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September 9, 2020

Wife could be the best guardian for her husband who is comatose – Bombay HC

by CA Shivam Jaiswal in Legal Court Judgement

There is no doubt that the wife could be the best guardian for her husband who is comatose – Bombay HC

The Bombay High Court recently made relevant observations regarding marriage while allowing a woman to act as her incapacitated husband’s guardian.

The extraordinary jurisdiction of the Court under Article 226 of the Constitution was invoked, given that the wife had approached the High Court directly in the matter instead of first approaching a lower court. Let us refer to the case of Rajni Hariom Sharma Vs. Union of India and another (Bombay High Court) to understand the same in detail.

Facts of the Case:-

  • The Petitioner’s husband is in a vegetative state, showing no signs of his revival from a coma.
  • Apart from her husband, the petitioner has two sons, one of whom is a minor, and a mother-in-law suffering from ailments.
  • Her husband suffered a cardiac arrest while jogging, leading to sudden unresponsiveness.
  • He was later rushed to the hospital, where he underwent treatment including surgeries for three months from which he could not recover, though his condition stabilized after three months.

Submissions by the Petitioner:-

  • The petitioner was having a hard time with mounting medical bills and household expenses without hardly any income of her own.
  • Even after her husband was discharged after three months from the hospital he continued to remain in a vegetative state.
  • As per the medical advice, it was necessary to arrange all facilities like observation under trained paramedic personnel along with physiotherapy and speech therapy.
  • Despite all of these, her spouse continued to be in a comatose state.
  • However, all the expenses incurred during this time were substantial as she had to create a well-equipped AC nursing room with amenities like a recliner bed, air mattress, and life-saving support systems.
  • Further, a full-time nurse and part-time physio and speech therapist were appointed for the treatment.
  • Additionally, other household expenses included her mother-in-law’s age-related ailments and children who were fully dependent on her and she had the responsibility to maintain it all without any income of her own.

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  • Petitioner had only 10% shares in the company called M/s. Solus Security Systems Private Limited.
  • Income earned by her through such shareholding was not sufficient to meet the expenses.
  • Since the husband was in a comatose condition, he was not in a position to use his intellect, converse and sign various documents.
  • Accordingly, petitioner was required to act as his guardian so as to safeguard the business and other interests of her husband and also to look after her family.
  •  When the petitioner requested the bank to allow her to put signature in place of her husband’s, it was turned down and she was advised to approach the competent court to get her appointed as the guardian of her husband.
  • On a query by the Court on what basis she was invoking writ jurisdiction of the Court, the petitioner submitted that there was no statutory provision relating to appointment of guardian of a person who is in a state of coma or lying in a vegetative state.
  • Therefore, a writ court exercising jurisdiction under Article 226 of the Constitution of India would be in the best position to grant relief to the petitioner.

Submissions by the Respondents:-

The respondents argued that though there was nothing to contest about the factual narrative of the petitioner, the maintainability of the writ petition was in question as the relief sought was in nature of a private relief, and invoking a public law may not be justified enough.

Observations of the High Court that there was no legislation relating to appointment of guardians to patients lying in a vegetative state

  • The counsel appearing on the behalf of the petitioner thus provided that the petitioner was in the just position to be appointed as a guardian by virtue of being the wife considering his comatose condition for over two years with no sign of revival.
  • The council also maintained that as there was no statutory provision concerning the appointment of a guardian for a person in a vegetative state.
  • Therefore, only a writ court exercising jurisdiction under Article 226 of the Constitution was the best possible way to sought and provides relief to the petitioner.
  • After hearing both the parties, the bench stated that the state of being in a coma cannot be construed that such a person is a physically challenged person or a mentally challenged person as is understood under the relevant statutes. Nor such a person can be construed to be a minor for the purpose of appointment of guardian.
  • It was quite evident that the relevant statutes relating to the appointment of guardians would not be applicable in cases associated with persons lying in a comatose condition or in a vegetative state.
  • In fact, there was a consensus at the Bar that at present there was no legislation in India relating to appointment of guardians to patients lying in comatose or vegetative state.

Reference to Civil Procedure Code, 1908

  • In Civil Procedure Code, 1908, there is Order XXXII-A dealing with suits relating to matters concerning the family. As per Rule 1(1), Order XXXII-A shall apply to suits or proceedings relating to matters concerning the family.
  • As per Rule 1(2)(c), provisions of the said Order shall apply to a suit or proceeding in relation to guardianship of a person or the custody of any minor or other member of the family, under a disability.
  • However, the word ‘disability’ was explained though the word “family” was.
  • As per Rule 6, for the purpose of Order XXXII-A, each of the instances mentioned therein shall be treated as constituting a family, such as, a man and his wife living together; any child or children being issue of theirs; or of such man or such wife; and any child or children being maintained by such man and wife.
  • From a reading of Order XXXII-A, a view may be taken that for appointment of guardian of a person who is a member of the family and is under a disability, a suit or a proceeding may be filed in which event provisions of Order XXXII-A would be applicable.
  • However, instead of filing a suit under the Code of Civil Procedure, 1908, petitioner has invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India.

Can writ jurisdiction of this Court be invoked under Article 226 of the Constitution of India?

  • The HC reminded everyone of the width and abundance of the power of the High Court’s under Article 226 of the Constitution of India.
  • Under Article 226(1), every High Court within its territorial jurisdiction has the power to issue directions, orders or writs to any person or authority including any government for the enforcement of fundamental rights and for any other purpose.
  • Thus, a High Court while exercising writ jurisdiction under Article 226 of the Constitution of India may issue any direction or order in addition to a writ to any person besides an authority including any government not only for the enforcement of any fundamental right but for any other purpose.
  • When the High Court exercises jurisdiction under Article 226 of the Constitution of India, it does so to further the cause of justice.
  • To provide justice is the most important purpose of the courts.
  • Thus, HC was of the view that reliefs sought for by the petitioner were reasonable and may be granted considering the peculiar facts and circumstances of the case.

Reference to Hindu Vedic Philosophy by the High Court

  • The Court, while accepting that there was no express legislation for deciding the guardian for a person on appointing guardians to patients lying in a comatose or vegetative state, the Hindu law could provide a basis for the same.
  • According to Hindu Vedic philosophy, marriage is a sanskar or a sacrament. What is essentially contemplated is a union of two souls.
  • The eternal being is composed of two halves i.e., the man and the woman. Both the halves are equal and one-half is incomplete without the other.
  • The Vedic philosophy reflects marriage as a union of two souls for life and hence partners could be appointed as guardians of each other.

Reference to Earlier cases by the High Court

  • In Saira Banu Muhammad Rafi vs State of Tamil Nadu, a similar case was filed before the High Court of Madras where the wife of one Muhammad Rafi sought a direction from the Court to appoint her as the guardian of her husband for managing his immovable properties as he was in a coma. The Court did so for the purpose of his wife dealing with his immovable properties and also for operating his bank accounts.
  • In Shobha Gopalakrishnan vs the State of Kerala, the Kerala High Court invoked its writ jurisdiction in a similar case. Perceiving that no remedy was provided under any statute to patients in a comatose state, it was held that the High Court would invoke its jurisdiction under Article 226, in such cases.
  • The Delhi High Court in Vandana Tyagi vs Government of National Capital Territory where the petitioners sought to remedy through their grievance against the State Bank of India for disallowing them to have recourse to the Public Provident Fund (PPF) account of their deceased father.

Therefore, it was held that in such circumstances, there is no doubt that theoretically, the wife could be the best guardian for her husband who is under a state of incapacity or disability on account of being in a comatose condition or vegetative state.

The Bombay High Court thereby affirmed that a spouse could be the best Guardian for his/her spouse and thus, appointed the spouse of a comatose man as his guardian for making it easier for her to access her husband’s finances to help to bear the costs of the family.

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