Wife is the natural guardian of a comatose husband

Isha Sawant | Government Law College | 6th September 2020

Rajni Hariom Sharma v. Union of India

Facts:

The petitioner- Rajni Hariom Sharma approached the Bombay High Court under Article 226 of the Indian Constitution. On 15-11-2018, the petitioner’s husband- Mr. Hariom Sharma had suffered a cardiac arrest while jogging and became unresponsive, he was taken to the Kokilaben Dhirubhai Ambani Hospital and Medical Research Institute. Despite treatment for almost three months and surgeries, the patient showed very little improvement and remained in a comatose state. He was discharged from the said hospital on 06-02-2020 although he continued to remain in a paralytic vegetative state. The Doctors advised that he was to receive all necessary care under a paramedic personnel along with physiotherapy and speech therapy. The petitioner followed the advice given by the doctors religiously, but the patient continues to remain in vegetative state from 15-11-2018 till date. The petitioner married Mr. Hariom Sharma on 20-02-1999, they have two sons one of whom is minor, the petitioner’s mother-in-law stays with them, all of them are financially and otherwise dependant on the petitioner.

The petitioner’s husband was a businessman, he was a director of several companies and a partner in a firm, in all these businesses he has a share of 40% -50%. According to the petitioner, her husband’s medical expenses, along with cost of creating a fully equipped nursing home for him in the house and the fees for the paramedic, physiotherapist and speech therapist are quite substantial. Besides the petitioner’s children and mother-in-law are dependent on her and she had to bear the household expenses for her and her family. The petitioner owns 10% share in M/s Solus Security System Private Limited, one of the companies in which her husband is a Director; but the income through such shareholding is insufficient. Her husband not being in the state to look after his business interests, she has to act as a guardian to safeguards his business and other interest along with providing for the family. When the petitioner approached the concerned banks to sign in place of her husband, she was denied the same and was advised to approach a competent court to be appointed as a guardian of her husband. The petitioner has thus filed a writ petition before the court to seek declaration that she is the guardian of her husband who is in a comatose state, and to direct the respondents and institutes functioning under them to allow the petitioner to represent interests of Mr. Hariom Sharma and to discharge functions on his behalf. 

Issues:

• Whether the petitioner can file such a petition under Article 226 of the Indian Constitution
• Whether the petitioner can be appointed as a guardian of her husband who is in a vegetative state.

Legal Provisions:

• Constitution of India, Article 226 – Powers of High Courts to issue certain writs.
• Civil Procedure Code, 1908 Order XXXII-A. 

Petitioner’s Contention:

The petitioner contended that her husband’s ailment being sudden and unexpected she has to bear his medical expenses as well as the family expenses like her mother-in-law’s medical issues and the educational expenses of her two sons and with a limited income she is unable to meet all these expenses. They also submitted that the petitioner’s major son and mother-in-law have consented to her being Mr. Hariom Sharma’s guardian, the other son being a minor she is his natural guardian. They also stated that though Mr. Hariom is in a comatose and vegetative state he still has a fundamental right to live with dignity as per Article-21 of the Constitution. They also submitted that there is no statutory provision for appointment of a guardian for a patient in comatose or vegetative state, therefore the petitioner has approached the Court under Article-226 of the Constitution. The counsel for the petitioner also submitted that petitioner by virtue of being the wife of Mr. Hariom Sharma, she is best suited to be appointed as his guardian considering the fact that he has been in a comatose and vegetative state for the last two years with no scope for his revival. On the court’s query why, they had filed for writ jurisdiction the petitioner submitted that there was no statutory provision for the same and relied on the judgements in the cases of Shobha Gopalakrishnan v. State of Kerala (2019); Vandana Tyagi v. Government of National Capital Territory of Delhi (2020); Uma Mittal v. Union of India (2020); Dr. Madhu Vijaykumar Gupta v. State of Maharashtra (2019); they particularly referred to the case of Philomena Leo Lobo v. Union of India (2017) submitting that the present writ petition is identical to the writ petition in the said decision and so a similar order may be passed. 

Respondent’s Contention:

The counsel for the respondents did not raise any disputes on the facts submitted by the petitioner however, they have questioned the maintainability of the writ petition. They contended that since the relief sought is a private relief a public law remedy may not be justified. The also submitted that in the absence of details the Court may not just pass an order making the petitioner her husband’s legal guardian. 

Observations of the Court:

The writ petition was heard by the Bombay High Court Bench of Ujjal Bhuyan and Milind N. Jadhav. The court went through Mr, Hariom Sharma’s discharge summary and the medical advice and certificates issue to him by the Doctors of Kokilaben Dhurubhai Ambani Hospital. The court observed that since the facts presented by the petitioner are not questioned by the respondent they will, therefore, proceed on the basis of correctness of the facts. The court then mentioned that Order XXXII-A of the Code of Civil Procedure, 1908 shall apply to suits and proceedings relating to appointment of guardians of any minor or any other family member under a disability, so a suit under this provision could be applicable, however in the present case the petitioner has filed a writ application under A-226 of the Constitution.

The court observed the status of the petitioner in relation to her husband, both of whom are Hindus. The court stated that under Hindu Marriage, husband and wife are considered to be equal partners, and according to Dharma a wife is under obligation to perform all duties of her husband; the court relied on the decision of the Supreme Court in the case of Kollam Chandra Shekhar Prasad vs. Kollam Padma Latha. In the present case the petitioner and her husband have been married for more than 20 years, have two sons together which is long enough to judge the stability of their relationship especially since the petitioner seeks guardianship of her husband. On whether the application should have been made under Article-226 or not, the court referred to the case of Aruna Shanbaug where the Supreme Court had discussed the doctrine of parens patriae, referring to the decision of the Constitution Bench in the case of Charan Lal Sahu vs. Union of India (1990) wherein the concept of parens patriae was explained as the right and duty of the sovereign under public interest to protect persons under disability who have no rightful protector- this duty in modern times is taken over by the State, also under Article-12 of the Constitution the Courts fall within the meaning of ‘State’.

The court then referred to the decision of the Madras High Court in the case of Saira Banu Muhammad Rafi vs. State of Tamil Nadu (2016), wherein it appointed the petitioner as her husband’s guardian for the purpose of dealing with his immovable property and his bank accounts. Similarly, the court observed the decisions of the cases the petitioner referred and relied upon, in all these cases the petitioner had invoked the writ jurisdiction of the Courts under Article-226 for claiming guardianship of their husbands or other family members. The court then observed that the scope of the High Courts under Article 226 is not limited to enforcement of fundamental rights but it can issue any order or direction to any authority including the government for any other purpose; the High Court exercises this jurisdiction so to further the cause of justice as established by the doctrine of exdebito justiciae.  

Judgement:

The court considering the facts and circumstances of the case held that the relief sought by the petitioner is reasonable and appointed her as Mr. Hariom Sharma’s guardian. To ensure that its order is followed properly, the court directed the Maharashtra Legal Services Authority to either through its officials or through a legal aid, monitor the functioning of the petitioner as her husband’s guardian, and submit a report every three months to the Maharashtra Legal Services Authority which is to be complied for a period of two years.