1. This Original Petition is filed under Sections 3, 7 to 10 and 29 of Guardians and Wards Act, 1890 read with Order XXI Rules 2 and 3 of Original Side Rules praying to appoint the petitioner as the guardian of the person and property of Miss. G.Prabhavathy, mentally retarded person and pass such further or other orders as may be deemed fit and proper in the circumstances of the case.

2. Heard Mr. S.Yeganarayanan, learned counsel appearing for the petitioner, Ms. Narmadha Sampath, learned advocate appointed as Amicus Curiae by this Court.

3. This Original Petition has been filed by Thiru G.Nityanandam, the brother of Miss. G.Prabhavathy, said to be a mentally retarded person to appoint him as guardian of the person and property under the provisions of the Guardians and Wards Act, 1890 read with Original Side Rules.

4. The first respondent Tmt. D.Saritha, is the sister and the second respondent Shri G.Jeevanandam, is the brother of the alleged mentally retarded person. The reason for making the present petition is that the alleged mentally retarded person Miss. G.Prabhavathy, is incapable of managing herself and her properties. Based on the disability certificate issued by State Resource-cum-Training Centre for Differently Abled Persons, K.K. Nagar, Chennai 600 078 (unit of the office of the Commissionerate for Welfare of the Differently Abled, Chennai-6), the present petition is filed. Petitioner claims to be the brother and seeks for an order to appoint him as a guardian of the alleged mentally retarded person with a plea that the respondents are agreeable for appointing him as the guardian of the alleged mentally retarded person. Petitioner states that he is taking care of the alleged mentally retarded person and therefore, he is most appropriate person to be appointed so. The further plea is that the father has already expired and mother's whereabouts are not known since 1995.

5. When the petition was moved before this court a doubt arose as to how the provision of Guardian and Wards Act, 1890 would apply in a case for appointment of guardian to a mentally retarded person. This court taking note of the provisions of the Guardians and Wards Act, 1890 which specifically provides for appointment of guardian in respect of minors and the present case which is to appoint a guardian in respect of an alleged mentally retarded person, aged about 31 years, is of the view that the petition under Guardians and Wards Act, 1890 is not maintainable. If that be the case, as to what is the remedy the petitioner will have for the above stated relief was considered. On the doubt that arose in the mind of the Court, the Court appointed Tmt. Narmadha Sampath, Advocate, as Amicus Curiae, considering her experience in this field and exposure to similar issues coupled with her participation in the recently conducted International Conference on Child Welfare with special emphasis on International Law and Child Justice, to assist the Court as to how the case of a mentally retarded person could be considered based on law that has developed in the field of mental health and mental disability.

6. The learned Amicus Curiae submitted as follows:-

(1) The person in this case who said to be mentally retarded will not fall within the definition of mentally ill person as mentally retardation stands excluded from the provision of the Mental Health Act, 1987. Section 2(l) of the Mental Health Act, 1987 defines “mentally ill person” as follows:-

“(l) ”mentally ill person” means a person who is in need of treatment by reason of any mental disorder other than mental retardation;”

Therefore, the petitioner, who is stated to be mentally retarded, cannot seek appointment as guardian under the provisions of the Mental Health Act, 1987.

(2) She, on the contrary, pointed out Section 2(g) of the National Trust for Welfare of Persons with Autism, Cerebral, Palsy, Mental Retardation and Multiple Disabilities Act, 1999 and the definition of the words “mental retardati