A.F.R.

Court No. - 40

Case :- WRIT - C No. - 26844 of 2021

Petitioner :- Vinay Kumar Sharma

Respondent :- State Of U.P. And 2 Others

Counsel for Petitioner :- Kunwar Tejandra

Bahadur,Arvind Kumar Tripathi

Counsel for Respondent :- C.S.C.

Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Vikram D. Chauhan,J.

(Per: Hon'ble 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

(2)

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 8^th

October, 2008 and mother died on 6^th 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 7^th 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

(3)

Guardian of Sri Sandeep Kumar Sharma and in the aforesaid

case on 27^th 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 22^nd

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

petit