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IN THE HIGH COURT OF KERALA AT ERNAKULAM
SATHISH NINAN, J.
Latha T.B. @ Latha Ravi – Appellant
Versus
Union Of India – Respondent
WP(C) No 629 of 2021
Decided on : 17-05-2021
Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995 – National Trust Act – Rights of Persons with Disabilities Act, 2016 – Section 14 – Mental Health Act, 1987 – Section 2 – Appointment as the guardian – Writ petition is filed seeking appointment of the first petitioner as the guardian of Prameela A.M. who is stated to be a mentally ill person – Held, Ward does not fall within the category of “person with disability” as defined under the National Trust Act since it is not a case of mental retardation or arrested mental development, but a case of schizophrenia which is a form of mental illness. – It is the PwD Act that has to be resorted to for appointment of guardian for the ward in question. – Petitioners are to seek their remedy in terms of Section 14 of the PwD Act. – It is pointed out across the bar that, appointment of a guardian, in terms of Section 14 of the PwD Act, is to be done by the authority in consultation with the ward, and that, considering the degree of disability of the ward, “consultation” as prescribed under the provision would be a near impossibility. – Here it is to be noticed that, the process of consultation with a person with illness and its efficacy, would in each case vary depending on the comprehending capacity of the person with illness. It is for the authority notified in terms of the Section to make its endeavour to have the process of consultation done; but it is to be noted that, the term “consultation” occuring in Section 14 will necessarily have to be understood and appreciated giving due regard to the degree of disability of the person with illness, and his capacity to comprehend and interact. – Term “consultation” occuring in Section 14 has to be understood in a practical way, that is, “consultation to the extent possible in a given circumstance”. – It is brought to the notice of this Court that, pending the Writ Petition the petitioners have moved the Sub-Divisional Magistrate, who is the authority notified to exercise the powers under Section 14 of the PwD Act, seeking appointment of guardian for the ward – Court deem it only appropriate and deserving to place on record the appreciation of this Court to the learned amicus curie Sri. Ramkumar Nambiar and Smt. Satyasree Priya for their relentless assistance being rendered to this Court in this supervisory mental health jurisdiction – Writ Petition Disposed of
JUDGMENT :
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:-
(1) A parent of a person with disability or his relative may m
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