Allahabad High Court
Fatima Rizvi vs Union Of India Thru. Secy. Deptt. Social ... on 2 July, 2024
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:44864-DB Court No. - 3 Case :- WRIT - C No. - 4608 of 2024 Petitioner :- Fatima Rizvi Respondent :- Union Of India Thru. Secy. Deptt. Social Justice And Empowerment, New Delhi And Others Counsel for Petitioner :- Pritish Kumar,Amal Rastogi Counsel for Respondent :- A.S.G.I.,Aishvarya Mathur,C.S.C. Hon'ble Mrs. Sangeeta Chandra,J.
Hon'ble Shree Prakash Singh,J.
1. Heard.
2. Learned counsel for the petitioner has pointed out order dated 23.05.2024 passed by this Court.
3. Learned Standing Counsel has produced before this Court report sent by the Chief Medical Officer, Lucknow dated 26.06.2024. In the said report/ letter, mention has been made of a medical board having been constituted of a Psychiatrist, Physician and a Neurosurgeon. The said medical board had visited the petitioner's husband at his residence and had submitted a report on 28.05.2024. The medical team had found that the patient Syed Zafar Mahmood Rizvi, son of Syed Mahmood Ali Rizvi, was initially admitted in Sahara Hospital and Dr. Mazhar Husain, Neurosurgeon had operated upon him on 24.12.2015. He was discharged from hospital on 11.02.2016, but at the time of discharge the patient was not in a condition to put his signatures on any relevant papers and also not in a condition to carry out his daily routine work independently on his own. At the time of his medical examination by the team constituted by the Chief Medical Officer, it was found that Tracheostomy was done and a tube had also been placed in his nose for feeding him and he could not pass urine on his own and needed the help from another tube. He cannot be fed regular food though his mouth. He has been found in a condition which has been described in the said report as G.C.S. E4VTM4, BILATERAL UMN SPASM UPPER LIMBS, LOWER LIMBS IN SPASTIC CONDITION, BILATERAL NORMAL SIZE NORMAL REACTION PUPILS, BILATERAL PLANTER REFLEX EXTENSOR RESPONSE. At the time of examination, he was not oriented to time, place and person and was not mentally fit also. He was not fully conscious to speak or sign and he needed an attendant to take care of him. Such report dated 26.06.2024 is kept on record.
4. A perusal of the medical report shows that the petitioner's husband is in comatose and vegetative state and is not in a state to take any decision on his own. He needs a guardian/ attendant to take care of him and his property and his other affairs. Neither under the Medical Health Act nor under the Guardian and Wealth Act, 1890 there is any provision for appointment of any guardian in such situation. This Court has been apprised of a Co-ordinate Division Bench of this Court at Allahabad in Pooja Sharma vs. State of U.P. and two others reported in 2023 (5) AWC 4880. The said writ was filed by the wife of such a patient praying that she be appointed as his guardian. The Court had initially directed a team of medical experts to be constituted in the matter. The medical expert team having examined the patient had submitted a report regarding the vegetative and comatose state of husband of the petitioner. The Court had thereafter given consideration to the statutory provisions and also the United Nations Convention and came to a conclusion that the Court can nominate a representative to such a patient to ensure that his rights are well protected and taken care of. After referring to the judgment rendered by the Hon'ble Supreme Court in Aruna Ramchandra Shanbaug vs. Union of India and others reported in 2011 (4) SCC 454 and two other judgments rendered by the Supreme Court of Canada and Supreme Court of New South Wales and judgments rendered by the Co-ordinate High Court Benches of Bombay High Court and also High Court Judicature at Delhi, wherein the Courts had appointed the petitioner Smt. Pooja Sharma wife of Vikas Sharma, the patient, as guardian of her husband, The operative portion of the judgment rendered by the Co-ordinate Bench as mentioned in paragraph 55 of the aforecited judgment is being quoted herein below:-
"(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 this Court. This amount should be invested in a fixed deposit so that the petitioner gets the maximum interest. Registrar General is further directed to request the bank to remit Rs.50,000/- every month in the account whose details are being mentioned below, as it would be sufficient enough to meet out the medical expenses of the husband of the petitioner : Account holder's name : Pooja Sharma Account Number : 20163256946 Branch : Dwarka Sector 7, New Delhi Bank : State Bank of India IFSC Code : SBIN0011565
(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 this Court for issuance of proper direction and for removal of the guardian."
5. In the case of the petitioner before this Court the prayer is limited for issuance of a mandamus appointing the petitioner- Fatima Rizvi wife of Syed Zafar Mahmood Rizvi, as his guardian to protect his interest, to administer bank accounts including Demat account, investments, etc. and in the event of necessity to sell the immovable property standing in his name and to use the proceeds towards his medical treatment and towards family welfare expense.
6. We are of the considered opinion that the writ petition deserves to be allowed and the prayer made aforesaid deserves to be granted.
7. Consequently, we appoint the petitioner- Fatima Rizvi as the guardian of her husband- Syed Zafar Mahmood Rizvi. 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 husbandSyed Zafar Mahmood Rizvi. She will be allowed to operate bank accounts ofSyed Zafar Mahmood Rizvi and to sell immovable property belonging to the husband with the caveat that sale proceeds shall be kept in an interest bearing account in a Nationalized Bank and will be utilized only for his medical treatment and towards family welfare expense. 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 this Court for issuance of proper direction and for removal of the guardian.
8. The writ petition stands allowed.
(Shree Prakash Singh, J.) (Mrs. Sangeeta Chandra, J.) Order Date :- 2.7.2024 Arnima