and does not provide for guardianship of
majors. In the circumstances, he submits that this Court may pass
appropriate order appointing him as the guardian of his wife Mrs. Veena
Vijay Salgaonkar who is in a vegetative state.

11. On the other hand Ms. Kantharia, learned Government Pleader
has referred to the definition of mental illness as defined under section
2(1)(s) of the Mental Healthcare Act, 2017. She has also referred to the
provisions of
section 14 which deals with appointment of nominated
representative of a person who is not a minor. However, when this Court
pointed out to
section 17, she acknowledged that under that provision
the nominated representative would not have any right to look after the
property of a mentally ill person who is not a minor. However, she
submits that taking an overall view Court may consider passing
appropriate order to meet the ends of justice.

12. Submissions made by learned counsel for the parties have been
duly considered.

3/8
::: Uploaded on – 17/07/2021 18/07/2021 05:56:21 :::

WP637_21.doc

13. Short point for consideration is whether petitioner i.e., the
husband should be declared as the guardian of his wife Mrs. Veena Vijay
Salgaonkar in a proceeding under
Article 226 of the Constitution of
India.

14. We have already noted that petitioner had initially filed Guardian
Petition (L) No.599 of 2021 before this Court under the Guardians and
Wards Act, 1890. However, the said writ petition was disposed of on
withdrawal on 11.02.2021 with liberty to the petitioner to file a writ
petition. Thereafter the present writ petition has been filed.

15. Writ Petition No.9712 of 2017 was filed before this Court by
Santosh Rohidas Deshmukh seeking a direction to appoint him as a
guardian of his father Rohidas Deshmukh who was not in a position,
physically and mentally, to take care of himself and managing his
property. After referring to the decision of Madras High Court in the
case of Sairabanu Mohammed Rafi Vs. State of Tamil Nadu, Writ
Petition No.28435 of 2016 decided on 06.01.2016, this Court appointed
the petitioner as guardian of his father including for the purpose of
operating bank accounts.

15.1. Likewise in Writ Petition (L) No.28269 of 2017, Philomena Leo
Lobo Vs. Union of India decided on 13.10.2017, a Division Bench of
this Court allowed the prayer of the petitioner Philomena Leo Lobo for
declaring her as guardian of her husband Leo Lobo who was in a
comatose condition.

16. In Sikha Arijit Bhattacharya Vs. Union of India, Writ Petition
No.11757 of 2018 decided on 27.10.2020, a Division Bench of this
Court accepted the prayer of the petitioner Sikha Arijit Bhattacharya and
declared her as the guardian of her husband Dr. Arijit Bhattacharya who
was in a vegetative state.

4/8
::: Uploaded on – 17/07/2021 18/07/2021 05:56:21 :::

WP637_21.doc

16.1. Very recently, a Division Bench of this Court in Smt. Reshma
Salam Kondkari Vs. Union of India, Writ Petition (L) No.11394 of
2021 decided on 17.06.2021, declared the petitioner Reshma Salam
Kondkari as the guardian of her husband Abdul Salam Ismail Kondkari
who is in a vegetative state, for managing the bank accounts and
immovable property of the husband including selling of flat.

17. In Rajni Hariom Sharma Vs. Union of India, Writ Petition (St.)
No.3883 of 2020 decided on 27.08.2020, this Court decided the claim of
the wife to be the guardian of her husband who was stated to be in a
vegetative state. Regarding a person being in a vegetative state, it was
held as under:-

“17.1. From the above, we can say that 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. They may have normal heart beat
and may not require advanced life support to preserve life but
they remain unconscious, cannot even be awakened by painful
stimulus. Regarding vegetative step, it is stated that in such a
state, there is complete absence of behavioral evidence for self
or environmental awareness. Patients are awake but have no
awareness. 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 stool. As the 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.
Thereafter, various behavioral instances have been mentioned
as being present in vegetative state.”

17.1. In that case it was held that when a person is in coma or in a
comatose condition or in a vegetative state, it cannot be construed that
such a person is a physically challenged person or a mentally challenged
person as is understood under the relevant statutes. Nor such a person
can be construed to be a minor for the purpose of appointment of
guardian. In the circumstances it was held that statutes like the
Guardians and
Wards Act, 1890, Mental Healthcare Act, 2017 etc. would

5/8
::: Uploaded on – 17/07/2021 18/07/2021 05:56:21 :::
WP637_21.doc

not be applicable to persons in a comatose condition or in a vegetative
state. It was also held that there is no legislation in India relating to
appointment of guardians to patients lying in comatose or vegetative
state.

17.2. On the crucial issue as to relief that may be granted to the
petitioner by invoking writ jurisdiction under
Article 226 of the
Constitution of India, it was noticed that there is no statutory provision
governing the field relating to appointment of guardian of a person lying
in a comatose condition or in a vegetative state. This Court referred to
and deliberated upon the doctrine of parens patriae whereafter it was
held that in a case like this it is the Court alone as the parens patriae
which must take the ultimate decision though views of the near relatives,
next friend and doctors must be given due weightage. After referring to
decisions of various High Courts including our High Court, this Court
examined the width and plenitude of the power of the High Courts under
Article 226 of the Constitution of India and also relied upon the decision
of the Supreme Court in Aruna Ramchandra Shanbaug Vs. Union of
India, (2011) 4 SCC 454, and held that when the High Court exercises
jurisdiction under
Article 226 of the Constitution of India, it does so to
further the cause of justice. It was held as under:

38. From the above, it is clearly deducible that when the
High Court exercises jurisdiction under
Article 226 of the
Constitution of India, it does so to further the cause of justice.
To provide justice or discharge ex debito justiciae is the raison
d’ etre of the courts. The Latin expression ex debito justitiae
literally means a debt of justice; on account of justice; a claim,
the refusal of which would involve an injustice, and therefore,
one which justice owes it to the claimant to recognize and
allow. The doctrine of ex debito justiciae is well established
and requires no further elaboration. In addition to
Article 226 of
the Constitution, such power of the High Court is traceable to
section 151 of the Civil Procedure Code, 1908 and
section 482
of the Code of Criminal Procedure, 1973.”

17.3. While acceding to the prayer of the petitioner in that case, this
Court also sounded a note of caution that there should be some kind of

6/8
::: Uploaded on – 17/07/2021 18/07/2021 05:56:21 :::
WP637_21.doc

monitoring of the functioning of the petitioner as guardian to ensure that
guardianship was being used for the benefit of the person who was in a
vegetative state observing that such monitoring may be carried out
through the forum of Maharashtra State Legal Services Authority
constituted under the
Legal Services Authorities Act, 1987.

18. Adverting to the present case we find that as per certificate of the
medical officer dated 11.11.2020 of the Lokmanya Tilak Municipal
General Hospital, Sion, Bombay-22 which is under the Municipal
Corporation of Greater Mumbai, it has been certified that Mrs. Veena
Vijay Salgaonkar is under treatment of the said hospital since 11.09.2020
suffering from vascular dementia with diabetes mellitus and
hypertension. It has been certified that she is unable to look after herself
and her financial affairs.

19. As already noted, medical condition of petitioner’s wife Mrs.
Veena Vijay Salgaonkar is not being contested by the respondent who is
also not disputing the medical certificate dated 11.11.2020.

20. In the circumstances and considering all aspects of the matter, we
are of the view that if the following directions are issued, the same
would meet the ends of justice:-

1. Petitioner Mr. Vijay Ramachandra Salgaonkar shall be treated
and accepted as the guardian of his wife Mrs. Veena Vijay
Salgaonkar;

2. All authorities shall accept his status as such and allow him to
operate or manage the movable and immovable properties of
his wife Mrs. Veena Vijay Salgaonkar;

3. Member Secretary of Maharashtra State Legal Services
Authority either through himself or a designated official of
the said authority or through a legal aid counsel or through a
para legal volunteer shall monitor functioning of the petitioner

7/8
::: Uploaded on – 17/07/2021 18/07/2021 05:56:21 :::
WP637_21.doc

as guardian of Mrs. Veena Vijay Salgaonkar and shall submit
monthly report to the Maharashtra State Legal Services
Authority which shall be compiled for a period of two years.
If it is found necessary for extension of the period of
monitoring or in case of any exigency, Member Secretary of
Maharashtra State Legal Services Authority shall be at liberty
to move the High Court.

21. Ordered accordingly.

22. Copy of this order be furnished to Member Secretary of
Maharashtra State Legal Services Authority for doing the needful.

23. With the above directions, writ petition is disposed of. However,
there shall be no order as to costs.

(MADHAV J. JAMDAR, J.) (UJJAL BHUYAN, J.)

Minal Parab

8/8
::: Uploaded on – 17/07/2021 18/07/2021 05:56:21 :::

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation