2023 Supreme(Del) 2900

IN THE HIGH COURT OF DELHI AT NEW DELHI
Satish Chandra Sharma, Yashwant Varma, JJ.
Sunil Podar – Appellant
Versus
The National Trust For Welfare of Person With Autism, Cerebral Palsy, Mental Retardation And Multiple Disability – Respondent
W.P.(C) 8359 of 2022 & C.M. Appl. 25173 of 2022
Decided On : 13-02-2023

Headnote:

Whether a foreigner can claim the right to be appointed as a guardian of a person with disabilities under the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (the Act) and whether the disqualification as embodied in Rule 17 read with Regulation 12 is valid in law.

Fact of the Case:

The petitioner, who is the father of a person suffering from severe mental retardation and certified to be suffering from a 90% disability, assails the validity of Rule 17(1)(iii)(a) of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Rules, 2000 [Rules] as well as Regulation 12(1)(i) of the Board of the Trust Regulations, 2001 [Regulations] which restrict the appointment of a guardian to a person who is an Indian citizen.

Finding of the Court:

The Court held that the petitioner cannot claim a constitutional right to be appointed as a guardian of a person with disabilities. It also held that the Rules and Regulations are valid and the disqualification as embodied in Rule 17 read with Regulation 12 is valid in law.

Issues: 1. Whether a foreigner can claim the right to be appointed as a guardian of a person with disabilities under the Act? 2. Whether the disqualification as embodied in Rule 17 read with Regulation 12 is valid in law?

Ratio Decidendi: 1. The Act is an embodiment of the parens patriae obligation which stands placed upon the State to look after the interest and welfare of all its citizens including those who are challenged or suffering from debilitating disabilities. 2. The origins of the principles underlying the parens patriae obligation was lucidly explained by the Supreme Court in Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368. 3. The evolutionary principles underlying the parens patriae doctrine were explained to constitute the sovereign power of guardianship which vests in the State with respect to persons with disabilities. 4. That doctrine pertains to the obligation of the State to protect and take under its care the rights and privileges of disabled citizens in discharge of its essential obligations as a sovereign. 5. With the advent of the Constitution, the parens patriae jurisdiction was also exercised by the constitutional courts of our country while dealing with matters relating to child custody and examining measures liable to be adopted for the welfare of children. 6. It essentially represents the obligation and the duty cast upon the State to take care of those of its citizens who are unable or are rendered incompetent to stand on their own. 7. The subject of guardianship is within the control of the legislature. 8. When a guardian is appointed, he or she is subject to control and supervision by the courts. 9. The public and the State are properly concerned with the subject of guardianship. 10. The legislature may regulate guardianship by the enactment of laws within its authority, and the statutes control all matters which relate to guardians and wards. 11. Thus, as the right to appoint a testamentary guardian depends on statute, it follows that the whole subject is within the control of the legislature and that it may not only regulate and restrict the power of appointment but may also define, limit, and regulate the authority of the guardian and prescribe the conditions under which the authority may be exercised. 12. By accepting appointment, a guardian submits personally to the jurisdiction of the court in any proceeding relating to the guardianship. 13. A guardian appointed by a court of competent jurisdiction is always under the court's control and is subject to its directions and supervision even though the ward nominated the guardian. 14. The jurisdiction of the court in this respect is an exclusive and a continuing one. 15. A court vested with the supervisory control of guardianships cannot make an order divesting itself of such control and deprive the minor of his or her right to have his or her estate administered under its control. 16. Testamentary and natural guardians are also subject to control by the appropriate court. 17. Since the guardian acts under the authority and supervision of the court, he or she may apply to it for instructions or for the construction of written instruments connected with the discharge of his or her duties. 18. However, in the absence of specific statutory authority, the court cannot make an order, on application of the guardian, binding the ward beyond his or her minority. 19. The discretion of a court in the exercise of its power of supervision must not be arbitrary, but it is a general discretion to be exercised within reason and with due regard to the rights of all concerned. 20. The court acts for, and on behalf of, the child in guardianship proceedings, and the best interests and welfare of the ward must guide the court at all times. 21. The court may not substitute its judgment for that of a guardian unless it plainly appears that a case has been made justifying its interference with the discretion of the guardian as to what is in the best interests of the ward. 22. The jurisdiction of particular courts within a state to control guardians in the performance of their duties depends on the applicable and constitutional provisions of the particular state. 23. Ordinarily, courts in equity have the power to control and direct guardians in the performance of their trust so as to secure the proper care of the person and property of their wards. 24. In many jurisdictions, matters relating to guardianship are within the jurisdiction of probate and similar courts, which have such powers as to guardianship as are conferred by, or implied from, legislation. 25. In some jurisdictions, courts of superior jurisdiction have supervisory power over the acts, proceedings, and functions of inferior courts relating to guardianship matters. 26. Regardless of the nationality of the child, the courts of a state have jurisdiction over the guardianship of a child within the state, and the courts of one state or country may appoint guardians for the estate or property, situate therein, of persons residing in any foreign state or country and who are citizens thereof. 27. A personal guardian for a child may be a noncitizen. 28. In the absence of statutory provisions to the contrary, a nonresident may be appointed guardian although such appointments are not favored. 29. An alien may also be appointed guardian in the absence of statutory provision to the contrary.

Final Decision: The writ petition along with the pending application shall consequently stand disposed of in terms of the directions set out in paragraphs 43 and 44. The Local Level Committee shall cause an inspection to be made with due expedition and upon the appointment of a statutory guardian place a comprehensive report on the record of these proceedings within a period of two months from today. The Court additionally grants liberty to the Local Level Committee to apply for such further directions as may be considered necessary and in y and in case circumstances so warrant.