Delhi District Court
Ms Gurpreet Kaur Talwar vs The State on 6 October, 2016
IN THE COURT OF ANURAG SAIN, ADJ02 (EAST),
KARKARDOOMA COURTS, DELHI
G.C. No.: 01/16
Ms Gurpreet Kaur Talwar
W/o Arvind Talwar
62, Priya Enclave,
P.S. Karkardooma,
Delhi110092
.........Petitioner
Versus
1. The State
2. Sh. Ashwani Talwar,
S/o Late Sh. Kulbhushan Talwar
62, Priya Enclave,
P.S. Karkardooma
Delhi110092
3. Sh. Dhruv Talwar
S/o Sh. Arvind Talwar
62, Priya Enclave,
P.S. Karkardooma
Delhi110092
.......Respondents
Date of institution : 20.05.2015 Date of reserving judgment : 05.10.2016 Date of pronouncement : 06.10.2016 JUDGMENT G.C. No.: 1/16
1. The present petition for appointment of the petitioner as a guardian and manager of her mentally ill husband under Sections 52, 53 and 54 of the Mental Health Act, 1987 along with Section 151 CPC has been filed by the petitioner.
2. Briefly stated the facts of the case are that the petitioner was married with Sh. Arvind Talwar on 14.02.1994; they were blessed with two sons namely master Dhruv Talwar (born on 08.01.1995) and master Jayant Talwar (born on 23.11.1999). In the year 2006, Sh. Arvind Talwar was working as Director in Asmara Home Products Pvt. Ltd., which often required him to travel to Europe for his client meetings; On his return from one such trip from Germany in September 2007, Sh. Arvind Talwar was suffering from high fever and was immediately taken to Kailash Hospital, Noida for his treatment; Since there was no improvement in his condition, therefore he got admitted in ICU of the hospital on 21.09.2007 on suspicion of having contacted Typhoid; During the course of his treatment, Sh. Arvind Talwar developed 'Septicemia' and his condition worsened drastically to at point that he had to be revived with the help of special American drug and after getting the said drug, Sh. Arvind Talwar had recovered from 'Septicemia', however, he lost all his consciousness and even stopped responding of any kind of stimuli. MRI Brain Scan of Sh. Arvind Talwar was conducted G.C. No.: 1/16 and thereafter the Doctors declared that he was diagnosed with severe 'Viral Encephalitis' for which he was under observation in the hospital for another one month; Since there was no improvement in the condition of Sh. Arvind Talwar, therefore, he was referred by the doctors to Apollo Hospital, New Delhi for further treatment. Sh. Arvind Talwar was kept in ICU by Apollo Hospitals for one month. After being in hospital almost for three months, Sh. Arvind Talwar was discharged from Apollo Hospital on 02.12.2007, declaring him to be a 'Permanent Vegetative State' and till this date Sh. Arvind Talwar continues to be in 'Minimal Conscious State', which means that he is completely dependent on others for his day to day affairs. He is unable to move of his own and is looked after in the house under care of his family members and full time nurses. A room in the house of the petitioner has been converted into a ward for care and comfort of Sh. Arvind Talwar. After discharged from Apollo Hospital, Sh. Arvind Talwar has not been able to communicate and has been breathing with the help of 'Tracheotomy Tube' in his throat and is being fed by a 'Peg Tube' attached to his stomach. His position has to be changed after every two hours to avoid bedsores and till date, Sh. Arvind Talwar has not got even a single bedsore. It has been further averred that Sh. Arvind G.C. No.: 1/16 Talwar has one elder brother Sh. Ashwani Talwar. The parents of Sh. Arvind Talwar have already expired and now the family house bearing no. 62, Priya Enclave, New Delhi110092 needs to be mutated in the names of their two surviving sons i.e. Sh. Ashwani Talwar and Sh. Arvind Talwar. It has been further averred that there are certain investments like fixed deposit etc. in the joint name of Sh. Ashwani Talwar and Sh. Arvind Talwar; Apart from the same, there are certain joint financial investments of the petitioner and her husband Sh. Arvind Talwar like joint bank accounts and a joint property. It has been further averred that for the last seven years, the petitioner has been taking care of all matters concerning the needs of her family members, all by himself, without the benefit of access to any of the jointly owned properties and accounts and has not been able to use the joint funds or withdraw fixed deposits eve on their maturity, as her husband Sh. Arvind Talwar is unable to sign any documents and continues to be in a minimally conscious state. It has been further averred that the petitioner and her husband Sh. Arvind Talwar also jointly own a flat bearing number B103, Gulmohar Garden Apartment, Sector 44, Noida201301. Apart from the above, there are certain bank accounts in the individual name of Sh. Arvind Talwar which need to be accessed and closed by the petitioner. It has been G.C. No.: 1/16 further averred that Sh. Arvind Talwar needs to be taken to the hospital for his periodic review every four to six months. On these premise, the petitioner has filed the present petition.
3. The Notice of the petition was issued to the respondents. The notice to respondent no.1 i.e. The State was served by way of publication for the general public in the newspapers 'Nav Bharat Times' in its edition dated 07.05.2016 and 'The Statesman' in its edition dated 10.07.2015 but despite the service, none had appeared on behalf of respondent no.1 and no member of the general public has filed any objection to the present petition.
4. Respondents no.2 and 3 appeared before the court on 13.08.2015 and filed their respective affidavit on 07.10.2015 to the effect that they have gone through the present petition; its contents have been read over and explained to them and they have no objection to any of the prayer clause contained in the present petition. Their respective statement were also recorded on 09.09.2016 wherein they have stated that they have no objection in case the petitioner is appointed as a guardian of Sh. Arvind Kumar Talwar and also guardian/manager to look after the property of Sh. Arvind Kumar Talwar as mentioned in the prayers clauses of the petition. Their no objection have been exhibited as Ex. R2 and Ex. R3.
G.C. No.: 1/16
5. In order to prove the case, petitioner examined Dr. Jyoti Bala Sharma, D M Neurology, Senior consultant, Department of Neurology, Fortis Hospital, Noida as PW1.
6. The petitioner also made a statement before the court on 09.09.2016 and also tendered her evidence by way of affidavit Ex. P2. She also relied upon documents viz her marriage photograph Ex. PW2/1, copy of discharge summary of Arvind Talwar of Kailash Hospital & Research Centre Ltd. Ex. PW2/2, copy of discharge summary of Arvind Talwar of Indraprastha Apollo Hospital Ex. PW2/3 and photograph of Arvind Talwar Ex. PW2/4. She has further deposed that she be appointed as guardian of her husband Sh. Arvind Kumar Talwar to look after the properties and finances as mentioned in annexure I filed by the petitioner along with application under Section 151 CPC dated 26.04.2016.
7. The petitioner has also led additional evidence on 05.10.2016. She deposed that she has been taking care of her husband Sh. Arvind Kumar Talwar since September 2007 and undertook that she will continue to do so; She further deposed that she will be responsible for any dependent of Sh. Arvind Kumar Talwar; She further deposed that she has no interest adverse to that of her son Master Jayant Talwar aged about 16 years; She further deposed that she does not have any interest adverse to that of G.C. No.: 1/16 her husband Sh. Arvind Kumar Talwar and this petition has been filed bonafide and without any adverse or prejudicial interest and is in the best interest of Sh. Arvind Kumar Talwar and all his dependents. Vide separate statement, the petitioner closed her evidence on 05.10.2016.
8. It is argued by the ld. Counsel for the petitioner that the husband of the petitioner namely Arvind Talwar is in coma since September 2007. It is further argued by the ld. Counsel for the petitioner that Sh. Arvind Talwar on his return from his trip of Germany in September 2007 was suffering from high fever and was taken to Kailash Hospital, Noida. During the said course, Sh. Arvind Talwar developed 'Septicemia' and his condition worsened drastically to at point that he had to be revived with the help of special American drug and after getting the said drug, Sh. Arvind Talwar had recovered from 'Septicemia', however, he lost all his consciousness and even stopped responding of any kind of stimuli. MRI Brain Scan of Sh. Arvind Talwar was conducted and thereafter the Doctors declared that he was diagnosed with severe 'Viral Encephalitis' for which he was under observation in the hospital for another one month; Since there was no improvement in the condition of Sh. Arvind Talwar, therefore, he was referred by the doctors to Apollo Hospital, New Delhi for further treatment. Sh. Arvind G.C. No.: 1/16 Talwar was kept in ICU by Apollo Hospitals for one month. After being in hospital almost for three months, Sh. Arvind Talwar was discharged from Apollo Hospital on 02.12.2007, declaring him to be a 'Permanent Vegetative State' and till this date Sh. Arvind Talwar continues to be in 'Minimal Conscious State', which means that he is completely dependent on others for his day to day affairs. He is unable to move of his own and is looked after in the house under care of his family members and full time nurses. He further argued that since 02.12.2007, Sh. Arvind Talwar has not been able to communicate and has been breathing with the help of 'Tracheotomy Tube' in his throat and is being fed by a 'Peg Tube' attached to his stomach. His position has to be changed after every two hours to avoid bedsores. He further argued that Sh. Arvind Talwar is in the state of coma.
9. I have heard ld. counsel for the petitioner and perused the record.
10.The petitioner is Hindu by religion.
11.It is not out of place to mention that before passing any order for the appointment of guardian of mentally ill person or for the manager of the property, the court is bound to give findings qua the mental illness of such person.
12.In the present case, admittedly Sh. Arvind Talwar, husband of G.C. No.: 1/16 the petitioner, for whom the petitioner has filed the present petition for appointing her as guardian and manger of her mentally ill husband Sh. Arvind Talwar, is in coma since September 2007.
13.Before adverting to the averments as mentioned in the petition and the evidence led by the petitioner, let me examine the case of the petitioner whether the ailment of the husband of the petitioner falls under the definition of mentally ill person as defined under Section 2 (l) of the Mental Health Act, 1987 and the petition of the petitioner falls under the purview of Section 52, 53 and 54 of the Mental Health Act, 1987 or not. To ascertain the same, the testimony of Dr. Jyoti Bala Sharma, D M Neurology, Senior consultant, Department of Neurology, Fortis Hospital, Noida is relevant which is reproduced as under: "PW1 Dr. Jyoti Bala Sharma, D M Neurology, Senior consultant, Department of Neurology, Fortis Hospital, Noida.
On S.A. I state that patient Sh. Arvind Kumar Talwar aged 48 years UHID164188 is under my regular treatment since 05.02.2011 in Neurology Department on OPD basis. Based on the clinical assessment Sh. Arvind Kumar Talwar is found to be suffering from post encephalitic sequalae minimally conscious state. This condition renders the individual dependent on caregivers for activities of daily livings. He is not able to express and G.C. No.: 1/16 communicate or move his limbs. He is fed through PEG (Percutaneous Endoscopic Gastrotomy Tube) which is inserted in the stomach. He is in this condition since 21.09.2007 as per medical record of other doctors and chances of improvement are minimal. I have not seen any change in his condition since 05.02.2011. The patient will need regular follow up with neurologist. The photocopy of the clinical records of the patient under my observations is exhibited as Ex. PW1/1 (Colly five pages) (OSR). Court question: The treatment which you are administering to Sh. Arvind Kumar Talwar relates to the mental illness or mental retardation in any manner. What have you to say ?
Ans. No. The treatment for which Sh. Arvind Kumar Talwar is being treated is not related to any mental illness or mental retardation but for the reasons stated above and the such treatment cannot be termed as treatment for mental illness or mental retardation."
14.From the testimony of PW1 Dr. Jyoti Bala Sharma, D M Neurology, Senior consultant, Department of Neurology, Fortis Hospital, Noida wherein the witness has categorically stated in response to the court question that the treatment for which Sh. Arvind Kumar Talwar is being treated is not related to any mental illness or mental retardation but for the reasons stated above and the such treatment cannot be termed as treatment for mental illness or mental retardation. From the statement of PW 1 Dr. Jyoti Bala Sharma, it is clear that the treatment of Sh. Arvind Kumar Talwar is not related to any mental illness or mental retardation. Hence the said treatment cannot be termed G.C. No.: 1/16 as treatment for mental illness or mental retardation.
15. The present petition has been filed by the petitioner under Sections 52, 53 and 54 of the Mental Health Act, 1987 along with Section 151 CPC for her appointment as a guardian and manager of her husband Sh. Arvind Talwar. However, in view of the testimony of PW1 Dr. Jyoti Bala Sharma, D M Neurology, Senior consultant, Department of Neurology, Fortis Hospital, Noida, the court is of the considered opinion that Sh. Arvind Talwar cannot be said to be mentally ill person in terms of the Mental Health Act, 1987. The petititon of the petitioner is liable to be dismissed on this ground only.
16. Moreover, in the judgment passed by the Hon'ble Madras High Court in W.P. No.4358 of 2016 titled as K. Sailaja Vs. The State of Tamilnadu & Ors. wherein the Hon'ble Madras High Court has considered the report of the medical practitioner as stated in para 5 of the aforesaid judgment and has held in para 6 of the aforesaid judgment. Paras 5 and 6 of the aforesaid judgment are as under: "5. Accordingly, today,when the matter appears in the cause list, the 3rd respondent has filed a report dated 22.2.2016 along with the enclosures before this Court after making due inspection on the petitioner's husband along with a medical practitioner. In the said report, it has been stated as follows;
"I, Dr.Gowthami, MD (General Medicine) working in G.C. No.: 1/16 Government Hospital, Tambaram, have examined the patient Thiru.R.Baskar, No.5, Sivam enclave Meenambal Street, 1st Lane, West Tambaram, Chennai 45. On 13.2.2016 at 5.30 p.m., this patient had a history of RTA while riding in Two Wheeler on 10th August 2015, had head injury, came to Chromepet Government Hospital then referred to Rajiv Gandhi Government General Hospital, Chennai. There they have filed as MLC patient and then shifted to private hospital. Patient is having altered conscious level since the accident till now. CT Brain was taken on 10.08.2015 in Kauvery Hospital, Mylapore (Private) showed intra cerebral haemorrhage with intra ventricular haemorrhage with diffused axonal injury. Patient was put on ventilator support and Ryle's Tube feeding. After then Tracheostomy done. Patient was advised Medicine and discharged with this condition and advised regular follow up.
On examination of the patient now unconscious, thin built, and tachypnoeic, not responding to pain stimulus. Pupils bilaterally sluggish reaction to Light. Right Eye showed Exposure Keratitis. Patient is on tracheostomy tube ventilation. Limbs are flaccid, extended, hypotonic. Deep tendon reflexes present. Plantar reflex partial flexor response in both feet.
Opinion: Patient is in unconscious state since the accident with chronic cachexia.
6. In view of the above, there appears to be no dispute of facts. The petitioner's husband is in coma. 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. Though the petitioner could have approached the jurisdictional Civil Court by way of common law remedy, in view of the report of the 3rd respondent and the urgency expressed, coupled with the G.C. No.: 1/16 fact that there is no dispute on facts, this Court is inclined to consider the prayer sought by the petitioner."
17.The aforesaid judgment squarely applies to the facts of the present petition. Thus, in the opinion of the court, the petition of the petitioner is liable to be dismissed. The same is accordingly dismissed.
18.Though in the aforesaid writ petition, the Hon'ble Madras High Court, after considering the peculiar facts of the case and exercising the powers under writ jurisdiction, has appointed the petitioner as guardian of her husband. The said order was passed under writ jurisdiction of the Hon'ble Madras High Court which power does not vest and within the domain of this court.
19.In view of my aforesaid discussion, the present petition is dismissed and the petitioner is advised to approach the appropriate forum in this regard. File be consigned to record room.
Announced in the open court On 06.10.2016 ( Anurag Sain) Addl. District Judge02 (East) Karkardooma Courts, Delhi G.C. No.: 1/16 G.C. No.: 01/16 06.10.2016 Present None.
Vide separate judgment announced in the open court today, the present petition is dismissed and the petitioner is advised to approach the appropriate forum in this regard. File be consigned to record room.
( Anurag Sain) Addl. District Judge02 (East) Karkardooma Courts, Delhi G.C. No.: 1/16