Saturday, February 27, 2021
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“Wife is Best Guardian”

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The Bombay High Court has appointed the spouse of a comatose man as his guardian in order to make it easier for her to access his bank accounts. Similar cases have seen courts taking a sensitive view of the situation.

By Shaheen Parween

The High Court of Bombay recently appointed a wife as the guardian of her husband who has been comatose since 2018. The bench comprising Justices Ujjal Bhuyan and Milind Jadhav, while noting that there was lack of legislative clarity about who could be designated a guardian of a person in a coma or vegetative condition, applied the doctrine of parens patriae evolved in the Aruna Shanbaug case and appointed the petitioner as her husband’s guardian.

Petitioner Rajni Hariom Sharma is the wife of Hariom Sharma who showed no signs of revival from coma. Besides the husband, the petitioner also has two sons, one of whom is a minor, and a mother-in-law to look after.

With mounting medical bills and other household expenses and hardly any income of her own, the petitioner stated that she was in a state of helplessness and sought relief from the Court.

On November 15, 2018, Sharma suffered a cardiac arrest while jogging, leading to sudden unresponsiveness. He was rushed to Kokilaben Dhirubhai Ambani Hospital and treated for almost three months. Despite extensive treatment, including surgeries, he did not recover, though his condition stabilised.

He was discharged from the hospital on February 6, 2019, but continued to remain in a vegetative state. As per the medical advice, he was required to take all necessary care under trained paramedic personnel 24×7 along with physiotherapy and speech therapy.

Despite all the care and monitoring, Sharma continues to be in a coma. According to his wife, the medical expenses incurred in looking after him were quite substantial. She had to create a well-equipped AC nursing room having amenities like a recliner bed, air mattress and life-saving support systems. Besides, a full-time nurse and part-time physio and speech therapist were appointed to continue the treatment.

In addition, she said her mother-in-law had age-related ailments and her children were dependent on her. That apart, there were household expenses too. When the petitioner approached concerned banks to allow her to put her signature in place of her husband’s, it was turned down; rather, she was advised to approach the competent court to get herself appointed as the guardian of Sharma.

Advocate Kenny V Thakkar, counsel for the petitioner, submitted that by virtue of being the wife of Sharma, she was in the best position to act as his guardian considering his comatose condition for over two years with no sign of revival. She can certainly be construed as the next friend and appointed as the guardian, he said.

On being asked by the Court on what basis she was invoking the writ petition, the counsel said that there was no statutory provision relating to appointment of a guardian for a person in a coma. Therefore, a writ court exercising jurisdiction under Article 226 of the Constitution would be in the best position to grant relief to the petitioner.

The counsel for the respondents, while not contesting the factual narrative of the petitioner, questioned the maintainability of the writ petition as they contended that the relief sought was a private relief, and invoking a public law may not be justified.

After hearing both the parties, the bench observed that “when we say that a person is in coma or in a comatose condition or in a vegetative state, it 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. As such, it is quite evident that the relevant statutes relating to appointment of guardians would not be applicable to persons lying in a comatose condition or in a vegetative state.

“In fact, there is consensus at the Bar that at present there is no legislation in India relating to appointment of guardians to patients lying in comatose or vegetative state”.

Referring to Hindu Vedic philosophy, the bench observed that “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. As long as the wife survives, one half of the husband survives”.

Concluding the order, the bench said:

“In such circumstances, there can be no manner of doubt that conceptually the wife can be said to be best-suited to be the guardian of her husband who is under a state of incapacity or disability on account of being in a comatose condition or vegetative state.”

In Sairabanu 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 State of Kerala, the Kerala High Court invoked its writ jurisdiction in a similar case. Noticing 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, something like parens patriae.

A similar issue recently cropped up before the Delhi High Court in Vandana Tyagi vs Government of National Capital Territory where the petitioners raised a grievance against the State Bank of India for not allowing them to have recourse to the Public Provident Fund (PPF) account of their deceased father.

The bench referred to the decision of the Kerala High Court in Shobha Gopala­krishnan following which the prayer made by the petitioners was allowed, appointing them as guardians of the PPF account of their father.

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