Latha T.B. and others v Union of India and others

**C. R.** ## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SATHISH NINAN MONDAY, THE 17TH DAY OF MAY 2021 / 18TH POUSHA, 1942 ## WP(C) NO.629 OF 2021 ## PETITIONERS: 1.LATHA T.B. @ LATHA RAVI, AGED 50, W/O MARASSERY RAVI, ELAMTHURUTHY DESOM, MARATHAKKARA VILLAGE, THRISSUR DISTRICT, PIN-680014. ## 2.VISALAKSHY P R, AGED 81, W/O MARASSERY MADHAVAN, RESIDING AT ELAMTHURUTHY DESOM, MARATHAKKARA VILLAGE, THRISSUR DISTRICT, PIN-680014. ## 3.RANJO, AGED 31, S/O MARASSERY RAVI, RESIDING AT ELAMTHURUTHY DESOM, MARATHAKKARA VILLAGE, THRISSUR DISTRICT, PIN-680014. ## 4.KRISHNA, AGED 24, S/O MARASSERY RAVI, RESIDING AT ELAMTHURUTHY DESOM, MARATHAKKARA VILLAGE, THRISSUR DISTRICT, PIN-680014. ## 5.KANAKAVALLY, AGED 28, D/O KOTTEKKATTIL SMITHA, KUTTUR VILLAGE AND DESOM, THRISSUR TALUK, THRISSUR DISTRICT, PIN-680013. ## 6.ANITHA, AGED 28, D/O MARASSERY VISALAKSHY, RESIDING AT ELAMTHURUTHY DESOM, MARATHAKKARA VILLAGE, THRISSUR DISTRICT, PIN-680014. BY ADVS SRI. G.SREEKUMAR (CHELUR) W. P. (C) No.629 of 2021 -: 2 :- ## RESPONDENTS: ## 1.UNION OF INDIA REPRESENTED BY SECRETARY TO THE GOVERNMENT, MINISTRY OF HEALTH AND FAMILY WELFARE, NEW DELHI-110001. ## 2.STATE OF KERALA REPRESENTED BY SECRETARY TO THE GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001. ## 3.THE DISTRICT COLLECTOR OFFICE OF THE DISTRICT COLLECTOR, FIRST FLOOR, CIVIL STATION, CIVIL LINES ROAD, KALYAN NAGAR, AYYANTHOLE, THRISSUR DISTRICT, PIN680003. ## 4.THE TAHSILDAR TOWN HALL, WEST PALACE ROAD, OPP.THRISSUR, CHEMBUKKAVU, THRISSUR DISTRICT, PIN-680020. ## 5.THE SUPERINTENDENT MEDICAL COLLEGE HOSPITAL, MEDICAL COLLEGE P O, THRISSUR DISTRICT, PIN-695011. ## * ADDL. R6 THE SUB DIVISIONAL MAGISTRATE, OFFICE OF THE SUB DIVISIONAL MAGISTRATE, COLLECTORATE, AYYANTHOLE, THRISSUR DISTRICT - 680003. *[ADDL. R6 IS IMPLEADED AS PER ORDERS OF THIS COURT ON IA 2/2021 IN WP(C) 629/2021 DATED 17.05.2021] AMICUS CURIAE SRI.RAMKUMAR NAMBIAR SMT.SATYASREE PRIYA THIS WRIT PETITION CIVIL HAVING BEEN FINALLY HEARD ON 17.05.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING : **C. R.** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = W. P. (C) No.629 of 2021 = = = = = = = = = = = = = = = = = = Dated this the 17[th] day of May, 2021** ## **J U D G M E N T** The writ petition is filed seeking appointment of the first petitioner as the guardian of Prameela A.M. (hereinafter referred to as “the ward”) who is stated to be a mentally ill person. 2. The second petitioner is the mother of the ward. The husband of the second petitioner viz. Marassery Madhavan is no more. In the wedlock, four children were born to them viz. Ravi, Smitha, Anitha and Prameela. Ravi is no more; his wife and children are petitioners 1, 3 and 4. Smitha is no more and her legal heir is the 5[th] petitioner. Anitha is the 6[th] petitioner and Prameela is the ward. 3. The State Medical Board attached to the Government Medical College Hospital, Thrissur has, as per Ext.P10 certificate, W. P. (C) No.629 of 2021 -: 2 :- certified that the ward suffers from _**schizophrenia**_ and has _**70% moderate permanent impairment in relation to her mental function**_ . The certificate (Exhibit P10) is dated 06.02.2018. 4. Huge amounts are being expended for treatment of the ward, and the petitioners lack sufficient financial resources to meet the same. The ward, along with the second petitioner owns 2 Ares 2 Sq.m. (5 cents) of property, in Marathakkara village, obtained under Partition Deed No.4222/2002 of Thrissur SRO, as included in the 'A' schedule therein. The property needs to be sold to meet the financial requirements for maintenance and medical expenses of the ward. The property cannot be dealt with unless a guardian is appointed for the ward by the Court. The mother of the ward, who is the second petitioner, is aged and suffers from severe health issues; the sixth petitioner, who is the sister of the ward, is entangled in family W. P. (C) No.629 of 2021 -: 3 :- issues. The petitioners had approached the District Court, Thrissur, in OP(MH) 23/2019 under the Mental Health Act, 1987 seeking appointment of the first petitioner herein as the guardian of the ward. Since the Mental Health Act, 1987 was repealed even prior to the filing of the said Original Petition, the same was, as evidenced by Ext.P11, dismissed as not maintainable. It is thus compelled, the petitioners have approached this Court seeking for appointment of the first petitioner, who is the sister-in-law of the ward, as the guardian. 5. Heard Sri.G.Sreekumar Chelur, learned counsel for the petitioners, Sri.Ramkumar Nambiar and Smt.Sathyasree Priya, the learned Amicus Curiae and Sri.N.Manoj Kumar, the learned Special Government Pleader. 6. The petitioners have approached this Court with the prayer for appointment of guardian for the ward on the premise that, W. P. (C) No.629 of 2021 -: 4 :- consequent on the repeal of the Mental Health Act, 1987 there is no other statute occupying the field, enabling appointment of guardian for a mentally ill person. 7. In the matter of appointment of guardian for a mentally ill person, the Mental Health Act, 1987 governed the field. It provided for appointment of guardian for the person and property of the ward as the circumstance warrant. The Mental Health Act, 1987 was repealed by the Mental Health Care Act, 2017. The Act acknowledges the dignity and rights of the mentally ill and provides for their full participation in the society and community life. However, the Act does not provide for appointment of guardian for the person or property of a mentally ill person in case of a contingency. Where to look upon in such a situation, is the issue. There are, at present, two statutes which provide for appointment of guardian for persons with W. P. (C) No.629 of 2021 -: 5 :- mental health issues namely, **(i)** _**The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999**_ (herein after referred to as _**“the National Trust Act”**_ ) and **(ii)** _**The Rights of Persons with Disabilities Act, 2016**_ (herein after referred to as _**“the PwD Act”**_ ). Section 14 of the respective Acts provide for appointment of guardian. For the sake of completeness, the provisions are extracted hereunder:- (a) Section 14 of the National Trust Act reads thus:- ## “ **14. Appointment for guardianship** (1) A parent of a person with disability or his relative may make an application to the local level committee for appointment of any person of his choice to act as a guardian of the persons with disability. (2) Any registered organization may make an application in the prescribed form to the local level committee for appointment of a guardian for a person with disability. PROVIDED that no such application shall be entertained by the local level committee, unless the W. P. (C) No.629 of 2021 -: 6 :- consent of the guardian of the disabled person is also obtained. (3) While considering the application for appointment of a guardian, the local level committee shall consider- (a) whether the person with disability needs a guardian ; (b) the purpose for which the guardianship is required for person with disability. (4) the local level committee shall receive, process and decide applications received under subsections (1) and (2), in such manner as may be determined by regulations. PROVIDED that while making recommendation for the appointment of a guardian, the local level committee shall provide for the obligations which are to be fulfilled by the guardian. (5) The local level committee shall send to the Board the particulars of the applications received by it and orders passed thereon at such interval as may be determined by regulations." W. P. (C) No.629 of 2021 -: 7 :- (b) Section 14 of the PwD Act reads thus :- ## "14. **Provision for guardianship** (1) Notwithstanding anything contained in any other law for the time being in force, on and from the date of commencement of this Act, where a district court or any designated authority, as notified by the State Government, finds that a person with disability, who had been provided adequate and appropriate support but is unable to take legally binding decisions, may be provided further support of a limited guardian to take legally binding decisions on his behalf in consultation with such person, in such manner, as may be prescribed by the State Government: PROVIDED that the District Court or the designated authority, as the case may be, may grant total support to the person with disability requiring such support or where the limited guardianship is to be granted repeatedly, in which case, the decision regarding the support to be provided shall be reviewed by the Court or the designated authority, as the case may be, to determine the nature and manner of support to be provided. _Explanation_ : For the purpose of this sub- section, "limited guardianship" means a system of joint W. P. (C) No.629 of 2021 -: 8 :- decision which operates on mutual understanding and trust between the guardian and the person with disability, which shall be limited to a specific period and for specific decision and situation and shall operate in accordance to the will of the person with disability. (2) On and from the date of commencement of this Act, every guardian appointed under any provision of any other law for the time being in force, for a person with disability shall be deemed to function as a limited guardian. (3) Any person with disability aggrieved by the decision of the designated authority appointing a legal guardian may prefer an appeal to such appellate authority, as may be notified by the State Government for the purpose." 8. Noticeably, both the provisions provide for appointment of guardian for a “person with disability”. The definition of the words “person with disability”, as provided for in the two statues, delineates the class of persons dealt with under the respective Acts. The relevant definition W. P. (C) No.629 of 2021 -: 9 :- clause, in the respective statues, are extracted hereunder:- - (a) Section 2 (j) of the National Trust Act:- ## “(j) "person with disability" means a person suffering from any of the conditions relating to autism, cerebral palsy, mental retardation or a combination of any two or more of such conditions and includes a person suffering from severe multiple disability.” - (b) Section 2 (s) of the PwD Act reads thus:- ## "(s) "person with disability" means a person which long-term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others." 9. On a plain reading of the provisions it is evident that, the National Trust Act confines to a particular class of persons, W. P. (C) No.629 of 2021 -: 10 :- whereas the PwD Act encompasses a wider group of persons. The National Trust Act provides for appointment of guardian to persons with autism, cerebral palsy, mental retardation and to those suffering from severe multiple disabilities as defined under the Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995. On the other hand, the PwD Act deals with persons who, on account of long-term physical, mental, intellectual or sensory impairment cannot have full and effective participation in society. In so far as the restrictive class falling within the purview of the National Trust Act is concerned, a specific provision having been provided therein to seek for appointment of guardian, the mechanism under the said statute is to be moved. In so far as the others are concerned, appointment of guardian could be sought under the PwD Act. The principle that, a general law yields to a W. P. (C) No.629 of 2021 -: 11 :- special law - generalia specialibus non derogant, is well settled. _**(J.K.Cotton Spinning and Weaving Mills Co. Ltd. vs. State of Uttar Pradesh and other,**_ **AIR 1961 SC 1170** _**and Sri.Jagannath Temple Managing Committee vs. Sidha Math and others,**_ **AIR 2016 SC 564** _**).**_ 10. Having said so, it is to be considered as to, whether the case at hand falls within the purview of the National Trust Act or the PwD Act. As adverted to at the very first instance, as per Ext. P10 certificate, the medical board has vouched that the ward suffers from _**schizophrenia**_ and has _**70% moderate permanent impairment in relation to her mental function**_ . The same could be accepted as a material for primafacie satisfaction regarding the medical condition of the ward. The ward does not fall within the category of “person with disability” as defined under the National Trust Act since it is not a case of mental retardation or arrested mental development, W. P. (C) No.629 of 2021 **==> picture [36 x 9] intentionally omitted <==** but a case of schizophrenia which is a form of mental illness. Therefore, it is the PwD Act that has to be resorted to for appointment of guardian for the ward in question. The petitioners are to seek their remedy in terms of Section 14 of the PwD Act. 11. It is pointed out across the bar that, appointment of a guardian, in terms of Section 14 of the PwD Act, is to be done by the authority in consultation with the ward, and that, considering the degree of disability of the ward, “consultation” as prescribed under the provision would be a near impossibility. Here it is to be noticed that, the process of consultation with a person with illness and its efficacy, would in each case vary depending on the comprehending capacity of the person with illness. It is for the authority notified in terms of the Section to make its endeavour to have the process of consultation done; but it is to be noted that, W. P. (C) No.629 of 2021 -: 13 :- the term “consultation” occuring in Section 14 will necessarily have to be understood and appreciated giving due regard to the degree of disability of the person with illness, and his capacity to comprehend and interact. Therefore, the term “consultation” occuring in Section 14 has to be understood in a practical way, that is, “consultation to the extent possible in a given circumstance”. 12. It is brought to the notice of this Court that, pending the Writ Petition the petitioners have moved the Sub-Divisional Magistrate, who is the authority notified to exercise the powers under Section 14 of the PwD Act, seeking appointment of guardian for the ward. A copy of the said application has been produced before this Court and marked as Ext.P13. The Sub-Divisional Magistrate-the additional 6[th] respondent in the Writ Petition shall take up Ext.P13 application, consider the same and dispose it of in accordance with W. P. (C) No.629 of 2021 -: 14 :- law and in the light of the observations in this judgment. Let orders be passed on the application as expeditiously as possible and at any rate within three months from the date of receipt of a copy of this judgment. 13. Before parting with the case, I deem it only appropriate and deserving to place on record the appreciation of this Court to the learned _**amicus curie**_ Sri. Ramkumar Nambiar and Smt. Satyasree Priya for their relentless assistance being rendered to this Court in this supervisory mental health jurisdiction. Writ Petition is disposed of as above. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge ## WP(C) NO.629 OF 2021 ## **APPENDIX** ## **' - PETITIONER S EXTS:** |**EXT.P1**|**A TRUE COPY OF THE PARTITION DEED NO.4222 OF 2002 OF THRISSUR**| |---|---| ||**SRO DATED 30.09.2002.**| |**EXT.P2**|**A TRUE COPY OF THE TAX RECEIPT IN RELATION TO THE SAID**| ||**PROPERTIES DATED 19.09.2018.**| |**EXT.P3**|**A TRUE COPY OF THE POSSESSION CERTIFICATE IN RELATION TO THE**| ||**SAID PROPERTIES IN THE JOINT NAME OF 2ND PETITIONER AND**| ||**PRAMEELA A.M.**| |**EXT.P4**|**A TRUE COPY OF THE DEATH CERTIFICATE OF MARASSERY MADHAVAN @**| ||**MARASSERY ACHARI ISSUED FROM ENGADIYUR GRAMA PANCHAYAT DATED**| ||**27.02.2019.**| |**EXT.P5**|**A TRUE COPY OF THE DEATH CERTIFICATE OF RAVI ISSUED FROM KOCHI**| ||**MUNICIPAL CORPORATION DATED 19.07.2016.**| |**EXT.P6**|**A TRUE COPY OF THE DEATH CERTIFICATE OF SMITHA ISSUED FROM**| ||**THRISSUR CORPORATION DATED 24.11.2003.**| |**EXT.P7**|**A TRUE COPY OF THE APPLICATION ALONG WITH CONSENT AND**| ||**DECLARATION DETAILS FOR THE APPOINTMENT OF GUARDIAN OF**| ||**PRAMEELA AM DATED 03.01.2018.**| |**EXT.P8**|**A TRUE COPY OF CONSENT FORM REGARDING THE PROTECTION TO THE**| ||**TERMINALLY-ILL PERSON PRAMEELA AM DATED 13.01.2018.**| |**EXT.P9**|**A TRUE COPY OF THE AADHAR CARD ISSUED TO PRAMEELA A.M. DATED**| ||**NIL.**| |**EXT.P10**|**A TRUE COPY OF THE DISABILITY CERTIFICATE ISSUED FROM THE**| ||**GOVERNMENT MEDICAL COLLEGE HOSPITAL, THRISSUR VIDE CERTIFICATE**| ||**NO.G2/II/2621/2017 DATED 06.02.2018.**| |**EXT.P11**|**A TRUE COPY OF THE ORDER IN OP (MH) NO.23 OF 2019 ON THE FILES**| ||**OF HONOURABLE ADDITIONAL DISTRICT COURT-IV, THRISSUR DATED**| ||**16.08.2019.**| |**EXT.P12**|**A TRUE COPY OF THE DIVISION BENCH JUDGMENT OF THIS HONOURABLE**| ||**COURT IN SHOBHA GOPALAKRISHNAN V. STATE OF KERALA DATED**| ||**20.02.2019 REPORTED IN 2019 (1) KLT 801.**| |**EXT.P13**|**A TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONERS**| ||**DATED 16.02.2021 BEFORE THE SUB DIVISIONAL MAGISTRATE,**| ||**THRISSUR.**| **-----**