#writpetition

[soolegal]

𝐖𝐫𝐢𝐭 𝐩𝐞𝐭𝐢𝐭𝐢𝐨𝐧: 𝐐𝐮𝐨-𝐖𝐚𝐫𝐫𝐚𝐧𝐭𝐨.

For further information, refer to this Article by Adv. Abhishek Rathee.

[soolegal]

Yes, appeal can be filed against writ petition. To Know where and on what grounds contact our experts at SoOLEGAL.

[seemabhatnagar]

Separation of elderly couples by children is painful for them

Shiju K Bhanu v The District Collector & Maintenance Appellate & Ors.

Before Kerala High Court

The Kerala High Court recently by an order reunited an elderly couple, an 80-year-old woman with her 92-year-old husband. The husband was taken by the son to his residence for taking care of his father as he was suffering from Dementia.

The wife filed a Writ before Kerala High Court praying for direction to son to send his husband back to his home, whom she claimed had been unjustly separated from her by their son. More so she had expressed concerns about potential mistreatment by her son and his family based on past incidents

The Bench of Hon’ble Mr. Justice Devan Ramachandran emotionally remarked, “Till death do us part,” before issuing directives for the couple’s reunion at their family home.

The High Court took cognizance of reports submitted by a social justice officer and the police, which indicated that despite suffering from dementia, the husband found happiness and shared “good moments” with his wife.

The Court emphasized that the senior citizen husband should never be denied the company of his wife, as it was his inviolable and absolute right.

The couple’s son had argued that he took his dementia-afflicted father to his own residence because his mother was too unwell and elderly to provide the necessary care. He also cited a dispute with neighbors as a reason for not residing in the family home, where his mother lived.

Justice Ramachandran noted that the son’s reluctance to stay in the family house was primarily due to fears of confrontations with neighbors.

Government Pleader Vidya Kuriakose presented reports from a social justice officer indicating that the husband found the most happiness in the company of his wife and expressed a desire to live with her in the family home.

Kuriakose also highlighted that the local police had not reported any threats from the neighbors and were willing to take necessary steps to ensure the family’s safety.

The son personally appeared before the Court, asserting that these reports were manipulated to favor his mother’s interests. He contended that his mother’s actions were influenced by his sister and reiterated that he was the most capable of caring for his father due to his mother’s ill health.

Challenging an order from a senior citizens appellate tribunal to return his father to the family home, the son assured the Court of his father’s contentment living with him. He also offered to take care for his mother if she chose to relocate to his residence.

The Court, however, opined that the son could provide care for his father in the family home as well and directed a social justice officer to accompany the senior citizens to their family house and visit them weekly, filing monthly reports.

The Court clarified that the son was free to stay or visit the family house to be with his father, provided it aligned with his mother’s wishes. Additionally, the son could request police protection if he anticipated any threats.

Seema Bhatnagar

[seemabhatnagar]

Supreme Court and High Court are Parens Patriae in exceptional situations

In the larger interest of patient lying in permanent vegetative state, who was in urgent need of treatment, support the Court invoked its power under Article 226 of the Constitution of India, to deal with such situation and appointed the wife of patient as his Guardian allowed the wife to sell the land to meet the expenses for the treatment of his husband and issued guidelines for the use of money obtained through the sale of property and kept the locus of relative open to approach the court in case the interest of the patient is against the interest of the patient.

Pooja Sharma v. State of UP & 2 Others

WP (C) 26406/2023

Allowed by Allahabad High Court on 06.10.2023

Background

Husband of the petitioner met with an accident and sustained serious head injury and since than is lying in a comatose state and is in unresponsive wakefulness bed ridden and completely dependent on caregivers for basic needs.

The petitioner wife, who comes from a very average family, works at private place to make her two ends meet. She has a minor son also to take care of & has been subjected to lot of medical expenses. Having exhausted all financial resources, she was in despair, isolation and abandonment besides undergoing agony, stress on account of her husband lying in “permanent vegetative state”.

Prayer of the petitioner wife

Having no other alternative to meet the medical expenses the petitioner wife took the shelter of the Court by filing Writ Petition seeking direction from the Court for permitting her to sell the piece of land purchased by her husband to meet out the expenses of his treatment and was also seeking direction to the government to help her in the treatment of his husband.

Submission of the Petitioner Wife

In India there is no legislation, which provides for appointment of Guardian for a person in comatose state, unlike legislations for appointment of ‘Guardian for minors’ and persons with other disabilities like mental retardation etc.

The Court accorded permission to the petitioner wife also appointed her as guardian of her husband vide its order dt.06.10.2023 with clear guidelines to ensure the interest of the husband who is in a comatose state is protected.

View of the Court

The matters came up before the Court on 20.9.2023, Court and was allowed by the Division Bench of the Allahabad High Court comprising Hon’ble Mr. Justice Mahesh Chandra Tripathi J Hon’ble Mr. Justice Prashant Kumar J on 06.10.2023.

1.     Before proceeding with the relief prayed for, Court considered it appropriate to verify the present mental status of the petitioner’s husband.

2.     Since the petitioner was living in Delhi so Court found it proper to get the Petitioner’s husband examined by the medical board of AIIMS consisting of specialist doctors dealing with such kind of ailments. The petitioner’s husband was examined by the AIIMS Medical Board.

3.     A perusal of the report of the Medical Board shows that the petitioner's husband is in coma and in vegetative state and is not in a situation to take a decision or to execute any conveyance.

4.     He needs a guardian to take care of him, his property and his affairs.

Opinion of the Medical Board

1.     The MRI Brain scans of date 18.07.2023 showed poor clinical condition of the patient, the board was of the opinion that the patient will require prolonged supportive and nursing care and is unlikely to make significant neurological recovery in near future and may require frequent hospital visits for health needs.

Observation of the Court

1.     The issue before the Court in view of the Medical Report was not just limited to allow selling a piece of land in the name of the petitioner’s husband but also to look for the welfare of the petitioner.

Issue before the Court in view of the Report of the Medical Board

Who should be the Guardian of a person who can administer or handle the property of such a person who is in comatose state, as he does not fall under the ambit of mental illness nor will come under the ambit of person with disabilities.

2.     The Mental Healthcare Act, 2017 & The Rights of Persons with Disabilities Act, 2016, provide for appointment of Support/Guardian for People with Particular Disabilities/Mental Illness, but do not address the situation of a person, who is in comatose state.

3.     For a person in comatose state, who would not respond to any stimuli and in the larger interest of patient, who is in urgent need of treatment, support and for that the petitioner wife need funds to take care of this extraordinary situation, cannot be ignored or compromised, hence, the Court is consciously bound to invoke power under Article 226 of the Constitution of India, to deal with such situation.

4.     Looking to the health condition of husband of the petitioner, it was clear that he needs 24 hours medical assistance & it was also neede that a constraint Court may act as Parens Patriae* so as to meet the ends of justice.

Parens Patrie* Hon’ble Apex Court in the case of Shafin Jahan v. Ashokan K M & Others had observed …… There are situations when the Court can invoke the parens patriae principle and the same is required to be invoked only in exceptional situations……..

Guidelines issued by the Court

1.     Petitioner wife is appointed as guardian of her husband who is in comatose state.

2.     She will have the right to take decisions on behalf of her husband for his proper medical treatment, nursing care, welfare and benefit of her husband and their children with power to do all acts, duties and things with respect to all the assets, properties of her husband

3.     She is allowed to sell the land situated

4.     The entire sale consideration will be deposited with the Registrar General of this Court. This amount should be invested in a fixed deposit so that the petitioner gets the maximum interest. Registrar General is further directed to request the bank to remit Rs.50,000/- every month in the account of the petitioner

5.     While selling the properties of her husband Vikas Sharma, the petitioner may ensure that the best possible price or consideration amount is fetched.

6.     In case, any relative or friend of the person lying in comatose state points out that guardian is not acting in the best interest of the person lying in comatose state, such person will also have the locus to approach this Court for issuance of proper direction and for removal of the guardian.

Seema Bhatnagar

[soolegal]

The Hon’ble Kerala High Court in a Writ Petition (C) No. 5627 of 2019 held that the Kerala State Human Rights Commission has no jurisdiction to entertain service matters.

For further information, refer to this News Report By SoOLEGAL.

[soolegal]

Yes, appeal can be filed against writ petition. To Know where and on what grounds contact our experts at SoOLEGAL

Contact Details: [phone] [email protected]

[lawzgridlegalfirm]

WRIT PETITION AND THE CONSTITUTION OF INDIA

Writ petition is a petition of court, asking a court to intervene in lower court's decision. There are 5 writs which can be issued by the Supreme Court and the High Courts

WRIT PETITION 

 The Supreme Court and High Courts in India have been vested with the power to issues appropriate directions, or orders or writs for the enforcement of the fundamental rights. 

Various writs which can be issued are: 

Habeas Corpus: This writ is issued in form of an order calling upon a person by whom another person is detained to bring the person before the court and let the court know why the authority has detained the person. 

 Mandamus: This writ is an order by the superior court commanding a person or a public authority to do or forbear to do something in the nature of public duty. 

Prohibition: This writ is issued primarily to prevent an inferior court or tribunal from exceeding its jurisdiction or acting contrary to the rules of natural justice. 

Certiorari: This writ is issued by a superior court to an inferior court to prevent an excess or abuse of the jurisdiction 

Quo Warranto: This writ is issued to call upon a holder of the office to show to the court under what authority he holds the office.