Delhi High Court - Orders
Smt. Kiran Singla And Ors vs The State (Nct) Of Delhi on 28 March, 2022
Author: Yashwant Varma
Bench: Yashwant Varma
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 2529/2022
SMT. KIRAN SINGLA AND ORS. ..... Petitioners
Through: Mr. Mahesh Kr. Tiwari and Ms.
Bishnu Prasad Tiwari, Advs.
versus
THE STATE (NCT) OF DELHI ..... Respondent
Through: Ms. Hetu Aora Sethi, ASC, GNCTD
with Mr. Siddarth Agarwal, Adv.
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
ORDER
% 28.03.2022
1. The first writ petitioner has approached this Court for her appointment as the guardian of her husband who remains in a comatose condition. She has been joined by her two daughters and the son. The petitioners Nos.2,3 & 4 have supported the grant of the prayers as made. The aforesaid stand was reiterated by those petitioners who appeared via video link when the matter was heard today.
2. The husband of the petitioner is stated to have remained in a vegetative state for the past more than four years. When the writ petition was initially entertained, the Court by its order of 09 February 2022 required the concerned SDM to undertake an enquiry, gather all material particulars and to evaluate the veracity of the assertions made by the petitioners here. The Court had also constituted a Medical Board ["Board"] to duly examine the husband of the petitioner and to submit a report with respect to his Signature Not Verified Digitally Signed By:RAJENDER SINGH KARKI Signing Date:30.03.2022 16:23:43 medical condition. That Board was also called upon to apprise the Court of whether the condition of the husband of the first petitioner would fall within the ambit of the Mental Healthcare Act, 2017 1 and/or the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 19992.
3. Pursuant to the directions so framed, the Medical Board has submitted its opinion in terms of a report dated 08 March 2022. The three member Board has opined that the patient has remained in a persistent vegetative state and that position prevails even today. It has also found that the condition and affliction would not fall within the ambit of 1999 and 2017 Acts.
4. The concerned District Magistrate has submitted a report setting out details of the immovable properties standing in the name of the husband of the first petitioner. The concerned SDM pursuant to the directions issued by this Court on 09 February 2022 and in terms of the status report which has been filed, has averred that a field enquiry was duly undertaken and the neighbours also duly interviewed.
5. The said status report apprises the Court that the husband of the petitioner is lying in a comatose state for years together and that it is the first petitioner who has been taking care of him. The children who are the petitioner nos. 2 to 4 are all residing in the United States of America. The son is stated to be providing for the expenses being incurred on the treatment and care of the father. A further report was also submitted on behalf of the GB Pant Hospital which has placed on the record the statements of 1 2017 Act 2 1999 Act Signature Not Verified Digitally Signed By:RAJENDER SINGH KARKI Signing Date:30.03.2022 16:23:43 neighbours who have reiterated the facts noticed hereinabove.
6. The question of appointment of guardians in cases where the patient fails to qualify the provisions made under the 1999 and 2017 enactments is no longer res-integra and was elaborately considered by a learned Judge of the Court in Vandana Tyagi and Anr. vs. Government of National Capital Territory of Delhi and Others3. Upon due consideration of the issues which would arise, the learned Judge proceeded to frame the following guidelines which would govern:-
"36. Guidelines
(i) A person(s) who seek(s) to be appointed as guardians vis-à-vis an individual, who is lying in comatose state, shall in their petition to the court disclose the details of all tangible and intangible assets of such an individual. The details as to their location and approximate market value shall also be disclosed. In case of bank accounts, stocks, shares, and debentures and other investments are concerned, material particulars will be provided.
(ii) The court will have the person lying in comatose examined by a duly constituted medical board which would include, inter alia, a neurologist.
(iii) The court will also direct the concerned SDM/Tehsildar in whose jurisdiction the person lying in comatose is said to be located to carry out an enquiry to establish the veracity of the assertion and to gather material particulars concerning the person(s) who approach the court for being appointed as guardians. The enquiry will, inter alia, gather information as regards the relationship that the person(s) who wish to be appointed as guardians has/have with the person lying in comatose state. Information with regard to the financial condition of persons wanting to be appointed as guardians shall also be collected apart from other aspects which may have a material bearing in their discharging the duties of a guardian. Any conflict of interest concerning the affairs of the person lying in comatose state will be brought to fore in the report generated during the course of the enquiry.
(iv) Ordinarily only that person will be appointed as guardian who is a spouse or a progeny of the person lying in comatose. The person seeking appointment as a guardian in his petition to the court will, however, 3 2020 SCC OnLine Del 32 Signature Not Verified Digitally Signed By:RAJENDER SINGH KARKI Signing Date:30.03.2022 16:23:43 disclose the particulars of all legal heirs of the person lying in comatose.
In the event, the person lying in comatose has neither a spouse nor any children or even any legal heirs or if he/she has such persons in his life but stands abandoned by them subject to the permission of the court his next friend who wishes to be appointed as a guardian can approach the court with such a request. In the alternative, the Court could direct the Department of Social Welfare, GNCTD to appoint a public official such as a Social Welfare Officer or a person holding equivalent rank to act as the guardian of the person lying in comatose state.
(v) Only that person shall be appointed as a guardian who is otherwise in law competent to act as a guardian.
(vi) The order directing appointment of a guardian shall specify the assets qua which the guardianship order is passed. The court will be empowered to modify the order and bring within its sweep other assets, if required, in the interest of the person lying in comatose state. In case liquid funds are not available and there is a requirement to sell the assets of the person lying in comatose state, upon the guardian approaching the court, necessary directions could be passed in that behalf.
(vii) The person appointed as a guardian will file every six (6) months (or within such period as the court may indicate in its order) a report with the Registrar General of this court. The report shall advert to the transactions undertaken by the guardian in respect of the assets of the person lying in comatose state. Besides this, the report shall also indicate the funds, if any, received by the guardian and their utilization for the purposes of maintaining the person lying in comatose state.
(viii) The Registrar General of this court will cause a separate register to be maintained which will set out inter alia the details of the proceedings, the particulars of the person appointed as a guardian and orders, if any, passed after the appointment of the guardian. Measures will also be taken by the Registrar General to preserve the reports filed by the guardian from time to time.
(ix) It will be open to the court to appoint a guardian either temporarily or for a limited period, as may be deemed fit.
(x) In the event, the guardian appointed by the court misuses his/her power or misappropriates, siphons or misutilizes the assets of the person lying in comatose state or fails to utilize the assets in the best interest of the person lying in comatose state, the court would have the power to remove the guardian and appoint another person in his/her place. The substituted person could also be a public officer such as a Social Welfare Officer or an officer holding an equivalent rank.
Signature Not Verified Digitally Signed By:RAJENDER SINGH KARKI Signing Date:30.03.2022 16:23:43(xi) The guardian appointed by the court shall intimate his appointment to the public official/Social Welfare Officer or officer of an equivalent rank designated by GNCTD. Both the guardian as well as the Registrar General of this court will cause a copy of the order of guardianship being served upon such officer. Such officer shall visit the person lying in comatose at least once in every quarter. The Social Welfare Officer will generate a report of his visit. In case the Social Welfare Officer finds that the guardian appointed by the court is not acting in the best interest of the person lying in comatose state, he will move the court, at the earliest, for seeking appropriate directions.
(xii) The guardian appointed by the court will ensure that the transactions entered into by him or her comport with the relevant provisions of the law.
(xiii) In case a relative or a next friend of the person lying in comatose state finds that the guardian is not acting in the best interest of the person lying in comatose state, such person will also have the locus to approach the court for issuance of appropriate directions and/or for removal of the guardian.
(xiv) In case, the guardian wishes to move the person lying in comatose state to another state or even to another country for the purposes of securing better medical treatment for the person lying in comatose state, he/she would approach the court for necessary permission before undertaking such an exercise."
7. The recordal of facts above clearly establishes that the husband of the petitioner has remained in a vegetative state and that the first petitioner is acting as the solitary care giver. The first writ petitioner happens to be directly related to the patient and is the wife. Her prayer for appointment as the guardian of his estate has been supported by the petitioner Nos. 2 to 4. In view of the aforesaid facts, the Court finds adequate material and justification to grant the prayers as sought.
8. Accordingly, the instant writ petition is allowed. The Court hereby appoints the petitioner Nos. 1 to act as the guardian of her husband. The petitioner No.1 shall consequently stand vested with the property of her husband and entitled to do all acts, deeds and things which would be Signature Not Verified Digitally Signed By:RAJENDER SINGH KARKI Signing Date:30.03.2022 16:23:43 required for the proper treatment, nursing care, welfare and benefit of the patient. The petitioner No.1 shall also be bound by the obligations and conditions as would stand imposed upon a guardian in law.
9. The respective parties shall be bound by all conditions formulated by the Court in Vandana Tyagi and more particularly clauses (vii) and (xi) of the directions as ultimately framed.
10. The Court further leaves it open to parties to seek discharge of this order if circumstances so warrant. All authorities shall be obliged to proceed in the matter further based upon the directions framed above.
11. The Court further reserves the right of any concerned party to approach the Court for such further directions/clarifications/modifications as the facts and circumstances may warrant.
YASHWANT VARMA, J.
MARCH 28, 2022/neha Signature Not Verified Digitally Signed By:RAJENDER SINGH KARKI Signing Date:30.03.2022 16:23:43