Point of Law: Person who is mentally retarded and who has lost his parents cannot be permitted to remain without a guardian for a long period of time and considering the object of the Act, it is imperative on the Local Level Committee to accord such consideration in accordance with law within the time prescribed.

JUDGMENT :

Vikram D. Chauhan, J.

1. The present writ petition has been filed by the petitioner for issuance of a direction to the District Magistrate, Bijnor to consider the application of the petitioner to issue a certificate in his favour pertaining to guardianship of his mentally and physically disabled brother namely, Sandeep Kumar Sharma.

2. Heard learned counsel for the petitioner and learned Standing Counsel for the respondents.

3. The counsel for the petitioner contends that the father of the petitioner, Late Ramesh Prasad Sharma had three sons, namely, Sandeep Kumar Sharma, Vinay Kumar Sharma and Ankit Kumar Sharma. It is further submitted that Shri Sandeep Kumar Sharma (brother of the petitioner) is 90% physically as well as mentally disabled and is aged about 37 years. In this regard, the counsel for the petitioner has also drawn attention to the disability certificate (Annexure 1 to this writ petition) issued by the Chief Medical Officer, Bijnor indicating that Sri Sandeep Kumar Sharma (brother of the petitioner) is mentally retarded. It is further contended by the petitioner that during the lifetime of the parents of the petitioner, Sri Sandeep Kumar Sharma was being looked after by the parents and after the death of the parents, no person has been appointed as the guardian of Sri Sandeep Kumar Sharma. It is the submission of the counsel for the petitioner that both the parents of Sri Sandeep Kumar Sharma has already expired. It has been specifically pointed out that the father of Sri Sandeep Kumar Sharma died on 8th October, 2008 and mother died on 6th March, 2001.

4. It is urged by the counsel for the petitioner that Sri Sandeep Kumar Sharma is the eldest son and is not married on account of his mental and physical disability, whereas the petitioner and his younger brother Ankit Kumar Sharma are married. It is also submitted that Sri Sandeep Kumar Sharma on account of his above-mentioned disability is not in a position to maintain and take care of himself and after the death of his parents, no guardian has been appointed under law. It is contended that the petitioner has to face various difficulties and hindrance on account of non-appointment of the Guardian in respect of Sri Sandeep Kumar Sharma in various aspects of the life including his medical care and property.

5. It is further urged by the counsel for the petitioner that earlier the petitioner filed an application under section 7 of the Guardians and Wards Act, 1890 before the court of Principal Judge, Family Court, Bijnor on 7th March, 2019 and the aforesaid case was registered as O.M. Case No 9 of 2019 (Vinay Kumar Sharma Vs. Ankit Kumar Sharma). It is further submitted by the counsel for the petitioner that the aforesaid application under section 7 of the Guardians and Wards Act, 1890 was preferred for appointment of the petitioner as Guardian of Sri Sandeep Kumar Sharma and in the aforesaid case on 27th August, 2019, written statement has been filed by Ankit Kumar Sharma, whereby no objection has been made for the appointment of the petitioner as Guardian of Sri Sandeep Kumar Sharma. Learned counsel for the petitioner further submits that the Principal Judge, Family Court, Bijnor on 22nd September, 2020 has dismissed the above-mentioned case of the petitioner on the ground that the aforesaid court has no power to appoint Guardian in respect of retarded person, who is major. It is urged by the counsel for the petitioner that a person can be appointed as Guardian under the Guardianship and Wards Act, 1890 in respect of minor and as such, the application of the petitioner under the aforesaid Act was held to be not maintainable. It is also submitted by the counsel for the petitioner that thereafter the petitioner has preferred an application dated 24th June, 2021 before the District Magistrate, Bijnor for issuance of a certificate of guardianship of Sri Sandeep Kumar Sharma in favour of the petitioner. It is further submitted that the petitioner has further on