IMPORTANT POINT
The court established that Article 226 of the Constitution can be used to appoint guardians for individuals in a comatose state when no statutory remedy exists, emphasizing the need for judicial intervention to protect the rights and welfare of such individuals.

JUDGMENT :

(Judgment of the Court was made by G.R.SWAMINATHAN, J.)

Prayer : Writ Appeal filed under Clause 15 of Letter Patents against the order passed by this Court vide order dated 23.04.2024 made in W.P.No.11314 of 2024.

This intra-Court appeal is directed against the order dated 23.04.2024 dismissing Writ Petition No.11314 of 2024 filed by the petitioner.

2. The writ petition was filed for appointing the appellant herein as Guardian for the person as well as the properties of her husband Thiru.M.Sivakumar, who is currently in a vegetative state. He was in hospital from 13.02.2024 till 04.04.2024. It is stated that the hospital bills have run to several lakhs of rupees. At present, Thiru.Sivakumar is being kept at home and taken care of by the appellant through critical care nurses and a caretaker. The appellant has sought for the aforesaid appointment as guardian so that the petition mentioned immovable property standing in the name of her husband can be disposed of. The learned single Judge took the view that the relief sought for by the appellant cannot be granted in a writ petition under Article 226 of the Constitution of India. Liberty was given to the appellant to approach the jurisdictional Civil Court.

3. When the matter was listed on 15.05.2024, the Hon'ble Division Bench directed the petitioner to implead her children born through Thiru Sivakumar. Accordingly, implead petition in C.M.P.No.11127 of 2024 was filed. The writ appeal was taken up for further hearing on 22.05.2024. Both the children viz., S.Durga and S.Akash born to the appellant through her husband Thiru.Sivakumar were present. Both have attained majority. They categorically stated before us that they have no objection for allowing the writ appeal as prayed for. In fact, the appellant's daughter struggled to control her emotions and indicated to the Court that they are presently bereft of any means and that unless their mother is allowed to deal with the property, the family will be in dire straits.

4. We take the respectful view that the learned single Judge was not right in holding that the writ petition was not maintainable. In fact, the learned counsel for the appellant has enclosed a copy of the order dated 20.02.2019 made in W.P.(C) No.37278 of 2018 (Shobha Balakrishnan and another -vs- State of Kerala). The Hon'ble Division Bench of the Kerala High Court in the aforesaid case was concerned with the individual lying in Comatose state. Paragraphs 34, 35 and 36 of the said order was read as follows:

"34. Considering the role of this Court, jurisdiction under Article 226 of the Constitution of India springs up, when no remedy is provided under any Statute to persons like patients in 'comatose state'. It is something like 'parens patriae' jurisdiction. A reference to the verdict in Nothman vs. Barnet London Borough Council [1978 (1)WLR 220] (at 228) is also relevant. In such cases, it is often said, Courts have to do what the Parliament would have done. A reference to the verdict in Surjit Singh Karla vs. Union of India and another [1991(2) SCC 87 explaining the principle of 'causes omissus' is also brought to the notice of this Court; to the effect that if it is an accidental omission, court can supply/fill up the gap. This Court however does not find it appropriate to “re-write” the provision, as it is within the exclusive domain of the Parliament. This is more so, when the relevant statutes like Mental Health Act, 1987 and PWD Act, 1995 came to be repealed, on introducing the new legislations, such as the Mental Healthcare Act 2017 and The Rights of persons with Disabilities Act, 2016 in conformity with the mandate of U.N.Convention, 2006. This Court does not say anything whether any amendment is necessary, also in respect of the National Trust Act for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (National Trust Act, 1999) with reference to the U.N.Convention 2006. It is for the Government to