J U D G M E N T

The writ petition is filed seeking appointment of the first petitioner as the guardian of Prameela A.M. (hereinafter referred to as “the ward”) who is stated to be a mentally ill person.

2. The second petitioner is the mother of the ward. The husband of the second petitioner viz. Marassery Madhavan is no more. In the wedlock, four children were born to them viz. Ravi, Smitha, Anitha and Prameela. Ravi is no more; his wife and children are petitioners 1, 3 and 4. Smitha is no more and her legal heir is the 5th petitioner. Anitha is the 6th petitioner and Prameela is the ward.

3. The State Medical Board attached to the Government Medical College Hospital, Thrissur has, as per Ext.P10 certificate, certified that the ward suffers from schizophrenia and has 70% moderate permanent impairment in relation to her mental function. The certificate (Exhibit P10) is dated 06.02.2018.

4. Huge amounts are being expended for treatment of the ward, and the petitioners lack sufficient financial resources to meet the same. The ward, along with the second petitioner owns 2 Ares 2 Sq.m. (5 cents) of property, in Marathakkara village, obtained under Partition Deed No.4222/2002 of Thrissur SRO, as included in the 'A' schedule therein. The property needs to be sold to meet the financial requirements for maintenance and medical expenses of the ward. The property cannot be dealt with unless a guardian is appointed for the ward by the Court. The mother of the ward, who is the second petitioner, is aged and suffers from severe health issues; the sixth petitioner, who is the sister of the ward, is entangled in family issues. The petitioners had approached the District Court, Thrissur, in OP(MH) 23/2019 under the Mental Health Act, 1987 seeking appointment of the first petitioner herein as the guardian of the ward. Since the Mental Health Act, 1987 was repealed even prior to the filing of the said Original Petition, the same was, as evidenced by Ext.P11, dismissed as not maintainable. It is thus compelled, the petitioners have approached this Court seeking for appointment of the first petitioner, who is the sister-in-law of the ward, as the guardian.

5. Heard Sri.G.Sreekumar Chelur, learned counsel for the petitioners, Sri.Ramkumar Nambiar and Smt.Sathyasree Priya, the learned Amicus Curiae and Sri.N.Manoj Kumar, the learned Special Government Pleader.

6. The petitioners have approached this Court with the prayer for appointment of guardian for the ward on the premise that, consequent on the repeal of the Mental Health Act, 1987 there is no other statute occupying the field, enabling appointment of guardian for a mentally ill person.

7. In the matter of appointment of guardian for a mentally ill person, the Mental Health Act, 1987 governed the field. It provided for appointment of guardian for the person and property of the ward as the circumstance warrant. The Mental Health Act, 1987 was repealed by the Mental Health Care Act, 2017. The Act acknowledges the dignity and rights of the mentally ill and provides for their full participation in the society and community life. However, the Act does not provide for appointment of guardian for the person or property of a mentally ill person in case of a contingency. Where to look upon in such a situation, is the issue. There are, at present, two statutes which provide for appointment of guardian for persons with mental health issues namely, (i) The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (herein after referred to as “the National Trust Act”) and (ii) The Rights of Persons with Disabilities Act, 2016 (herein after referred to as “the PwD Act”). Section 14 of the respective Acts provide for appointment of guardian. For the sake of completeness, the provisions are extracted hereunder:-

(a) Section 14 of the National Trust Act reads thus:-

“14. Appointment for guardianship (1) A parent of a person with disability or his relat