A co-joint reading of the above-extracted
provisions substantiates that the District Court or the
designated Authority are empowered to appoint a
limited guardian for a person who is suffering from a
disability as defined under Section 2(s) of the
Disabilities Act, which includes mental disability. {Para 9}
10. It is as per the provisions of the
Disabilities Act that the designated authority had
passed Exts.P14 and P15 orders.
11. On an analysis of the scheme of the
Disabilities Act, a person can only be appointed as a
limited guardian because the office of guardianship
operates on a mutual understanding and trust between
the guardian and the person with a disability for a
specific purpose or situation or to take a particular
decision in accordance to the will of the person with a
disability. Presumably, it is in the above context that the
Parliament, in its wisdom, has only permitted limited
guardianship and not permanent guardianship.
Therefore, the concept of permanent guardianship is
alien to the Disabilities Act. Similarly, there is no
provision under the National Trust Act to appoint a
guardian for a person with mental illness. (Read the
decision of this Court in Latha T.B @ Latha Ravi and
others v. Union of India [2021(3) KHC 304].
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) NO.25127 OF 2024
BINDUMOL A T Vs UNION OF INDIA
PRESENT
MR.JUSTICE C.S.DIAS
8TH DAY OF JANUARY 2025.
Citation: 2025:KER:1151
The 1st petitioner is the wife of the 2nd petitioner.
The 2nd petitioner is suffering from 45% permanent
disability due to bipolar affective disorder. The 2nd
petitioner’s father, M.G.Sarangapani, worked as a
Subedar with the Corps of EME in the Indian Army.
M.G.Sarangapani received pension till his death on
15.01.2020. The 2nd petitioner's mother had predeceased his father. After the death of the 2nd
petitioner's father, he applied for family pension. By
Ext.P8 letter, the 7th respondent directed the 2nd
petitioner to submit certain documents, including a
legal guardianship certificate. Consequently, by
Exts.P14 and P15 orders, the 1st petitioner was
appointed as the limited guardian of the 2nd petitioner.
After the expiry of the period in Ext.P15 order, the
petitioners filed an application before the Local Level
Committee constituted under the National Trust for the
Welfare of Persons with Autism, Cerebral Palsy, Mental
Retardation and Multiple Disabilities Act, 1999
(‘National Trust Act’, in short), to appoint the 1st
petitioner as the legal guardian of the 2nd petitioner.
However, the Committee rejected the application on the
finding that there is no provision under the National
Trust Act to appoint a legal guardian for a person with
a disability. There is no enactment in the country that
enables the appointment of a permanent legal guardian
for a person with mental disability. Hence, this Court
may declare the 1st petitioner as the permanent legal
guardian of the 2nd petitioner and direct the
respondents 5 to 7 to disburse the family pension.
2. Heard: the learned counsel for the
petitioners, the learned Deputy Solicitor General of
India, the learned Government Pleader, the learned
Standing Counsel for the 9th respondent and the learned
Amicus Curiae.
3. Exts.P2, P4, and P5 medical certificates prove
that the 2nd petitioner is suffering from 45% permanent
disability due to bipolar affective disorder.
4. By Ext.P14 order, the 1st petitioner was
appointed as the limited guardian of the 2nd petitioner
for three months from 26.05.2023 under the Rights of
Persons with Disabilities Act, 2016 (‘Disabilities Act’,
for brevity) by the designated Authority. Subsequently,
by Ext.P15 order, the 1st petitioner was re-appointed as
the limited guardian of the 2nd petitioner for nine
months from 06.04.2024 by the same Authority.
5. After the expiry of the period in the Ext.P15
order, the petitioners applied to the Local Level
Committee to appoint the 1st petitioner as the guardian
of the 2nd petitioner under the National Trust Act, which
was rejected by the impugned Ext.P16 order.
6. The bone of contention of the learned
Counsel for the petitioner is that there is no law which
enables the appointment of a permanent legal guardian
for a person with a mental disability.
7. In the above context, it is pertinent to refer to
Section 2(s) of the Right of Persons with Disabilities
Act, 2016, which reads as follows:
“person with disability” means a person with long
term physical, mental, intellectual or sensory impairment
which, in interaction with barriers, hinders his full and effective
participation in society equally with others;”
(highlighted)
8. It is also relevant to refer to Section 14 of the
Disabilities Act, which reads as follows;
“14. Provision for guardianship.—
(1) Notwithstanding anything contained in any other law for
the time being in force, on and from the date of
commencement of this Act, where a district court or any
designated authority, as notified by the State
Government, finds that a person with disability, who had
been provided adequate and appropriate support but is
unable to take legally binding decisions, may be
provided further support of a limited guardian to take
legally binding decisions on his behalf in consultation
with such person, in such manner, as may be prescribed
by the State Government:
PROVIDED that the District Court or the designated authority,
as the case may be, may grant total support to the person
with disability requiring such support or where the limited
guardianship is to be granted repeatedly, in which case, the
decision regarding the support to be provided shall be
reviewed by the Court or the designated authority, as the case
may be, to determine the nature and manner of support to be
provided.
Explanation.—For the purposes of this sub-section, “limited
guardianship” means a system of joint decision which
operates on mutual understanding and trust between the
guardian and the person with disability, which shall be limited
to a specific period and for specific decision and situation and
shall operate in accordance to the will of the person with
disability.
(2) On and from the date of commencement of this Act, every
guardian appointed under any provision of any other law for
the time being in force, for a person with disability shall be
deemed to function as a limited guardian.
(3) Any person with disability aggrieved by the decision of the
designated authority appointing a legal guardian may prefer
an appeal to such appellate authority, as may be notified by
the State Government for the purpose.”
(emphasised)
9. A co-joint reading of the above-extracted
provisions substantiates that the District Court or the
designated Authority are empowered to appoint a
limited guardian for a person who is suffering from a
disability as defined under Section 2(s) of the
Disabilities Act, which includes mental disability.
10. It is as per the provisions of the
Disabilities Act that the designated authority had
passed Exts.P14 and P15 orders.
11. On an analysis of the scheme of the
Disabilities Act, a person can only be appointed as a
limited guardian because the office of guardianship
operates on a mutual understanding and trust between
the guardian and the person with a disability for a
specific purpose or situation or to take a particular
decision in accordance to the will of the person with a
disability. Presumably, it is in the above context that the
Parliament, in its wisdom, has only permitted limited
guardianship and not permanent guardianship.
Therefore, the concept of permanent guardianship is
alien to the Disabilities Act. Similarly, there is no
provision under the National Trust Act to appoint a
guardian for a person with mental illness. (Read the
decision of this Court in Latha T.B @ Latha Ravi and
others v. Union of India [2021(3) KHC 304].
12. In the above background, the
petitioners’ prayer to appoint the 1st petitioner as the
permanent legal guardian of the 2nd petitioner is
untenable.
13. In Abootty K A v. Kolangottil Pathumma
[2023 (6) KLT 368], this Court has held that the
District Court and the competent Authority have
concurrent jurisdiction to appoint a guardian for a
person with a disability.
14. The Local Level Committee has rightly
rejected the petitioners' application for guardianship
under the National Trust Act. I find no error in Ext.P16
order warranting interference by this Court. In view of
the alternative statutory remedy available to the
petitioners under the Disabilities Act, I am not inclined
to exercise the plenary powers of this Court to declare
the 1st petitioner as the permanent legal guardian of
the 2nd petitioner. It would be up to the petitioners to
either seek an extension of the limited guardianship
order passed by the designated authority or to
approach the District Court for a similar relief under
Section 14 of the Disabilities Act. On the petitioners
producing an order of limited guardianship before
respondents 5 to 7, they are directed to take a decision
on the 2nd petitioner's application for family pension.
The assistance rendered by the learned Amicus Curiae
is appreciated.
The writ petition is ordered accordingly.
Sd/-C.S.DIAS, JUDGE
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