Delhi District Court
Sonu vs State ( Govt. Nct Of Delhi ) And Ors on 3 October, 2024
In the Court of Sh. Deepanker Mohan
District Judge-04, Shahdara District,
Karkardooma Courts, Delhi
GP No. 16/2022
In the matter of :-
1. Smt. Sonu
W/o Sh. Abhishek Tomar
D/o Sh. Mamchand
R/o H.No.5464, Gali No.16,
Near Neeraj Provisional Store,
Balbir Nagar Extn.,
Shahdara, Delhi-110032 ..... Petitioner
Versus
1. The Govt. of NCT of Delhi
Through its Chief Secretary
Delhi Secretariat Complex,
3rd floor, Delhi, Secretariat,
I.P. estate, Delhi-110002
2. The Executive Engineer
Electricity Distribution Division-1
Paschimanchal Vidyut Vitran Nigam Ltd.
Roop Nagar, Industrial Area, Loni Ghaziabad, U.P.
3. Arvind Tomar
S/o Late Yogpal Singh Tomar
R/o H.No.1/5464, Gali No.16,
Near Neeraj Provisional Store,
Balbir Nagar Extension,
Shahdara, Delhi-110032 ....Respondents
JUDGMENT
1. GP No. : 16/2022 2. Under Section : Under Section 53 of the Mental Health Act, 1987, for appointment of guardian of mentally ill person GP No.16/2022 Page 1 of 11 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date: 2024.10.03 17:58:14 +0530 namely Sh. Abhishek Tomar S/o Late Yogpal Singh Tomar. 3. Date of Institution : 18/10/2022 4. Reserved for Judgment : 30/08/2024 5. Judgment : 03/10/2024
1. Vide this judgment, this court shall dispose of this petition u/s 53 of the Mental Health Act, 1987, for appointment of guardian of mentally ill person namely Sh. Abhishek Tomar S/o Late Yogpal Singh Tomar filed by petitioner against respondents.
2. The necessary facts for disposal of the present case are as follows :-
I. It is stated that petitioner is the wife of Sh. Abhishek Tomar who is mentally disabled. Parents of Sh. Abhishek Tomar namely Late Sh. Yogpal Singh Tomar and Late Smt. Madhvi Devi expired on 14.11.2020 and 26.12.2020 respectively. Late Sh. Yogpal Singh was working in the office of the Executive Engineer Electricity Distribution Division-1, Paschimanchal Vidyut Vitran Nigam Ltd.
II. Sh. Abhishek Tomar is a disabled person and suffering from 90% permanent disability in relation to his brain as per the guidelines for the purpose of assessing the extent of specified disability in a person included under RPWD Act, 2016 notified by Govt. of India vide SO 76(E) dated 04.01.2018.
III. Respondent no.1 is the only real brother of Sh. Abhishek Tomar and he has no objection if guardianship certificate be issued to petitioner. When GP No.16/2022 Page 2 of 11 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.10.03 17:58:21 +0530 petitioner had approached the office of respondent no.1 for pension of Sh. Abhishek Tomar, respondent no.1 told her to get the guardianship certificate from the competent court and submit the same in its office for further proceedings. There is no other person in the family to look after Sh. Abhishek Tomar except petitioner. Petitioner undertakes to look after the assets, if any, in the name of Sh. Abishek Tomar. Petitioners undertakes to use the family pensioner benefits which may be granted to her husband for his benefits and well beings.
3. Notice in the present petition was issued upon the respondents and SDM concerned vide order dated 10.01.2023. Citation of the petition to be published in the newspapers 'Statesman, Delhi' and citation to be affixed on the notice board of the court as well as on notice board of the office of SDM concerned were issued.
4. On 03.03.2023, SDM, Shahdara filed valuation report and LRs report. Citation published in the newspaper "Rashtriya Sahara" dated 08.02.2023 was filed on behalf of petitioner.
5. On 30.01.2024, respondent no.2 put his appearance. On 08.05.2024, Sh. Ratan Pal, Naib Tehsildar, SDM Shahdara, Office/Delhi Govt. put his appearance on behalf of respondent no.1 and submitted that respondent no.1 has no objection if the present petition be allowed and Smt. Sonu be appointed as guardian of Sh. Abhishek Tomar. No written statement/reply or objection had been filed on behalf of respondent no.2 despite opportunity granted, therefore, right of respondent no.2 to file written statement/reply or objection closed and the matter was listed for PE on GP No.16/2022 Page 3 of 11 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.10.03 17:58:27 +0530 08.05.2024.
6. On 29.05.2024, respondent no.3 put his appearance. He submitted that Sh. Abhishek Tomar is his brother. He submitted that he has no objection, if petitioner be appointed as guardian of Sh. Abhshek Tomar. Ld. counsel for respondent no.2 submits that respondent no.2 did not wish to file any reply or objection in the present petition as the present petition is only for appointment of guardian. He further submitted that if Smt. Sonu be appointed as guardian of Sh. Abhishek Tomar and approach the department for pension then the said application would be decided as per law.
7. Petitioner to prove her case examined two witnesses i.e. PW-1 and PW-2.
I. PW-1 deposed as follows which is as under:-
i. PW-1 i.e. petitioner. Petitioner filed her evidence affidavit on the line of averments mentioned in the petition. On 05.06.2024, PW-1 tendered her evidence by way of affidavit as exhibited as Ex.PW1/1 and also relied on following documents i.e. (1) Ex.PW1/A(OSR)- Disability certificate of Sh. Abhishek Tomar, (2) Ex.PW1/B- Death certificate of Y.P. Singh Tomar, (3) Ex.PW1/C- Death certificate of Madhi Devi, (4) Ex.PW1/D- Aadhar Card of Sh. Abhishek Tomar & (5) Mark P-1- Aadhar card of petitioner. He was not cross examined by Ld. counsel for respondent no.2 despite opportunity granted.
II. PW-2 Dr. Deepak Kumar deposed as follows which is as under:-
i. On 27.07.2024, PW-2 Dr. Deepak Kumar, Professor and Head, Department of Psychiatry, IHBAS, Delhi, who had brought the original GP No.16/2022 Page 4 of 11 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.10.03 17:58:33 +0530 case file No.2011-01-3207 of Sh. Abhishek Tomar. He deposed that the patient patient was examined by the Medical Authority at IHBAS hospital for disability certification and he was the Chairperson of the said Board/Medical Authority which was constituted to examine the patient Abhishek Tomar along with two members namely Dr. Jagdish Sadiza and Dr. Akshara Mishra. He deposed that the patient had underwent IQ/SQ assessment by clinical psychologist and SQ of 35 was reported equivalent to social age of five years and three months using the Vineland Social Maturity Scale (VSMS). He deposed that based on this report, the Board diagnosed the patient with mental retardation (severe intellectual impairment) and disability certificate was issued on 27.08.2021. He deposed that the disability certificate was of 90% permanent disability bearing his signatures along with signatures of other two members at points A, B and C respectively Ex.PW1/A. He had also brought Certificate of Disability and IQ/SQ report of Sh. Abhishek Tomar Ex.PW2/A (colly) running into 03 pages (OSR). He deposed that patient with severe intellectual impairment cannot take care of self and property. Hence, it would be pertinent to consider appointing a guardian for such patients including the index case for his overall care as per the legislation (RPWD Act, 2016). He was not cross examined by respondent no.2 and Ld. counsel for respondent no.3 despite opportunity granted.
8. On 27.07.2024, petitioner's evidence was closed and the matter was listed for final arguments.
9. Final arguments were heard on 30.08.2024.
10. Today, Ld. counsel for petitioner appeared along with the petitioner GP No.16/2022 Page 5 of 11 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.10.03 17:58:40 +0530 and Sh. Abhishek Tomar. He submitted that petitioner is a legally wedded wife of Sh. Abhishek Tomar and out of the said wedlock, she is also having three children namely Aradhya (date of birth- 27.04.2013), Priyanshi (date of birth- 03.04.2015) and Hitanshi (date of birth- 17.08.2020). He further submitted that petitioner is taking care of Sh. Abhishek Tomar as well as their daughters. He further submitted that petitioner has no adverse interest towards the said Sh. Abhishek Tomar and it is necessary that she be appointed as his guardian.
11. The petitioner being the wife of Sh. Abhishek Tomar, filed the present petition for her appointment as guardian of Sh. Abhishek Tomar, who is diagnosed with mental retardation (severe intellectual impairment) and as per disability certificate, he is 90% permanent disable person. PW-2, during his examination, has proved the disability certificate and further deposed that patient with severe intellectual impairment cannot take care of self and property and appointment of guardian such patient including the index case is necessary and is to be considered for his overall care as per legislation (RPWD Act, 2016).
12. A person above 18 years of age considered capable of making decisions in his life and material affairs. However, an adult may not be in a position to take his own decision in certain circumstances like mental disability. The person may not be able to withdraw money from his bank account or sell his property for funding his treatment.
13. One of the objects of the National Trust for Welfare of Persons with Autism Cerebral Palsy, Mental Retardation and Multiple Disability Act, GP No.16/2022 Page 6 of 11 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.10.03 17:58:46 +0530 1999 (The National Trust Act, 1999) is to evolve procedure for the appointment of guardian and trustees for persons with disabilities. Section
14 of the Act provides for appointment of a guardian of a person with disability on application of a parent, relative or registered organization to Local Level Committee constituted under the Act.
14. The Mental Health Act, 1987 provides mechanism to inquire into whether alleged mentally, ill person was incapable of taking care of himself or of managing his property or both. Upon inquiry, the District Court had the power to appoint guardian to take care of the person and of a manager for management of the property. However, the old Act has been repealed by the Mental Healthcare Act, 2017, but new Act of 2017, does not contain provision for appointment of a guardian for property of mentally ill person similar to the provision in repealed old Act.
15. The Right of persons with Disabilities Act, 2016 deals with a person with long term physical, mental, intellectual or sensory impairment which hinders his full and effective participation in society equally with others. Section 14 of the Act has provision for appointment of limited guardian by the District Court or designated authority to take legally binding decisions on behalf of person with disability in consultation with such person. Limited guardianship has been explained as a system of joint decision which operates on mutual understanding and trust between the guardian and the person with disability. Limited guardianship is limited to a specific period, specific decision and situation and operate in accordance to the will of the person with disability.
GP No.16/2022 Page 7 of 11
Digitally
signed by
DEEPANKER
DEEPANKER MOHAN
MOHAN Date:
2024.10.03
17:58:53
+0530
16. The Hon'ble High Court of Bombay in Rajni Hari Om Sharma Vs. Union of India, 2020 SCC Online Bom 880 observed that there is no statutory provision for appointment of guardian for person lying in comatose state. In this case, bank has refused to allow the wife to put her signature in place of her husband who was in comatose. The court allowed the petition of the wife to be appointed guardian of the husband. The court also directed monitoring of the guardian through State Legal Aid Committee for period of 02 years.
17. The Hon'ble High Court of Delhi in "S.D. Vs. Govt. of NCT of Delhi, 2021 SCC Online Delhi 4856" appointed guardianship committee of the wife, son and brother as nominated representative under the Mental Healthcare Act, 2017 and also to manage all affairs of the patient including medical treatment, healthcare, decisions qua daily living, financial affairs dealing with immovable and movable assets, decision qua share holding of the patient, operate bank account. In this case, the relatives contested as to who should be appointed as the guardian. The Court observed that under Order XXXII-A, Rule 5 of CPC, the Civil Court would have jurisdiction to appoint guardian in respect of persons with disability. The Court noted that the absence of provision in the Mental Healthcare Act, 2017 in respect of management of financial affairs, appointment of guardian or the manner in which the movable/immovable property of the mentally ill person is to be taken care of, the court have the jurisdiction to appoint guardian in respect of persons with disability.
18. The Hon'ble Supreme Court of India in Chaman Lal Sahu Vs. Union of India (1990) 1 SCC 613 has explained doctrine of parens patriae as the GP No.16/2022 Page 8 of 11 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.10.03 17:58:59 +0530 right and duty of the sovereign in public interest is to protect person under disability. The said doctrine implies that the King is the father of country and is under obligation to look after the interest of those who are unable to look after themselves.
19. The Hon'ble Supreme Court of India in Aruna Ramachandra Shanbaug Vs. Union of India, (2011) 4 SCC 454 observed that in the case of incompetent person who is unable to take decision, it is the Court alone as parens patriae which must take the ultimate decision though the view of the near relatives, next of King and doctors must be given due weightage.
20. The Hon'ble High Court of Bombay in Binita Dhruv Karia Vs Miss Aashna Dhruv Karia, Guardianship Petition (L) No.21364/2023 has noted that the existing Mental Healthcare Act, 2017 unlike the repealed Act does not have a provision for the District Court to appoint a suitable person as guardian of a person suffering from mental illness and incapable of taking care of himself. The Hon'ble High Court has held that " Thus, in my view the only remedy available in such case is for the petitioner to apply under Guardians and Ward Act, 1890 for the petitioner to be appointed as guardian of the person, despite he/she being a major, but suffering from mental retardation."
21. In view of the above law laid down by the Hon'ble Supreme Court and the Hon'ble High Courts and considering the facts and circumstances of the present case, particularly considering that the Medical Board has diagnosed Sh. Abhishek Tomar with mental retardation (severe intellectual impairment) and issued disability certificate declaring 90% permanent GP No.16/2022 Page 9 of 11 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.10.03 17:59:06 +0530 disability and the statement of PW-2, this court is of the view that it would be necessary for the petitioner who is wife of the said Sh. Abhishek Tomar, to be appointed as his guardian for taking all such decisions necessary and incidental for the welfare and benefit of the said Sh. Abhishek Tomar. This would also include appointment of the petitioner to be guardian of the said Sh. Abhishek Tomar to apply for the family pension of Sh. Yogpal Singh Tomar with the department i.e. respondent no.2 and receive the family pension from respondent no.2 or the bank, if allowed/granted to Sh. Abhishek Tomar, and utilize the said amount of family pension upon Sh. Abhishek Tomar for his welfare and fulfilling his daily needs including clothing, food, medicines etc. In view of the provision of rights of persons of disability Act, 2016, the present appointment of the petitioner to be guardian of Sh. Abhishek Tomar is for limited purpose for a period of 03 years with the condition that the petitioner shall annually tender the complete accounts of the amount of family pension received by her from respondent no.2 on behalf of Sh. Abhishek Tomar and the amounts spent by her upon said Sh. Abhishek Tomar for his daily needs, to the Hon'ble Secretary of DLSA, Shahdara. Petitioner is also directed to furnish an indemnity bond along with one surety bond within 30 days from today. This permission shall not tantamount to vesting or confirming any right, title or interest of the petitioner in the immovable properties of Sh. Abhishek Tomar.
22. On fulfilling the necessary condition, the guardian certificate be issued in favour of petitioner, as per law. Ordered accordingly.
23. Copy of the present order be sent to Hon'ble Secretary DLSA GP No.16/2022 Page 10 of 11 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.10.03 17:59:11 +0530 Shahdara for compliance. Hon'ble Secretary DLSA Shahdara is requested to file evaluate the case as well as the accounts furnished by the petitioner in compliance with this judgment and further file his report.
24. Present petition is accordingly disposed of.
25. File be consigned to record room after due compliance.
Digitally
signed by
DEEPANKER
DEEPANKER MOHAN
MOHAN Date:
2024.10.03
Announced in the open Court 17:59:20
+0530
on 3rd October, 2024
(Deepanker Mohan)
District Judge-04
Shahdara District/KKD Courts/Delhi
03.10.2024
GP No.16/2022 Page 11 of 11