CRP(PD)No.1981 of 2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 29.06.2022

CORAM

THE HONOURABLE MS. JUSTICE R.N.MANJULA

CRP(PD).No.1981 of 2022

V. Padmini

... Petitioner

Civil Revision Petition filed under Section 227 of the Constitution of

India to set aside the Docket order dated 21.02.2022 passed in

O.P.S.R.No.5126 of 2021 by the District Judge, Chengalpet by allowing this

CRP.

For Petitioner

: Mr.B.Balaji for

Mr.R.Chellamuthu

For Respondent

: Nil

O R D E R

This Civil Revision Petition has been filed challenging the written

endorsement made by the learned District Judge, Chengalpet dated 21.02.2022.

2. The revision petitioner is the petitioner who has filed the original

petition before the District Court, Chengalpet to appoint herself as a guardian

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CRP(PD)No.1981 of 2022

for the person and property of her mentally retarded son Mr.Ambaresh

Varathan. The learned District Judge has returned the plaint on 21.02.2022 with

the following endorsement:

"As per Mental Health Act, 2017 (10 of 2017) when came into

force with effect from 07.07.2018 and Mental Health Act 1987 has been

Repealed. Hence this petition is returned".

3. The learned counsel for the revision petitioner submitted that "The

Mental Health Act, 1987" was repealed and was replaced by the Mental

Healthcare Act, 2017 which came into effect from 07.07.2018 and in the new

Act there is no specific provision available in the special Act for appointment

of guardian for the mentally ill person. Since the gap has to be filled up only by

way of filing an appropriate original petition before the jurisdictional Court, the

revision petitioner had filed the petition before the District Court, Chengalpet.

In this connection it is relevant to refer the order passed by this Court dated

27.01.2022 made in OP.No.731 of 2021 in which Hon'ble Mr.Justice Abdul

Quddhose has held as follows:-

12. Section 53 of the repealed Mental Health Act 1987 reads as

follows:-

53. Appointment of guardian of mentally ill person (1) Where

the mentally ill person is incapable of taking care of himself, the

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CRP(PD)No.1981 of 2022

District Court or, where a direction has been issued under sub-section

(2) of Section 54, the Collector of the District, may appoint any

suitable person to be his guardian.

(2) In the discharge of his functions under sub-section (1) the

Collector shall be subject to the supervision and control of the State

Government or of any authority appointed by it in that behalf.

13. The Mental Health Act, 1987 was repealed and was

replaced by the Mental Healthcare Act, 2017 which came into effect

from 07.07.2018. As seen from the Mental Healthcare Act, 2017, there

is no provision available for appointment of a guardian of a mentally

ill person, which was very much available under the repealed Mental

Health Act, 1987. Though the National Trust for Welfare of persons

with Autism, Cerebral Palsy, Mental Retardation and Multiple

Disabilities Act, 1999 under Section 14 empowers the Local Level

Committee to appoint a legal guardian for a mentally retarded person,

the said legislation has not curtailed the powers of this Court to

appoint a legal guardian for a mentally retarded person exercising its

powers under Clause 17 of the Letters Patent. The decision rendered

by a learned Single Judge of this Court in G.Nithyanandam Vs.

Tmt.D.Saritha and others reported in 2013 3 LW 412 which is the

basis for the return of the Original Petition by the Registry of this

Court is in the context of a petition filed under the Guardians and

Wards Act and not under Clause 17 of the Letters Patent. The only

reason for holding that the said petition was not maintainable by the

learned Single Judge in the reported decision of G.Nithyanandam's

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CRP(PD)No.1981 of 2022

case referr