Madras High Court
R.Usha vs The State Of Tamil Nadu on 5 February, 2021
Author: Abdul Quddhose
Bench: Abdul Quddhose
W.P. No.13060 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.02.2021
CORAM
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
W.P. No.13060 of 2020
and W.M.P. Nos.16188 and 16191 of 2020
1.R.Usha
2.R.Nithya
3.R.Niranjana ... Petitioners
Vs
1. The State of Tamil Nadu, represented
by its Secretary to Government,
Health and Family Welfare Department,
Fort St.George, Chennai 600 009.
2. The Collector,
Chairman of the Local Level Committee,
Constituted under National Trust for Welfare of
Persons with Autism, Cerebral Patsy Mentally
Retarded and Multiple Disability Act, 1999,
Singaravelan Maligai,
62, Rajaji Salai, 4th Floor, Chennai 600 001.
3.The District Level Disability Officer,
Local Level Committee Member
Constituted under National Trust for Welfare of
Persons with Autism, Cerebral Patsy Mentally
Retarded and Multiple Disability Act, 1999,
Ashok Pillar Main Road,
K.K.Nagar, Chennai 600 078.
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W.P. No.13060 of 2020
4. The Dean
Rajiv Gandhi Medical College and Hospital,
Chennai 600 003.
5.The Tahsildar,
Aminjikarai Taluk Office,
Chennai ... Respondents
Prayer: Petition filed under Article 226 of the Constitution of India praying
for the issuance of a writ of declaration, declaring petitioner as the guardian
of the movable and immovable assets and estate of Sri.K.Ramasubramanian
described in the annexure of the application dated 17.06.2020 filed with the
2nd and 3rd respondents holding her entitled to deal with the same in
accordance with law.
For petitioner ... Mr.Rameshsrinivasan
for Mr.A,Thiyagarajan
For respondents ... Mr.V,Shanmugasunder
Special Government Pleader
ORDER
The instant case involves a desperate family, who are short of financial means are seeking for appointment of a guardian in respect of his assets for a coma patient, who requires constant medical treatment which involves huge costs.
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2. (i) The petitioners are the wife and children of a coma patient, named, Dr.K.Ramasubramanian, who is a Doctorate in Environmental Science. According to the petitioners, he is the sole bread winner, but unfortunately, he suffered cardiac arrest on 25.08.2019 and thereafter, his condition was categorised as a Hypoxic Ischemic Encephalopathy. According to the petitioners, Dr.K.Ramasubramanian is now in a vegetative state and unable to carry on his regular activities like a normal person. It is the case of the petitioners that Dr.K.Ramasubramanian, the Coma patient owns several properties and bank accounts with sufficient funds for his medical expenses and also to pay for his family's needs. But, however, according to the petitioners, the Banks, in which, Dr.K.Ramasubramanian is having bank accounts, are refusing to allow the petitioners to operate his accounts on his behalf.
(ii) The petitioners have submitted an application on 17.06.2020 to the respondents 2 and 3 for appointing the first petitioner as guardian under Section 14 of the National Trust for Welfare of Persons with Autism, Cerbral Palsy Mentally Retarded and Multiple Disability Act, 1999, read 3/17 https://www.mhc.tn.gov.in/judis/ W.P. No.13060 of 2020 with Rule 16(1) of the National Trust for Welfare of Persons with Autism, Cerbral Palsy Mentally Retarded and Multiple Disability Rules, 1999. According to the petitioners, despite the said application, there was no response from the respondents 2 and 3. According to the petitioners, there is no provision under any Legislation for appointment of a guardian for a person in Coma. Hence, according to them, they have no other alternative except to approach this Court under Article 226 of the Constitution of India, seeking for an extraordinary relief to declare the first petitioner, who is the wife of Dr.K.Ramasubramanian as his guardian. It is also stated in the affidavit filed in support of this Writ Petition that the respondents 2 and 3 also do not have any objection for appointing the first petitioner as guardian for Dr.K.Ramasubramanian.
(iii) In the affidavit filed in support of this Writ Petition, the petitioners have also referred to various Legislations including (1) Mental Health Act, 1987, Mental Health Care Act, 2017, Persons with Disabilities (Equal Opportunities, Protection of Rights and Field Participation) Act, 1995, National Trust for the Welfare of Persons with Autism, Cerebral 4/17 https://www.mhc.tn.gov.in/judis/ W.P. No.13060 of 2020 Palsy, Mental Retardation and Multiple Disabilities Act, 1999 and would submit that none of the statutes enables any person to be appointed as a guardian in respect of the properties belonging to a coma patient. In such circumstances, this Writ Petition has been filed for a declaration to declare the first petitioner as a guardian of the movables and immovables assets and estate of Dr.K.Ramasubramanian, the Coma patient, who is presently in a vegetative state of mind.
3. Heard Mr.Ramesh Srinivasan, for Mr.A.Thiyagarajan, learned counsel for the petitioners and Mr.V.Shanmugasundar, learned Special Government Pleader for the respondents.
4. The learned counsel for the petitioners drew the attention of this Court to various judgments passed by different High Courts in identical matters. He first drew the attention of this Court to a judgment of the Delhi High Court in the case of Vandana Tyagi and another -vs- Government of National Capital Territory of Delhi and Others, reported in 2020 SCC Online Del 32 and in particular, he referred to paragraph 61, which reads as 5/17 https://www.mhc.tn.gov.in/judis/ W.P. No.13060 of 2020 follows:-
"61. Insofar as the RPWD Act is concerned, it was enacted with the view to give effect to the United Nations Conventions on the rights of persons with disabilities and for matters connected therewith or incidental thereto. The United Nations General Assembly adopted the aforementioned convention on 13.12.2006. India is a signatory to this convention which was ratified by it on 01.10.2007. The convention came into effect from 03.05.2008. Though, India enacted the PWD Act in 1995, subsequent learning propelled India to adopt a rights based approach. Consequent thereto, the PWD Act, as adverted to above, was repealed and RPWD Act was enacted. While, this Act, inter alia, makes provisions for rights and entitlements of persons with disability, persons with benchmark disability, and persons with disability with high support needs, there appears to be no provision in this statute concerning persons in comatose state. It is relevant to note that Section 14 of the RPWD Act makes a provision for guardianship with respect to persons with disability. The definition provided under Section 2(s) of the very same Act, qua persons with disability, does not cover a person, who is in comatose state:
“2. Definitions.-
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(s) “person with disability” means a person with long term physical, mental, intellectual, or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others.”
5. He then drew the attention of this Court to a Full Bench judgment of the Kerala High Court in the case of Shobha Gopalakrishnan -vs-State 6/17 https://www.mhc.tn.gov.in/judis/ W.P. No.13060 of 2020 of Kerala, reported in 2019 SCC Online Ker 739 and in particular, he referred to paragraph 42, which reads as follows:
"42. Considering the role of this Court, jurisdiction under Article 226 of the Constitution of India springs up, when no remedy is provided under any Statute to persons like patients in ‘comatose state’. It is something like ‘parens patriae’ jurisdiction. A reference to the verdict in Nothman v. Barnet London Borough Council, [1978 (1) WLR 220] (at
228) is also relevant. In such cases, it is often said, Courts have to do what the Parliament would have done. A reference to the verdict in Surjit Singh Karla v. Union of India [1991 (2) SCC 87 explaining the principle of ‘causes omissus’ is also brought to the notice of this Court; to the effect that if it is an accidental omission, court can supply/fill up the gap. This Court however does not find it appropriate to “re-write” the provision, as it is within the exclusive domain of the Parliament. This is more so, when the relevant statutes like Mental Health Act, 1987 and PWD Act, 1995 came to be repealed, on introducing the new legislations, such as the Mental Healthcare Act 2017 and The Rights of persons with Disabilities Act, 2016 in conformity with the mandate of U.N. Convention, 2006. This Court does not say anything whether any amendment is necessary, also in respect of the National Trust Act for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (National Trust Act, 1999) with reference to the U.N. Convention 2006. It is for the Government to consider and take appropriate steps in this regard, as it is never for the Court to encroach into the forbidden field. This Court would only like to make it clear that, in so far as the case of a patient lying in ‘comatose state’ is not covered by any of the statutes, (as discussed above), for appointment of a Guardian, the petitioners are justified in approaching this court seeking to invoke the power under Article 226 of the Constitution of India. It is declared accordingly."7/17
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6. The learned counsel for the petitioners also drew the attention of this Court to the orders passed by this Court in identical matters, which are as follows:-
(a) Order dated 06.01.2016 in W.P.No.28435 of 2015 and the relevant paragraph is 4, which reads as follows.
"4. In view of the above, there appears to be no dispute on 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 fact that there is no dispute on facts, this Court is inclined to consider the prayer sought by the petitioner."
(b) Order dated 23.02.2016 passed by this Court in W.P.No.4358 of 2016 in the case of Sailaja -vs- The State of Tamil Nadu and others, reported in 2016 SCC Online Mad 5171 and the relevant paragraph is 6, which reads as follows:
"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 8/17 https://www.mhc.tn.gov.in/judis/ W.P. No.13060 of 2020 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 fact that there is no dispute on facts, this Court is inclined to consider the prayer sought by the petitioner".
(c) Order dated 31.07.2018 passed in W.P.No.16819 of 2018 and the relevant paragraph is 4, which reads as follows:
"4. In view of the joint report submitted by the Tahsildar and Executive Magistrate, Myalpore Taluk Office, Chennai and Prof.Dr.M.Jawahar, MD. DM (Neuro), NV Unit Chief, Institute of Neurology, Rajiv Gandhi Government General Hospital, Chennai, the 1st petitioner, who is the wife of the 5th respondent, is hereby appointed as a Legal Guardian of the 5th respondent, namely, Mr.S.Sekaran, S/o.Late K.Subba Rao residing at New No.184, Old No.180, Indira Gardens, Peters Road, Royapettah, Chennai-
14. Therefore, the respondents 1 to 4 are hereby directed to recognize the 1st petitioner as a Legal Guardian of the 5th respondent and also to execute and register a deed of Conveyance and other deeds on the properties belonging to the 5th respondent, particularly, in respect of his 1/9th share over the property bearing Old No.3, New No.7, Govardhan Singh Street, Royapettah, Chennai- 14, comprised in Old Survey Nos.3045 and 3046, R.S.No.133/9 of Myalpore Village. The said exercise shall be completed within a period of two weeks from the date of receipt of a copy of this Order."
7. As seen from the aforesaid decisions, none of the statutes 9/17 https://www.mhc.tn.gov.in/judis/ W.P. No.13060 of 2020 provide for appointment of a guardian for the administration of properties belonging to a coma patient. A direction was issued by this Court on 17.09.2020 to the fourth respondent directing him to appoint a team of Doctors, who shall examine Dr.K.Ramasubramanian, the Coma patient and submit a medical report thereafter. As directed by this Court, a report dated 01.11.2020 was placed before this Court by Dr.E.Theranirajan, Dean, Rajiv Gandhi Government General Hospital, Chennai 03, which confirms that Dr.K.Ramasubramanian is now in a stage of coma. The brief details of the report dated 01.11.2020 are extracted hereunder:-
On examination General Examination:
Patient is found lying on supine posture in bed, appears appropriate to his age Patient is in an unconscious state with partially opened eyes, Afebrile, not dyspnoeic, not tachypoenic not jaundiced, not cyanosed, not pale, no pedal odema, Bed sore is present on his low back grade 4 Pulse : 83 per minute regular rhythm, felt in all Peripheral vessels BP : 130/80 mm/HG 10/17 https://www.mhc.tn.gov.in/judis/ W.P. No.13060 of 2020 sPo2 : 96% in room air Respiratory rate : 24/Minute Tracheostomy tube insitu with temporary closure On pylestube feeding On continuous bladder drain On clinical systemic examination Cardiovascular system : Heard sounds S1 S2 heard normally, no additional sounds or Murmur Respiratory system : Bilateral air entry present, no adventitious sound present Abdominal system : Soft, Norma Bowel sounds heard Central nervous system :
Patient is in unconscious state with eyes partially opened, responding slugglishly to very deep painful stimuli. Not responding to vocal stimuli, no spontaneous vocalization noted.
Bilateral pupils slightly dilated (4mm). Poorly reacting to light. Billateral Immature cataract is present. Dolls eye movement could not be assessed due restriction of neck movements.
Nasolabial fold on the right side of face is flat. Bilateral upper limb muscles are spastic with forearm and fingers in flexed position going for contractures Bilateral lower limb muscles, wasting is present in calf muscle and lower thigh muscles. No involuntary movement were noted anywhere in the body.11/17
https://www.mhc.tn.gov.in/judis/ W.P. No.13060 of 2020 All reflexes are brisk except ankle refles bilaterally absent No clonus Plantar bilaterally extensor On mental Status examination: Since patient is in an unconscious state and not communicative (mute), not touch with surroundings, rapport and eye contact not made, not responding to verbal and visual stimuli with impaired psychomotor activity, orientation could not be assessed and further detailed Mental status examination could not be done neurposhychological assessment report dated 19.11.2020 by clinical psychologist also reports that assessment could not be done.
Blood investigation done on 30.10.2020 reveals he is a diabetic with mild anemia and leukocytosis X-ray chest normal study EEG dated 29.10.2020 shows occasional slow waves present in both hemisphere Encephalomalaciccysts due to hypoxic ischemic sequelae Patient is in a vegetative state due to post hypoxic ischemic encephalopathy sequelae for more than one year and unlikely to improve in the central nervous system functions further."
8. As seen from the medical report, it is clear that Dr.K.Ramasubramanian is now in stage of coma. The petitioners cannot be left remediless when there is no statutory provision available for appointment of a guardian to administer the movable and immovable properties of a coma patient. The doctrine of parens patriae will come into 12/17 https://www.mhc.tn.gov.in/judis/ W.P. No.13060 of 2020 play and hence, this Court cannot shut its eyes when there is undisputed evidence placed before it to show that the properties both movable and immovables belonging to a coma patient could not be administered due to non-availability of a statutory provisions enabling one of his family members to be appointed as his guardian for the said purpose that too when the family requires money to support his medical treatment. Hence, this Court is of the considered view that a guardian will have to be necessarily appointed on his behalf. The first petitioner is admittedly the wife of Dr.K.Ramasubramanian and therefore, she will be the most suitable person to be appointed as guardian for Dr.K.Ramasubramanian
9. For the foregoing reasons, this Court declares that Mrs.R.Usha, the first petitioner herein, is the guardian for the movable and immovable assets and estate including bank accounts maintained by Dr.K.Ramasubramanian.
However, the guardian appointed by this Court shall act as a true guardian for Dr.K.Ramasubramanian and anything detrimental to his interest should not done by the guardian. This Court deems it fit to impose certain conditions which shall be necessarily fulfilled by the guardian, which are 13/17 https://www.mhc.tn.gov.in/judis/ W.P. No.13060 of 2020 incorporated hereunder:
(a) The guardian appointed by this Court shall disclose the particulars of the properties both movable and immovables owned by Dr.K.Ramasubramanian, the Coma patient before the Registry of this Court within a period of four weeks from the date of receipt of a copy of this order.
(b) Dr.K.Ramasubramanian, the coma patient shall be examined by a Government Doctor and a report to that effect from the said Government Doctor shall be filed before the Registry of this Court every four months.
(c) The guardian appointed by this Court shall file a statement before the Registry of this Court every six months, disclosing the bank balances of Dr.K.Ramasubramanian, the coma patient available with various banks/financial institutions.
(d) The guardian appointed by this Court shall render true accounts of the funds belonging to Dr.K.Ramasubramanian, the coma patient and shall file a report before the Registry of this Court every six months.
(e) If it is brought to the notice of any Court / any statutory 14/17 https://www.mhc.tn.gov.in/judis/ W.P. No.13060 of 2020 authority about misuse of funds belonging to Dr.K.Ramasubramanian, the coma patient, the said Court / authority is empowered to cancel the guardianship after holding a proper enquiry.
(f) The transactions in respect of the property of the person lying in coma state by the guardian shall be strictly in accordance with the relevant provisions of law.
(g) If the guardian appointed by this Court is found to be abusing the power or neglects or acts contrary to the best interest of Dr.K.Ramasubramanian, the coma patient, any relative or next friend may apply to before the appropriate Court for removal of such guardian.
10. With the aforesaid directions, this Writ Petition is disposed of. No costs. Consequently, connected miscellaneous petitions are closed.
05.02.2021 Index: Yes/ No Internet: Yes/No Speaking Order/Non-speaking Order srn 15/17 https://www.mhc.tn.gov.in/judis/ W.P. No.13060 of 2020 To
1. The Secretary to Government, State of Tamil Nadu, Health and Family Welfare Department, Fort St.George, Chennai 600 009.
2. The Collector, Chairman of the Local Level Committee, Constituted under National Trust for Welfare of Persons with Autism, Cerebral Patsy Mentally Retarded and Multiple Disability Act, 1999, Singaravelan Maligai, 62, Rajaji Salai, 4th Floor, Chennai 600 001.
3.The District Level Disability Officer, Local Level Committee Member Constituted under National Trust for Welfare of Persons with Autism, Cerebral Patsy Mentally Retarded and Multiple Disability Act, 1999, Ashok Pillar Main Road, K.K.Nagar, Chennai 600 078.
4. The Dean Rajiv Gandhi Medical College and Hospital, Chennai 600 003.
5.The Tahsildar, Aminjikarai Taluk Office, Chennai 16/17 https://www.mhc.tn.gov.in/judis/ W.P. No.13060 of 2020 ABDUL QUDDHOSE, J.
srn W.P. No.13060 of 2020 and W.M.P. Nos.16188 and 16191 of 2020 05.02.2021 17/17 https://www.mhc.tn.gov.in/judis/