The Allahabad High Court while allowing the petition held that in order to invoke the parens patriae jurisdiction, exceptional circumstances have to exist.
The scope of parens patriae jurisdiction has to be exercised with great caution and with enormous seriousness. If the Court is satisfied that the person concerned is in a vegetative state, then surely “parens patriae” jurisdiction can be exercised.
The Division Bench of Justice Mahesh Chandra Tripathi and Justice Prashant Kumar passed this order while hearing a petition filed by Pooja Sharma.
By means of the petition, the petitioner has prayed for following reliefs:-
“I. Issue a writ, order or direction in the nature of mandamus directing the respondent authority to permit the petitioner to sell the property of her husband for the treatment of her husband namely Vikas Sharma, who is suffering from head injury.
II. Issue a writ, order or direction in the nature of mandamus directing the respondent no 3 to provide the Government help for the treatment of the husband of the petitioner.
III. Any other writ, order or direction which the Court may deem fit and proper in the aforesaid facts and circumstances of the case.
IV. To award the cost of the petition in favour of the petitioner.”
The husband of the petitioner has purchased a piece of land through a registered sale deed dated 5.9.2011.
After purchasing the land, his name has also been mutated in the revenue records. Unfortunately, the petitioner’s husband, who had bought the land, met with an accident and sustained serious head injury. He has been lying in a comatose state since then.
The petitioner, who comes from a very average family, has been subjected to a lot of medical expenses, which she is unable to pay. She has already incurred huge expenses in connection with the treatment. Having exhausted all financial resources, she is in despair, isolation and abandonment besides undergoing agony, stress on account of her husband lying in a “permanent vegetative state”.
The petitioner (Pooja Sharma), being the wife of Vikas Sharma, has come forward with the aforesaid prayer.
She has approached this Court by means of instant petition seeking permission to sell the property purchased by her husband from his own income, to meet the expenses of treatment of her husband.
The petitioner submits that in India there is no legislation, which provides 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.
A perusal of the report of the Medical Board shows that the petitioner’s husband is in coma and in vegetative state and is not in a situation to take a decision or to execute any conveyance.
He needs a guardian to take care of him, his property and his affairs. Neither under the Mental Health Act nor under the Guardian and Wards Act, 1890, there is any provision for appointment of a guardian in such a situation, the Court noted.
The issue before the Court is as to who should be the Guardian of a person who can administer or handle the property of such a person who is in comatose state, as he does not fall under the ambit of mental illness nor will come under the ambit of a person with disabilities.
Before dealing with the current legislation, which allows appointment of a Guardian for those who cannot take a decision or to take care of themselves, the court needs to look into the history of various legislation which caters to such a situation.
The Court said that the said concept of taking care of patients in comatose state has been recognized for several hundreds of years.
The concept of ‘Parens Patriae’ was first found in the United Kingdom. The doctrine of ‘Parens Patriae’ originated in Britain as early as in the 13th Century, it means that the king is the father of the country and he was under the obligation to look after the interest of those who are unable to look after themselves.
Even in India, the concept of doctrine of ‘Parens Patriae’ was also recognized in the same way where the king was supposed to be the protector of the citizens as a parent.
The connotation of the term parens patriae differs from country to country, for instance, in England it is the King, in America it is the people, etc. The concept of taking care of patients in comatose state has been recognized for several hundreds of years.
It is clear that the intention of the Rights of Persons with Disabilities Act, 2016, is to first, examine if the Persons with Disabilities is capable of expressing his or her will or preferences, and second, under exceptional circumstances, where consultation is not possible, enable the provision of total support.
However, both the Acts provide for appointment of Support/Guardian for People with Particular Disabilities/Mental Illness, but do not address the situation of a person, who is in comatose state, the Court further said.
The Court held that in order to invoke the parens patriae jurisdiction, exceptional circumstances have to exist. The scope of parens patriae jurisdiction has to be exercised with great caution and with enormous seriousness.
The Supreme Court recognises that Constitutional Courts, including High Courts, can also act under their parens patriae jurisdiction to “meet the ends of justice”.
Mental incompetency is listed as an exceptional circumstance which would justify the exercise of this jurisdiction. If the Court is satisfied that the person concerned is in a vegetative state, then surely “parens patriae” jurisdiction can be exercised.
Looking at the health condition of the husband of the petitioner, it is clear that he needs 24 hours medical assistance. The petitioner submits that she comes from a very humble background and also works at a private place to make her ends meet. She has a minor son also to take care of. All her savings have been exhausted, the court noted.
Kulshreshtha, Amicus submitted that she has also taken loan from people to meet the medical as well as her household expenses.
He further submitted that the petitioner, in order to sustain herself, her minor son and her husband, who is in comatose state, is in desperate need to sell the property bought by her husband, so as she could have some funds to meet the expenses of medical treatment of her husband.
Petitioner herein has sought permission of the Court to sell the property bought by her husband in Noida.
“Thus, on a perusal of the medical report of the husband of the petitioner and various decisions of other High Courts as well as the Court, it is clear that a constraint Court may act as Parens Patriae so as to meet the ends of justice. The guidelines laid down by various Courts in identical matters appear to be sound”, the Court observed while allowing the petition.
Thus, the Court fixed the following norms/guidelines for appointing the petitioner as guardian of her husband:-
(a) We appoint Smt Pooja Sharma, wife of Vikas Sharma, as guardian of her husband (who is in comatose state).
(b) She will have the right to take decisions on behalf of her husband for his proper medical treatment, nursing care, welfare and benefit of her husband and their children with power to do all acts, duties and things with respect to all the assets, properties of her husband Vikas Sharma. She will be allowed to operate bank accounts of Vikas Sharma.
(c) To sell the land situated at khasra no.209/2, Village-Elahbaans, Tehsil-Dadri, District-Gautam Budh Nagar.
(d) The entire sale consideration will be deposited with the Registrar General of the Court. This amount should be invested in a fixed deposit so that the petitioner gets the maximum interest. The Registrar General is further directed to request the bank to remit Rs 50,000/- every month in the account, as it would be sufficient enough to meet the medical expenses of the husband of the petitioner.
(e) Needless to say that while selling the properties of her husband Vikas Sharma, the petitioner may ensure that the best possible price or consideration amount is fetched.
(f) In case, any relative or friend of the person lying in comatose state points out that guardian is not acting in the best interest of the person lying in comatose state, such person will also have the locus to approach the Court for issuance of proper direction and for removal of the guardian.