2019 Supreme(Ker) 86

IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.R.RAMACHANDRA MENON, N.ANIL KUMAR, JJ.
Shobha Gopalakrishnan & Ors. - Petitioner
Vs.
State of Kerala & Ors. - Respondents
WP(C).No. 37278 of 2018, WP(C).No. 37062 of 2018
Decided On : 20-02-2019

IMPORTANT POINTS :
• The first petitioner (wife of the person by name T.V. Varkey, who is lying in 'comatose state') as the Guardian of the latter, to deal with the property covered by Ext.P2 on behalf of the co-owner by name T.V. Varkey, subject to the condition that she shall satisfy the guideline No.(vii) as mentioned in paragraph 35 above, submitting a report, containing all the relevant particulars in respect of the transactions (including as to the utilisation of the fund received and spent by her), before the Registrar General of this Court. She shall be bound to act, as mentioned in the other guidelines as well, to the extent they are relevant, including by giving notice to the Social Welfare Officer, having jurisdiction over the area as to her appointment as Guardian, as stipulated under Clause No.(xii). It goes without saying that she shall be answerable and accountable to those who may later come in the class of 'Legal heirs' of the victim in 'comatose state'.
• The offence alleged against the petitioner under Section 12(1)(b) of the Act is not made out and also that the sanction under Section 15 of the Act was not obtained before initiation of prosecution, it has held that the criminal proceedings is a futile exercise. Therefore it has to be terminated in the interest of justice.

Headnote:The Guardian and Wards Act, 1890, The National Trust for the Welfare of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999; The Mental Health Act, 1987, The Mental Healthcare Act, 2017; The Rights of persons with Disabilities Act, 2016- The Constitution of India - Article 226- for the Guardian appointed by the Court to meet the obligations/duties similar to those as described under Section 15 of the National Trust Act and to maintain and submit the accounts similar to those contained in Section 16.- The wife of the person by name T.V. Varkey, who is lying in 'comatose state' as the Guardian of the latter, to deal with the property covered by Ext.P2 on behalf of the co-owner by name T.V. Varkey, she shall be answerable and accountable to those who may later come in the class of 'Legal heirs' of the victim in 'comatose state'.

       Statement of facts :

       The victim, lying in a comatose state, is having some properties [immovable/movable] and small bank deposits, but the petitioners are not in a position to deal with the same because of the 'legal hurdles'. -They have already incurred huge expenses, as borrowed from different corners, in connection with the treatment-besides undergoing unending agony, stress and depression on account of the plight of their dear one lying in a 'permanent vegetative state' and 'coma'. The petitioners are constrained to approach this court for appointing the named petitioner/wife of the patient in comatose state as 'Guardian', contending that no legislation in India does provide for appointment of Guardian for a person in comatose state, unlike legislations for appointment of 'Guardian for minors' and persons with other disabilities like mental retardation etc-As per Ext.P2 discharge certificate issued from P.S.Mission Hospital, it was observed that continued supportive treatments had to be followed up all during his life time. The case of the petitioners is that the patient was the sole bread winner of the family, engaged in his own business; the petitioners have so far spent more than Rs.20 lakhs towards medical expenses and upkeep of the patient; that the said amount was mobilised with much difficulty on the help of relatives and friends; that both the petitioners are unemployed and are running out of financial resources even to meet their basic needs, but for the minimal rentals they receive. It was in the said circumstance, they seek to appoint the first petitioner as the 'Guardian' of her husband (victim/patient) and also for operating his bank accounts and to deal with his properties on war footing; pointing out that there is no legislation for appointment of a 'Guardian' in respect of persons lying in 'comatose state' and hence immediate interference is necessary.

       Finding of the court :

       The first petitioner (wife of the person by name T.V. Varkey, who is lying in 'comatose state') as the Guardian of the latter, to deal with the property covered by Ext.P2 on behalf of the co-owner by name T.V. Varkey, she shall be answerable and accountable to those who may later come in the class of 'Legal heirs' of the victim in 'comatose state'.

       Result : Crl. M.C. is disposed of.