The court established that it can act as parens patriae to appoint a guardian for a comatose patient when no legislative provisions exist.

JUDGMENT :

Issue rule, returnable forthwith. Ms Foram Trivedi, learned Assistant Government Pleader waives service of notice of rule on behalf of the respondent.

2. By this petition, the petitioners have prayed for direction to hold and declare the petitioner no.1 – Anjuben Karansinh Dodiya as a guardian of Karansinh Rajusinh Dodiya (hereinafter referred to as ‘the patient’), who is in a vegetative/comatose state. Further prayer is for declaring the petitioner no.1 – Anjuben Karansinh Dodiya as the manager of the movable and immovable properties belonging to the patient.

3. Mr Siddharth Keshkani, learned advocate for the petitioners submitted that the petitioner no.1 is the wife of the patient. The marriage was solemnized as per the Hindu rites in the year 1996 and petitioner nos.2 and 3 are the sons of the patient, aged 20 years and 15 years respectively. It is submitted that in the year 2019, the patient was detected with dengue and was hospitalized. Owing to the weakness, the patient, fell on the floor, and as a result, has sustained brain hemorrhage with severe medical complications. It is thereafter, that the patient was shifted to Zydus Hospital and has undergone decompressive craniectomy with evacuation of Acute SDH. It is submitted that as per the certificate, the patient, is in unconscious state. The patient is totally bedridden, unresponsive, unable to communicate via sign language. The patient, since is unconscious, disoriented and non-reactive, the petitioners, therefore, are collectively taking care of the patient, including the medical follow-ups. Even after passage of more than five years, there is no progress in the health condition of the patient and is in a vegetative state. The recovery is full of uncertainty and beyond the medical scope.

3.1 It is submitted that the petitioners are spending approximately Rs.2 lac per month on the medical treatment of the patient. Besides, the patient, requires constant assistance, supervision and active medical monitoring and the family, i.e. the petitioners, are facing unsurmountable difficulties in managing the finances for the ongoing treatment.

3.2 It is submitted that even the team constituted by this Court, has certified that the patient, is sub-conscious. Furthermore, the sons and the father-in-law, have filed their affidavits, indicating that they have no objection if the petitioner no.1, is appointed as the guardian and manager to deal with the movable and immovable properties of the patient. It is therefore, urged that the petitioner no.1 being the wife, be declared as the manager of the movable and immovable properties belonging to the patient.

3.3 It is submitted that the petitioners, have sought recourse of all the statutes governing the field; however, there is no legislative provision for appointment of guardian of patient lying in comatose state, namely, The Guardian and Wards Act, 1890, The Mental Health Act, 1987 (repealed), The National Trust Act for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999, so also the Rights of Persons with Disabilities Act, 2016. It is therefore, the captioned writ petition has been filed, invoking the extra-ordinary jurisdiction of this Court of “parens patriae”, with a permission to allow the petitioner no.1 to act as a guardian of the patient.

3.4 Reliance is placed on the judgment in the case of Shobha Gopalakrishnan vs. State of Kerala reported in 2101 SCC OnLine Ker 739. It has been held and observed that in absence of any legislation governing appointment of the guardian to the patient, who is in comatose state, it would be open for the parties to invoke the extra-ordinary jurisdiction under Article 226 of the Constitution of India with a prayer seeking declaration of appointment of a guardian. Reliance is also placed on the judgment in the case of Sairabanu Mohammad Rafi vs. State of Tamilnadu reported in 2016 SCC OnLine Mad 8091. It is submitted that it has been held a