IMPORTANT POINT
The court exercises parens patriae jurisdiction under Article 226 to appoint a guardian for a comatose individual, highlighting the absence of specific legislation for such cases.

JUDGMENT :

Maulik J.Shelat, J.

1. Issue Rule returnable forthwith. Learned AGP Mr. Pranav Dhagat waives service of notice of rule on behalf of respondent/s.

2. The present petition is filed under Article 226 of the Constitution of India seeking following prayers;

“11. A. Hon’ble Court be please to admit and allow present application and furthermore, Hon’ble Court be pleased to appoint present petitioner as guardian of Harjivan Manjibhai Hadiya and his movable and immovable property of Harjivan Manjibhai Hadiya specifically listed in annexure A to this petition in the interest of justice;

B. Hon’ble Court be pleased to pass an order enabling present petitioner to sell immovable properties of the patient Harjivan Manjibhai Hadiya so as to pay debts of patient as well as maintain petitioner and her family and pay medical expenses of patient Harjivan Manjibhai Hadiya in the interest of justice;

C. Hon’ble Court be pleased to pass an ad interim relief enabling petitioner to maintain bank accounts of patient Harjivan Manjibhai Hadiya being guardian of the patient in the interest of justice;

D. Any other order that this Hon’ble Court deems fit in the interest of justice.

E. Hon’ble Court may please by an interim relief, allow the petitioner herein to make sale of the property described at Sr. No. 18 at Annexure A for the purpose of sustenance as well as maintaining the husband, who is in vegetative state with medical and other expenses.”

3. The petitioner happens to be wife of one Harjivan Manjibhai Hadiya seeking declaration from this Court to be appointed as guardian of Harjivan Manjibhai Hadiya herein after referred as “husband of the petitioner”.

4. The short facts which are necessary for adjudication of present petition are as under;

4.1 Petitioner happens to be wife of Mr. Harjivan Manjibhai Hadiya and out of their wedlock, they are blessed with one daughter namely Rutvi on 08.07.2006 and son namely Harshil on 01.11.2007 and at present they are aged about 17 and 16 years respectively. It is the case of petitioner that husband of petitioner was practicing doctor by profession, who unfortunately received Cerebro Vascular Stroke (C. V. Stroke) on 02.08.2022. He was undergone 4 major and 3 minor surgeries but not recovered out of such stroke. It is further stated by petitioner that currently husband is under comatose condition and treating doctors are not in a position to confirm time of his recovery.

4.2 The petitioner has placed on record a certificate dated 25.05.2023 issued by Dr. Navubha J. Sodha having degree of MD, DNB, FCCS, PFCC, EDIC, Consultant Intensivist, Anesthesiologist & Pain Specialist, Bhuj whereby doctor concern in clear terms stated that the husband of the petitioner is not following any command, he is bedridden under nursing care and chances of recovery is difficult in this massive stroke.

4.3 It is the case of petitioner that her husband is unable to do anything, not in a position to speak or to move from bed and he is completely in a vegetative state. According to the petitioner, she being a house wife, she has a responsibility of maintaining her husband as well as children but she would unable to discharge such responsibility in absence of any financial resources which can be utilized by her either operating bank account of her husband or selling off his immovable properties so mentioned in the petition.

4.4 According to the petitioner, her husband was sole bread earner of family as both her children are minor. Thereby, she is not in a position to meet with day to day expenses to be incurred either for treatment of her husband or for study of the children and to maintain day to day needs of family. She has further submitted that till date, family of the petitioner has incurred huge expenses for best possible treatment of her husband but henceforth, in absence of any financial help, petitioner may not be in a position to look after day to day affairs of the family as well as medical expenses of her husband.

4.5 Petitioner