Delhi District Court
Manisha vs Govt Of Nct Of Delhi on 15 October, 2024
In the Court of Sh. Deepanker Mohan
District Judge-04, Shahdara District,
Karkardooma Courts, Delhi
GP No. 4/2020
In the matter of :-
Smt. Manisha
D/o Sh. Braham Prakash
R/o E-4/68, Nand Nagri,
Delhi-110093 ..... Petitioner
Versus
Govt. of NCT of Delhi
Through Chief Secretary
Players Building
ITO, New Delhi-02 .... Respondent
JUDGMENT
1. GP No. : 4/2020
2. Under Section : Under Order XXII Rule 4 r/w
Section 25 of Guardian & Wards
Act as well as Section 52/53 of
Mental Health Act, 1987 for
appointment & to declare petitioner
as guardian of Sh. Satish Kumar S/o
Sh. Munna Lal.
3. Date of Institution : 14/09/2020
4. Reserved for Judgment : 20/09/2024
5. Judgment : 15/10/2024
1. Vide this judgment, this court shall dispose of the petition under Order XXII Rule 4 r/w Section 25 of Guardian & Wards Act as well as Section 52/53 of Mental Health Act, 1987 for appointment & to declare GP No.4/2020 Manisha Vs. Govt. of NCT of Delhi Page 1 of 10 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.10.15 18:02:12 +0530 petitioner as guardian of Sh. Satish Kumar S/o Sh. Munna Lal filed by petitioner against respondent.
2. The necessary facts for disposal of the present case are as follows :-
I. It is stated that petitioner is real niece of Sh. Satish Kumar who is mentally retarded person. Certificate of mental disability of Sh. Satish Kumar issued by IHBAS Hospital. It is stated that a petition was instituted before Central Administrative Tribunal, Principal Bench, New Delhi by Sh. Satish Kumar for grant of pension of late Sh. Munna Lal and Smt. Krishna Devi mother of late Sh. Munna Lal. It is stated that during the course of hearing vide order dataed 18.02.2020, Hon'ble Tribunal observed that a petition for grant of pension in favour of Sh. Satish Kumar cannot be instituted and maintained by him particularly in that eventuality Satish Kumar has been stated t be mentally retarded. It is further observed by Hon'ble Tribunal that petitioner may be instituted through guardian/next friend.
II. It is not in dispute that Sh. Satish Kumar is a major person, however, unmarried and mentally retarded person as per his medical record. It is stated that he cannot maintain himself and also cannot look after his personal needs. It is stated that Sh. Satish Kumar is totally dependent upon petitioner for his needs and day to day care. It is stated that petitioner is competent to take care of Sh. Satish Kumar who is her real uncle. It is stated that petitioner undertakes to act for benefits of Sh. Satish Kumar and his for betterment in taking care of his health and needs and to secure his life.
3. Notice in the present petition was issued upon the respondent and GP No.4/2020 Manisha Vs. Govt. of NCT of Delhi Page 2 of 10 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.10.15 18:02:44 +0530 SDM concerned vide order dated 05.10.2020. Citation of the petition to be published in the newspapers 'Statesman' 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 also ordered to be issued vide order dated 05.10.2020.
4. On 23.12.2021, an application under Order VI Rule 17 r/w Section 151 CPC moved on behalf of petitioner for seeking insertion of Section 52/53 of Mental Health Act in the petition and the said application was allowed vide order dated 27.01.2022.
5. On 17.09.2022, an application under Order VI Rule 17 r/w Section 151 CPC moved on behalf of petitioner for amendment of plaint and the same was allowed vide order dated 17.04.2022. Notice of the amended petition was issued upon respondent. Citation of the petition to be published in the newspapers 'Hindustan Times, Delhi' and citation to be affixed on the notice board of the court was also issued. SDM concerned was also directed to verify the factum of death of late Sh. Munna Lal and Sm. Krishna Devi and about their legal heirs.
6. An application U/s 151/152 CPC was filed on behalf of petitioner seeking change of newspaper and the same was allowed vide order dated 29.11.2022. Citation of the petition to be published in the newspapers 'The Statesman, Delhi'.
7. Respondent had been duly served. Citation was also duly published in the newspaper "The Statesman" dated 02.03.2024. SDM report was also filed on 25.04.2024.
GP No.4/2020 Manisha Vs. Govt. of NCT of Delhi Page 3 of 10
Digitally
signed by
DEEPANKER
DEEPANKER MOHAN
MOHAN Date:
2024.10.15
18:02:50
+0530
8. 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. On 21.05.2024, she deposed that she is real niece of Satish Kumar who is mentally restarted person. She deposed that Sh. Satish Kumar is unmarried. She deposed that she is taking care of Satish Kumar who is totally dependent upon her. She deposed that she is graduate and undertake to care of Satish Kumar in future. She deposed that she is qualifying to get herself appointed/declare guardian of Sh. Satish Kumar under the proper certificate. She relied upon the documents i.e. (1) Ex.PW1/A- Original certificate no.MI-93/2019 issued from Institute of Human Behaviour & Allied Science dated 21.09.2015, (2) Ex.PW1/B- Copy of Aadhar card and (3) Ex.PW1/C- Attested true copy of order sheet dated 05.02.2020 of the Central Administrative Tribunal Principal Bench, New Delhi titled as Satish Kumar Vs. EDM along with envelop. PW-1 was not cross examined by respondent despite opportunity granted, therefore right of respondent to cross examine PW-1 was closed.
II. PW-2 Dr. Naveen Grover deposed as follows which is as under:-
i. On 01.08.2024, PW-2 Dr. Naveen Grover, Assistant Professor Clinical Psychology, IHBAS, Delhi-110095, who had brought the summon record i.e. Ex.PW1/A. He deposed that he compared with a copy Ex.PW1/A with records of the hospital. He deposed that copy of the same certificate issued by the hospital on 21.09.2019 vide certificate no.MI- 93/2019 under the signature of Dr. Shubangi Singh, Dr. Naveen Grover and Dr. Deepak Kumar Deputy Medical Superintendant. He deposed that document Ex.PW1/A is correct and genuine document as per the record of GP No.4/2020 Manisha Vs. Govt. of NCT of Delhi Page 4 of 10 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.10.15 18:02:57 +0530 hospital. He deposed that as per record and his opinion, Mr. Satish Kumar required assistance of someone to lead his day to day normal life and activities of daily routine. PW-2 was not cross examined by respondent despite opportunity granted, therefore right of respondent to cross examine PW-2 was closed.
9. On 01.08.2024, petitioner's evidence was closed and the matter was listed for final arguments.
10. Final arguments were heard on 20.09.2024.
11. The petitioner being the niece of Sh. Satish Kumar, filed the present petition for her appointment as guardian of Sh. Satish Kumar, who is diagnosed with "Psychosis with Seizure Disorder" - 71-99% (severe disability). PW-2, during his examination, has proved the disability certificate and further deposed that patient required assistance of someone to lead his day to day normal life and activities of daily routine.
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, 1999 (The National Trust Act, 1999) is to evolve procedure for the GP No.4/2020 Manisha Vs. Govt. of NCT of Delhi Page 5 of 10 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.10.15 18:03:01 +0530 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.
16. The Hon'ble High Court of Bombay in Rajni Hari Om Sharma Vs. GP No.4/2020 Manisha Vs. Govt. of NCT of Delhi Page 6 of 10 DEEPANKER MOHAN Digitally signed by DEEPANKER MOHAN Date: 2024.10.15 18:03:06 +0530 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 right and duty of the sovereign in public interest is to protect person under GP No.4/2020 Manisha Vs. Govt. of NCT of Delhi Page 7 of 10 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.10.15 18:03:11 +0530 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 Kin 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. Satish Kumar with "Psychosis with Seizure Disorder" - 71- 99% (severe disability) and issued disability certificate declaring disability and the statements of PW-1 and PW-2 and also considering the report of GP No.4/2020 Manisha Vs. Govt. of NCT of Delhi Page 8 of 10 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.10.15 18:03:17 +0530 SDM Seemapuri, District Shahdara, this court is of the view that it would be necessary for the petitioner who is niece of the said Sh. Satish Kumar, to be appointed as his guardian for taking all such decisions necessary and incidental for the welfare and benefit of the said Sh. Satish Kumar. This would also include appointment of the petitioner to be guardian of the said Sh. Satish Kumar to apply for the family pension of late Sh. Munna Lal and late Smt. Krishna Devi with the department and receive the family pension from the concerned department or bank, if allowed/granted to Sh. Satish Kumar, and utilize the said amount of family pension upon Sh. Satish Kumar for his welfare and fulfilling his daily needs including clothing, food, medicines etc. In view of the provision of Rights of Persons with Disability Act, 2016, the present appointment of the petitioner to be guardian of Sh. Satish Kumar 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 the concerned department or bank, on behalf of Sh. Satish Kumar and the amounts spent by her upon said Sh. Satish Kumar for his daily needs, to the Hon'ble Secretary of DLSA, Shahdara. The Hon'ble Secretary of DLSA, Shahdara is also requested to monitor the function/acts of Guardian of Sh. Satish Kumar and file its report. 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. Satish Kumar.
22. On fulfilling the necessary condition, the guardian certificate be issued in favour of petitioner, as per law. Ordered accordingly.
GP No.4/2020 Manisha Vs. Govt. of NCT of Delhi Page 9 of 10
Digitally
signed by
DEEPANKER
DEEPANKER MOHAN
MOHAN Date:
2024.10.15
18:03:21
+0530
23. Copy of the present order be sent to Hon'ble Secretary DLSA Shahdara for compliance. Hon'ble Secretary DLSA Shahdara is requested to 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.
DEEPANKER MOHAN Digitally signed by DEEPANKER MOHAN Announced in the open Court Date: 2024.10.15 18:03:29 +0530 on 15th October, 2024 (Deepanker Mohan) District Judge-04 Shahdara District/KKD Courts/Delhi 15.10.2024 GP No.4/2020 Manisha Vs. Govt. of NCT of Delhi Page 10 of 10