Full Judgment Text
2024:BHC-AS:6380-DB
914-WP-15636-2023.DOC
Ashvini Narwade
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDITION
WRIT PETITION NO.15636 OF 2023
Janaki Suresh
Age 50 years, Occupation : Housewife
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Residing at 551, H-block, 17 Street,
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16 Main Road, Anna Nagar West,
… Petitioner
District-Chennai, Tamil Nadu-600040
Versus
1. Union of India
Through the Secretary, Woman and
Child Welfar, Through office of
Law & Justice, New marine Lines
Mumbai 40020.
2. State of Maharashtra
Through the office of Govt. Pleader
3. Ministry of External Affairs, New Delhi.
Through the Secretary, Woman and
Child Welfar, Through office of
Law & Justice, New Marine Lines,
…Respondents
Mumbai 400 020.
Ms. Kenny Thakkar a/w. Mr. Mehul Rathod, Mr. Laxminarayan Shukla for
the Petitioner.
Ms. S. D. Vyas, Addl. G. P. with. P. J. Gavhane, AGP for Respondent-State.
Mr. Y. S. Bhate a/w. Vaibhav R. Gargade i/b. Rahul Tiwari for Respondent
No.1 (UOI).
_______________________
CORAM: G. S. KULKARNI &
FIRDOSH P. POONIWALLA, JJ.
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DATED: 7 FEBRUARY, 2024
_______________________
Oral Judgement (Per G. S. Kulkarni J.):-
1. Rule. Rule made returnable forthwith. Heard finally by consent of the
parties.
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2. This Petition, under Article 226 of the Constitution of India, is filed
praying for the relief that the Petitioner-Mrs. Janaki Suresh be declared as the
legal Guardian of Mr. Suresh Subramanian Iyer (for short “Mr. Iyer”), who is in
comatose condition, and for other consequential reliefs in the nature of
direction to the Respondents as also all the concerned Banks, Depository,
Financial Institutions to allow the Petitioner to operate/ represent the affairs of
Mr. Iyer.
3. The case of the Petitioner as set out in the Petition is that the Petitioner
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got married to Mr. Iyer on 9 September 1996. It is stated that they have three
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children, namely, Osho Suresh born on 26 August 1998, Ponni Suresh born
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on 3 June, 2000 and Sachi Suresh born on 27 November 2007. The
Petitioner has stated that the mother-in-law of the Petitioner, Mrs. Savithri
Subramanian, is 78 years old and is currently residing in Thane. The Petitioner
has annexed photocopies of her Aadhar Card and also the Aadhar Card of Mr.
Iyer.
4. The Petitioner has contended that her husband, Mr. Iyer, has been
employed with Abu Dhabi National Oil Company. She states that on or about
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8 December 2021, Mr. Iyer was brought to AL Dhannah Hospital in Ruwais,
Abu Dhabi, to the emergency department, in an unconscious state. She has
described the medical condition of Mr. Iyer at the time when he was admitted
in paragraph 5 of the Petition to contend that, since the time he was brought to
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the hospital, till the date of filing of this Petition, he was in a vegetative state.
Mr. Iyer was shifted to long term acute care for supportive care, physiotherapy
and rehabilitation. The Petitioner has stated that, since the date of Mr. Iyer’s
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hospitalization, i.e., from 8 December 2021, he has remained in a vegetative
condition and there has been very little progress in his health condition. She
has annexed to the Petition as Exhibit-C a Medical Certificate dated
02/08/2023 issued by the doctors confirming the fact that Mr. Iyer still
continues to remain in persistent vegetative state and that his is unable to speak
or sign or communicate in any manner.
5. The medical report of AL Dhannah Hospital dated 02/808/2023 needs
to be noted which reads thus:-
“AL DHANNAH HOSPITAL
TO WHOM IT MAY CONCERN
MEDICAL REPORT
Date:02-08-2023
Name : Mr. SURESH SUBRAMANIAN
IYER
Medical Record Number : MA2200000042612
Nationality : Indian
Gender : Male
DOB : 31-05-1966
Registered Contact Number : 0504925169
Doctor Name : Dr. RaSha Sadek
Mohamed Shehata
56-year-old male patient admitted on long term care as hypoglycemic
encephalopathy, this patent arrested at home by hopoglycemia CPR
done return pulse but kept in vegetative state.
Patient on PEG tube and Tracheostomy.
Generalized muscle wasting no movement only spontaneous eye
opening.
Hemodynamically stable on room air.
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For multidisciplinary Care nursing, physiotherapy, and occupational
care.
Dr. Osman Mohammed Rafi Uz Zaman
Hospital Administrator”
6. She stated that, due to his health condition, it is not possible for Mr. Iyer
to manage his assets, including Bank Accounts. The Petitioner has set out at
Exhibit-D the details of two Bank Accounts and a Demat Account of Mr. Iyer.
She has further stated in the Petition that Mr. Iyer was the sole earning member
of the family and, in the absence of any income support from Mr. Iyer, the
Petitioner has to take care of herself and her three children and run the
household on her own. She had approached the Banks and also Depository
with a request to allow her to sign and comply necessary formalities in place of
Mr. Iyer. However, her request has been declined by the Banks and the
Depository with a request to get herself appointed as the guardian or get an
appropriate order from a competent Court of law, so as to enable her to manage
the Bank Account and Demat Account of Mr. Iyer.
7. She has stated that due to sudden ill health and comatose condition of
her husband she has to take care of his affairs and their children. She has stated
that her husband needs to be given constant medical care under trained
paramedics to keep him in a good and dignified condition and to sustain his
life. She also stated that she has been incurring huge financial expenses and Mr.
Iyer had made some emergency reserves but the same are now almost
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exhausted as the same were not with a plan that he will be in a vegetative state,
wherein his routine work life would come to a standstill. It is therefore her
contention that, due to comatose condition of her husband, she is facing
financial constraints for maintenance of herself as also Mr.Iyer and their family,
which includes his mother and three children. She also stated that she would be
required to spend on the studies of her two children, who intend to pursue
higher education, and a minor daughter, but there are constraints due to such
limited financial resources. The Petitioner has also contended that the mother
of Mr. Iyer is 78 years of age and she has consented to the Petitioner being
appointed as the legal guardian of Mr. Iyer. She has annexed the consent
affidavits of her three children and also the mother of Mr. Iyer at Exhibit-E to
Exhibit-H.
8. It is in these circumstances, the Petitioner is before the Court praying for
the following substantive prayers:-
“b. That, this Hon’ble Court be pleased to issue a Writ of Mandamus or
any other appropriate writ, order or direction in the nature of
Mandamus declaration that the Petitioner Mrs. Janaki Suresh as the
guardian of Mr. Suresh Slubramanian Iyer who is in comatose
condition;
c. That, the Hon’ble Court be pleased to issue a Writ of Mandamus or
any other appropriate writ, order or direction in the nature of
mandamus directing the Respondents, as well as all the concerned
banks, depository, finance institutes, etc. to allow the Petitioner to
operate/represent with the affairs of Mr. Suresh Subramanian Iyer in
terms of finance, on such terms and condition as deem fit to this
Hon’ble Court.”
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9. A co-ordinate bench of this Court, of which one of us (Justice Firdosh P.
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Pooniwalla) was a member, by an Order dated 21 December 2023, had
directed the Dean of All India Institute of Medical Sciences, New Delhi (for
short “AIIMS”) to constitute a Medical Board to acertain the medical condition
of Mr. Iyer. The relevant paragraph of the said Order can be noted here, which
reads thus.
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On 15 December 2023, the learned Counsel for the Petitioner was
directed to give notice to the Standing Counsel for the Respondent
no.1. Accordingly, Mr.Rahul Tiwari, learned counsel has entered his
appearance for Respondent no.1. On instructions, he submits that the
Medical Board of Doctors from All India Institute of Medical Sciences,
New Delhi can undertake steps to assess the medical condition of the
patient through Video Conferencing. To enable this to be done, the
Dean, All India Institute of Medical Sciences, New Delhi is requested
to constitute a team of Doctors who can take necessary steps to consider
the medical state of Mr.Suresh Subramaniam Iyer who is presently
taking treatment at Abu Dhabi. Such steps be taken within a period of
two weeks from today. This exercise can be undertaken through Video
Conferencing and in consultation with local Government Doctors who
are treating the said patient. The report indicating the state of health of
the said patient be placed on record by the returnable date.
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10. Thereafter, the proceedings were listed before us on 22 January 2024.
Considering the report of the AIIMS that it was not possible for the Medical
Board constituted by the AIIMS to verify the medical condition of Mr. Iyer by
Video Conferencing, this Court was of the opinion that it would be appropriate
that the Indian High Commissioner for UAE be directed to ascertain the
medical condition of Mr. Iyer by obtaining an appropriate certificate. We note
the said Order which reads thus:-
“1. In pursuance of the order dated 21 December, 2023 passed by a co-
ordinate Bench of this Court whereby the Dean of All India Institute of
Medical Sciences (AIIMS), New Delhi was requested to constitute a
team of Doctors to take necessary steps to consider the medical state of
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the petitioner’s husband Mr. Suresh Subramaniam Iyer, who was being
treated at Abu Dhabi and was stated to be in a vegetative state as per
the medical report of the AL Dahannah Hospital (Exhibit ‘C’). In
pursuance thereto, a Medical Board was immediately constituted by
AIIMS on 21 December, 2023. A report dated 26 December, 2023 of
the AIIMS is placed on record which states that the Medical Board was
constituted at AIIMS, New Delhi under the Chairmanship of Dr.
Nikhil Tandon, Professor and Head, Department of Endocrinology. It
is recorded that as per the preliminary mail received by the Medical
Board, it was observed that the patient Mr. Suresh Subramaniam Iyer
was diagnosed as “Hypoglycemic Encephalopathy” at AL Dahannah
Hospital, AI Dhafra, Abu Dhabi, U.A.E. It is stated that other than
the diagnosis, no medical reports nor the contact number of the patient
attendants details were shared with the Medical Board members. It is
further recorded that the Member Secretary of the Medical Board tried
calling Advocate Rahul Tiwari on the numbers as stated to get more
details of the patient but all efforts went in vain, as he himself did not
have any contact details of the patient’s attendant. The report finally
records that all the members of the Medical Board opine that it was not
possible for them to examine the patient, who is unconscious and in
vegetative state, through video call. Hence, the current health
condition of Mr. Suresh Subramanian Iyer cannot be updated as
requested.
2. Such report as made by the Medical Board constituting of six
doctors was addressed to the Medical Superintendent, New Delhi, who
forwarded the report, to be placed on record of this Court vide letter
dated 26 December, 2023.
3. In view of the aforesaid report as forwarded by the AIIMS, New
Delhi, it appears that although a medical report of the AL Dahannah
Hospital is on record to state that Mr. Suresh Subramanian Iyer is in a
vegetative state, his medical could not be appropriately verified by the
Medical Board constituted by AIIMS of six doctors.
4. Learned counsel for the petitioner has submitted that the legal
representative of Mr. Suresh Subramaniam Iyer, namely, the petitioner,
three children as also the mother are all in India. As such, no relative in
the family is available with the petitioner. It is stated that the foreign
employer is also taking care of the patient.
5. In this view of the matter, in our opinion as now the Ministry of
External Affairs is also impleaded as party-respondent, we would have
no alternative but to request the Indian High Commissioner for U.A.E.
to get certified and affirm the health condition of Mr. Suresh
Subramaniam Iyer as recorded in the report of AL Dahannah Hospital,
Abu Dabi, U.A.E (Exhibit-C). Learned counsel for the respondent
shall immediately forward a copy of the said medical report of the AL
Dahannah Hospital, Abu Dabi, UAE, through the Ministry of External
Affairs to the Indian High Commissioner, who shall take appropriate
steps so that on the adjourned date of hearing on the report of the
Indian High Commissioner the medical condition of Mr. Suresh
Subramaniam Iyer is placed on record of this Court.
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6. We accordingly adjourned the proceedings to 30 January, 2024
(H.O.B.).
7. Parties to act on the authenticated copy of this order.”
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11. Thereafter the proceedings were listed before us on 5 February 2024,
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when on behalf of the Respondents, a Report dated 11 January 2024, was
placed before us as forwarded by Dr. R. Balaji, Counsellor (CA&V) Embassy of
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India, Abu Dhabi, which was a report prior to our Order dated 22 January
2024. So as to have the latest report, while adjourning the proceedings, we
passed the following order:-
“1. Mr. Bhate, along with Mr. Vaibhav Gargade, have today placed on
record an e-mail addressed by Dr. R. Balaji, Counsellor (CA&V),
Embassy of India, Abu Dhabi and also a trailing mail. The said e-mail
is to the following effect:-
Subject: Re !!!URGENT-WP/15636/2023(Civil)
Dear Sir/Madam,
Reference trailing email in respect of order of Hon’ble
Bombay High Court WP./15636/2023 (civil) regarding
certified medical report of Mr. Suresh Subramanian Iyer
(patient MR Number : MA2200000042612),
2. In this regard, please find attached medical report-
LTC ward deated 11.01.2024 of Mr. Suresh Subramanian
Iyer (patient MR Number : MA2200000042612) who is
currently admitted in AL Dhannah Hospital, Al Dhannah
City, Abu Dhabi Emirate.
3. This is for your kind information please
Thanks and Regards,
Dr. R. Balaji
Counsellor (CA&V)
Embassy of India, Abu Dhabi”
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2. There is a Medical Report dated 11 January 2024, titled as
“Medical Report – LTC Ward” which, inter alia, describes the physical
condition of Mr. Suresh Iyer, the Petitioner’s husband, as being in a
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vegetative state with spontaneous eye opening and not communicating.
A photocopy of the said Medical Report is placed on record.
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3. However, the Report is dated 11 January 2024, that is prior to our
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Order dated 22 January 2024. Since this Report is prior to our Order,
it would be appropriate that Dr. R. Balaji, Counsellor (CA&V),
Embassy of India, Abu Dhabi forwards the latest report or a
confirmation that the medical condition of Mr.Suresh Iyer, as reflected
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in the Report dated 11 January 2024, is his condition as on date.
4. Let such report be forwarded immediately by e-mail on or before the
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adjourned date of hearing. Place the matter on 7 February 2024, on
the Supplementary Board.
5. We have taken on record a copy of the letter of Dr. R. Balaji,
Counsellor (CA&V), Embassy of India, Abu Dhabi along with the
Trailing Mail and the Report, which are marked “X-1”, “X-2” and “X-3”
for identification.”
12. Today, Mr. Bhate as also Mr. Tiwari have appeared before the Court to
place on record an e-mail received from Dr. R. Balaji, Counsellor (CA&V)
Embassy of India, Abu Dhabi, addressed to the Counsel for the Respondents,
enclosing the latest Medical Report of Mr. Iyer who is currently admitted at the
AL Dhannah Hospital, AL Dhannah City, Abu Dhabi, Emirates. The report as
submitted is a Medical Report titled as “Medical Report -LTC Ward” issued by
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the AL Dhannah Hospital dated 6 February 2024, describing Mr. Suresh
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Subramanian Iyer, Patient MR No. MA2200000042612 admitted on 8
December 2021, in a vegetative state. The relevant findings as stated in the
Medical Report are required to be noted, which reads thus:-
Primary diagnosis:
Diabetic hypoglycemic comatose
Secondary diagnosis:
DM type 2, IHD, Hypertention, Localization-related (focal) (partial)
symptomatic epilepsy and epileptic syndromes with simple partial
seizures, not intractable, without status epilepticus.
History of Present Illness:
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Patient in vegetative state after ost arrest on tracheostomy and PG
tube for long term care.
Physical Examination:
Patient on vegetative stat spontaneous eye opening not
communicate.
Hemodynamically stable
Chest clear quail air entry
abdomen lax
There is contracture in both upper and lower limbs and sever muscle
wasting, no bed sore”
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13. It is thus clear that not only the latest Report dated 6 February 2024
i.e., a day before we are passing this Order, but also the earlier reports as
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annexed to the Petition by the Petitioner as also the Report dated 11 January
2024 are all consistent to state that Mr. Iyer is in a Comatose state.
14. Considering such condition of the Mr. Iyer, learned Counsel for the
Petitioner submitted that this is a fit case where this Court needs to exercise its
jurisdiction, and by applying the principles of the doctrine of parens patriae,
appoint the Petitioner as a legal guardian of her husband Mr. Iyer. In support of
her contentions she has referred to a recent decision of this Court in the case of
Mayuresh Dipak Nadkarni Vs. Union of India & Ors. (WPL-140 of 2024)
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decided on 12 January 2024, wherein this Court had considered not only the
principles of the doctrine of parens patriae, but also the imperative situation
requiring the Court to exercise jurisdiction under Article 226 of the
Constitution, in such cases. The Court observed that the relevant legislations,
which concern the welfare of persons who are incapable of taking care of
themselves, does not provide for a concrete mechanism to cater to such urgent
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situations to appoint legal guardian of persons who are medically incapacitated
to take their own decisions and manage their properties. The Court observed
that such vacuum in law however cannot adversely affect the pressing human
needs, not only to cater to the person’s medical expenses, but also to the effect
that such situation does not prejudicially affect the family members as also the
properties of the persons suffering and which needs to be prevented from being
wasted and/or not enuring to his own benefit, in such a helpless situation. The
Court also observed that, in the circumstances, as in the present case, the
Courts has consistently taken a view that the legal vacuum created by non-
availability of adequate provisions under the Mental Health Care Act, 2017 the
Hindu Minority and Guardianship Act, 1956 and under other laws should be
filled in by the Court by exercising its jurisdiction under Article 226 by
appoint a legal guardian of a person, who is suffering from serious medical
disabilities of such nature. The Court also noted the decisions of this Court and
the other High Courts in this regard, to come to a conclusion that it would be
fit and appropriate to appoint legal guardian in such cases in exercise of its
jurisdiction under Article 226 of the Constitution of India.
15. We are of the clear opinion that the principles, as discussed in the case of
Mayuresh Dipak Nadkarni (supra), are clearly applicable to the facts of the
present case. We find that the circumstances in the present case are such that
the Petitioner would be justified in espousing the cause of her husband who is
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lying in a vegetative state. There is no dispute on facts. The medical condition
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of Mr. Iyer, since 8 December 2021, (which is almost three years), hat not
changed, at all. In such circumstances, the Petitioner is required to look after
the welfare of Mr. Iyer and incur expenditure required in that regard. She also
is required to manage his properties and look after her three children and after
Mrs. Savithri Subramanian, the mother of Mr. Iyer, who is also a senior citizen
and incur expenditure on them.
16. In these circumstances, we are clearly of the opinion that the Petitioner
cannot be left helpless and it would be in the interests of justice that the
Petitioner is appointed as the legal guardian of her husband, Mr. Suresh
Subramanian Iyer. The process of law as discussed above would certainly come
to the aid of the petitioner and her family in such a situation. As observed by
the Court in the case of Mayuresh Dipak Nadkarni (supra) human suffering is
integral to one’s life, and, when it crosses human confines, the ordeals can
only be imagined. We have already noted that her children and mother in law
have no objection for the Petitioner to be appointed as legal guardian.
17. Before parting we express our gratitude to Dr. R. Balaji, Counsellor
(CA&V) Embassy of India, Abu Dhabi, and the Indian High Commissioner
UAE, for the urgent assistance in obtaining the Medical Certification of Mr.
Iyer.
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18. In the light of the above discussion, we allow this Petition in terms of
the following directions:-
a. The Petitioner, Mrs. Janaki Suresh, shall be treated and accepted as
the legal guardian of her husband, Mr. Suresh Subramanian Iyer.
b. All authorities shall accept the status of the Petitioner, Mrs. Janaki
Suresh, as legal guardian of Mr. Suresh Subramanian Iyer, and allow her
to operate his bank accounts as also manage his movable and immovable
properties, the details of which are set out in the Petition.
c. The Petition would accordingly stand allowed in the above terms.
d. Rule made absolute in the above terms. No costs.
e. All concerned parties to act on an authenticated copy of this
Judgement.
(FIRDOSH P. POONIWALLA, J.) (G. S. KULKARNI, J.)
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Ashvini Narwade
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDITION
WRIT PETITION NO.15636 OF 2023
Janaki Suresh
Age 50 years, Occupation : Housewife
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Residing at 551, H-block, 17 Street,
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16 Main Road, Anna Nagar West,
… Petitioner
District-Chennai, Tamil Nadu-600040
Versus
1. Union of India
Through the Secretary, Woman and
Child Welfar, Through office of
Law & Justice, New marine Lines
Mumbai 40020.
2. State of Maharashtra
Through the office of Govt. Pleader
3. Ministry of External Affairs, New Delhi.
Through the Secretary, Woman and
Child Welfar, Through office of
Law & Justice, New Marine Lines,
…Respondents
Mumbai 400 020.
Ms. Kenny Thakkar a/w. Mr. Mehul Rathod, Mr. Laxminarayan Shukla for
the Petitioner.
Ms. S. D. Vyas, Addl. G. P. with. P. J. Gavhane, AGP for Respondent-State.
Mr. Y. S. Bhate a/w. Vaibhav R. Gargade i/b. Rahul Tiwari for Respondent
No.1 (UOI).
_______________________
CORAM: G. S. KULKARNI &
FIRDOSH P. POONIWALLA, JJ.
th
DATED: 7 FEBRUARY, 2024
_______________________
Oral Judgement (Per G. S. Kulkarni J.):-
1. Rule. Rule made returnable forthwith. Heard finally by consent of the
parties.
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2. This Petition, under Article 226 of the Constitution of India, is filed
praying for the relief that the Petitioner-Mrs. Janaki Suresh be declared as the
legal Guardian of Mr. Suresh Subramanian Iyer (for short “Mr. Iyer”), who is in
comatose condition, and for other consequential reliefs in the nature of
direction to the Respondents as also all the concerned Banks, Depository,
Financial Institutions to allow the Petitioner to operate/ represent the affairs of
Mr. Iyer.
3. The case of the Petitioner as set out in the Petition is that the Petitioner
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got married to Mr. Iyer on 9 September 1996. It is stated that they have three
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children, namely, Osho Suresh born on 26 August 1998, Ponni Suresh born
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on 3 June, 2000 and Sachi Suresh born on 27 November 2007. The
Petitioner has stated that the mother-in-law of the Petitioner, Mrs. Savithri
Subramanian, is 78 years old and is currently residing in Thane. The Petitioner
has annexed photocopies of her Aadhar Card and also the Aadhar Card of Mr.
Iyer.
4. The Petitioner has contended that her husband, Mr. Iyer, has been
employed with Abu Dhabi National Oil Company. She states that on or about
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8 December 2021, Mr. Iyer was brought to AL Dhannah Hospital in Ruwais,
Abu Dhabi, to the emergency department, in an unconscious state. She has
described the medical condition of Mr. Iyer at the time when he was admitted
in paragraph 5 of the Petition to contend that, since the time he was brought to
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the hospital, till the date of filing of this Petition, he was in a vegetative state.
Mr. Iyer was shifted to long term acute care for supportive care, physiotherapy
and rehabilitation. The Petitioner has stated that, since the date of Mr. Iyer’s
th
hospitalization, i.e., from 8 December 2021, he has remained in a vegetative
condition and there has been very little progress in his health condition. She
has annexed to the Petition as Exhibit-C a Medical Certificate dated
02/08/2023 issued by the doctors confirming the fact that Mr. Iyer still
continues to remain in persistent vegetative state and that his is unable to speak
or sign or communicate in any manner.
5. The medical report of AL Dhannah Hospital dated 02/808/2023 needs
to be noted which reads thus:-
“AL DHANNAH HOSPITAL
TO WHOM IT MAY CONCERN
MEDICAL REPORT
Date:02-08-2023
Name : Mr. SURESH SUBRAMANIAN
IYER
Medical Record Number : MA2200000042612
Nationality : Indian
Gender : Male
DOB : 31-05-1966
Registered Contact Number : 0504925169
Doctor Name : Dr. RaSha Sadek
Mohamed Shehata
56-year-old male patient admitted on long term care as hypoglycemic
encephalopathy, this patent arrested at home by hopoglycemia CPR
done return pulse but kept in vegetative state.
Patient on PEG tube and Tracheostomy.
Generalized muscle wasting no movement only spontaneous eye
opening.
Hemodynamically stable on room air.
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For multidisciplinary Care nursing, physiotherapy, and occupational
care.
Dr. Osman Mohammed Rafi Uz Zaman
Hospital Administrator”
6. She stated that, due to his health condition, it is not possible for Mr. Iyer
to manage his assets, including Bank Accounts. The Petitioner has set out at
Exhibit-D the details of two Bank Accounts and a Demat Account of Mr. Iyer.
She has further stated in the Petition that Mr. Iyer was the sole earning member
of the family and, in the absence of any income support from Mr. Iyer, the
Petitioner has to take care of herself and her three children and run the
household on her own. She had approached the Banks and also Depository
with a request to allow her to sign and comply necessary formalities in place of
Mr. Iyer. However, her request has been declined by the Banks and the
Depository with a request to get herself appointed as the guardian or get an
appropriate order from a competent Court of law, so as to enable her to manage
the Bank Account and Demat Account of Mr. Iyer.
7. She has stated that due to sudden ill health and comatose condition of
her husband she has to take care of his affairs and their children. She has stated
that her husband needs to be given constant medical care under trained
paramedics to keep him in a good and dignified condition and to sustain his
life. She also stated that she has been incurring huge financial expenses and Mr.
Iyer had made some emergency reserves but the same are now almost
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exhausted as the same were not with a plan that he will be in a vegetative state,
wherein his routine work life would come to a standstill. It is therefore her
contention that, due to comatose condition of her husband, she is facing
financial constraints for maintenance of herself as also Mr.Iyer and their family,
which includes his mother and three children. She also stated that she would be
required to spend on the studies of her two children, who intend to pursue
higher education, and a minor daughter, but there are constraints due to such
limited financial resources. The Petitioner has also contended that the mother
of Mr. Iyer is 78 years of age and she has consented to the Petitioner being
appointed as the legal guardian of Mr. Iyer. She has annexed the consent
affidavits of her three children and also the mother of Mr. Iyer at Exhibit-E to
Exhibit-H.
8. It is in these circumstances, the Petitioner is before the Court praying for
the following substantive prayers:-
“b. That, this Hon’ble Court be pleased to issue a Writ of Mandamus or
any other appropriate writ, order or direction in the nature of
Mandamus declaration that the Petitioner Mrs. Janaki Suresh as the
guardian of Mr. Suresh Slubramanian Iyer who is in comatose
condition;
c. That, the Hon’ble Court be pleased to issue a Writ of Mandamus or
any other appropriate writ, order or direction in the nature of
mandamus directing the Respondents, as well as all the concerned
banks, depository, finance institutes, etc. to allow the Petitioner to
operate/represent with the affairs of Mr. Suresh Subramanian Iyer in
terms of finance, on such terms and condition as deem fit to this
Hon’ble Court.”
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9. A co-ordinate bench of this Court, of which one of us (Justice Firdosh P.
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Pooniwalla) was a member, by an Order dated 21 December 2023, had
directed the Dean of All India Institute of Medical Sciences, New Delhi (for
short “AIIMS”) to constitute a Medical Board to acertain the medical condition
of Mr. Iyer. The relevant paragraph of the said Order can be noted here, which
reads thus.
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On 15 December 2023, the learned Counsel for the Petitioner was
directed to give notice to the Standing Counsel for the Respondent
no.1. Accordingly, Mr.Rahul Tiwari, learned counsel has entered his
appearance for Respondent no.1. On instructions, he submits that the
Medical Board of Doctors from All India Institute of Medical Sciences,
New Delhi can undertake steps to assess the medical condition of the
patient through Video Conferencing. To enable this to be done, the
Dean, All India Institute of Medical Sciences, New Delhi is requested
to constitute a team of Doctors who can take necessary steps to consider
the medical state of Mr.Suresh Subramaniam Iyer who is presently
taking treatment at Abu Dhabi. Such steps be taken within a period of
two weeks from today. This exercise can be undertaken through Video
Conferencing and in consultation with local Government Doctors who
are treating the said patient. The report indicating the state of health of
the said patient be placed on record by the returnable date.
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10. Thereafter, the proceedings were listed before us on 22 January 2024.
Considering the report of the AIIMS that it was not possible for the Medical
Board constituted by the AIIMS to verify the medical condition of Mr. Iyer by
Video Conferencing, this Court was of the opinion that it would be appropriate
that the Indian High Commissioner for UAE be directed to ascertain the
medical condition of Mr. Iyer by obtaining an appropriate certificate. We note
the said Order which reads thus:-
“1. In pursuance of the order dated 21 December, 2023 passed by a co-
ordinate Bench of this Court whereby the Dean of All India Institute of
Medical Sciences (AIIMS), New Delhi was requested to constitute a
team of Doctors to take necessary steps to consider the medical state of
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the petitioner’s husband Mr. Suresh Subramaniam Iyer, who was being
treated at Abu Dhabi and was stated to be in a vegetative state as per
the medical report of the AL Dahannah Hospital (Exhibit ‘C’). In
pursuance thereto, a Medical Board was immediately constituted by
AIIMS on 21 December, 2023. A report dated 26 December, 2023 of
the AIIMS is placed on record which states that the Medical Board was
constituted at AIIMS, New Delhi under the Chairmanship of Dr.
Nikhil Tandon, Professor and Head, Department of Endocrinology. It
is recorded that as per the preliminary mail received by the Medical
Board, it was observed that the patient Mr. Suresh Subramaniam Iyer
was diagnosed as “Hypoglycemic Encephalopathy” at AL Dahannah
Hospital, AI Dhafra, Abu Dhabi, U.A.E. It is stated that other than
the diagnosis, no medical reports nor the contact number of the patient
attendants details were shared with the Medical Board members. It is
further recorded that the Member Secretary of the Medical Board tried
calling Advocate Rahul Tiwari on the numbers as stated to get more
details of the patient but all efforts went in vain, as he himself did not
have any contact details of the patient’s attendant. The report finally
records that all the members of the Medical Board opine that it was not
possible for them to examine the patient, who is unconscious and in
vegetative state, through video call. Hence, the current health
condition of Mr. Suresh Subramanian Iyer cannot be updated as
requested.
2. Such report as made by the Medical Board constituting of six
doctors was addressed to the Medical Superintendent, New Delhi, who
forwarded the report, to be placed on record of this Court vide letter
dated 26 December, 2023.
3. In view of the aforesaid report as forwarded by the AIIMS, New
Delhi, it appears that although a medical report of the AL Dahannah
Hospital is on record to state that Mr. Suresh Subramanian Iyer is in a
vegetative state, his medical could not be appropriately verified by the
Medical Board constituted by AIIMS of six doctors.
4. Learned counsel for the petitioner has submitted that the legal
representative of Mr. Suresh Subramaniam Iyer, namely, the petitioner,
three children as also the mother are all in India. As such, no relative in
the family is available with the petitioner. It is stated that the foreign
employer is also taking care of the patient.
5. In this view of the matter, in our opinion as now the Ministry of
External Affairs is also impleaded as party-respondent, we would have
no alternative but to request the Indian High Commissioner for U.A.E.
to get certified and affirm the health condition of Mr. Suresh
Subramaniam Iyer as recorded in the report of AL Dahannah Hospital,
Abu Dabi, U.A.E (Exhibit-C). Learned counsel for the respondent
shall immediately forward a copy of the said medical report of the AL
Dahannah Hospital, Abu Dabi, UAE, through the Ministry of External
Affairs to the Indian High Commissioner, who shall take appropriate
steps so that on the adjourned date of hearing on the report of the
Indian High Commissioner the medical condition of Mr. Suresh
Subramaniam Iyer is placed on record of this Court.
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6. We accordingly adjourned the proceedings to 30 January, 2024
(H.O.B.).
7. Parties to act on the authenticated copy of this order.”
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11. Thereafter the proceedings were listed before us on 5 February 2024,
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when on behalf of the Respondents, a Report dated 11 January 2024, was
placed before us as forwarded by Dr. R. Balaji, Counsellor (CA&V) Embassy of
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India, Abu Dhabi, which was a report prior to our Order dated 22 January
2024. So as to have the latest report, while adjourning the proceedings, we
passed the following order:-
“1. Mr. Bhate, along with Mr. Vaibhav Gargade, have today placed on
record an e-mail addressed by Dr. R. Balaji, Counsellor (CA&V),
Embassy of India, Abu Dhabi and also a trailing mail. The said e-mail
is to the following effect:-
Subject: Re !!!URGENT-WP/15636/2023(Civil)
Dear Sir/Madam,
Reference trailing email in respect of order of Hon’ble
Bombay High Court WP./15636/2023 (civil) regarding
certified medical report of Mr. Suresh Subramanian Iyer
(patient MR Number : MA2200000042612),
2. In this regard, please find attached medical report-
LTC ward deated 11.01.2024 of Mr. Suresh Subramanian
Iyer (patient MR Number : MA2200000042612) who is
currently admitted in AL Dhannah Hospital, Al Dhannah
City, Abu Dhabi Emirate.
3. This is for your kind information please
Thanks and Regards,
Dr. R. Balaji
Counsellor (CA&V)
Embassy of India, Abu Dhabi”
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2. There is a Medical Report dated 11 January 2024, titled as
“Medical Report – LTC Ward” which, inter alia, describes the physical
condition of Mr. Suresh Iyer, the Petitioner’s husband, as being in a
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vegetative state with spontaneous eye opening and not communicating.
A photocopy of the said Medical Report is placed on record.
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3. However, the Report is dated 11 January 2024, that is prior to our
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Order dated 22 January 2024. Since this Report is prior to our Order,
it would be appropriate that Dr. R. Balaji, Counsellor (CA&V),
Embassy of India, Abu Dhabi forwards the latest report or a
confirmation that the medical condition of Mr.Suresh Iyer, as reflected
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in the Report dated 11 January 2024, is his condition as on date.
4. Let such report be forwarded immediately by e-mail on or before the
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adjourned date of hearing. Place the matter on 7 February 2024, on
the Supplementary Board.
5. We have taken on record a copy of the letter of Dr. R. Balaji,
Counsellor (CA&V), Embassy of India, Abu Dhabi along with the
Trailing Mail and the Report, which are marked “X-1”, “X-2” and “X-3”
for identification.”
12. Today, Mr. Bhate as also Mr. Tiwari have appeared before the Court to
place on record an e-mail received from Dr. R. Balaji, Counsellor (CA&V)
Embassy of India, Abu Dhabi, addressed to the Counsel for the Respondents,
enclosing the latest Medical Report of Mr. Iyer who is currently admitted at the
AL Dhannah Hospital, AL Dhannah City, Abu Dhabi, Emirates. The report as
submitted is a Medical Report titled as “Medical Report -LTC Ward” issued by
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the AL Dhannah Hospital dated 6 February 2024, describing Mr. Suresh
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Subramanian Iyer, Patient MR No. MA2200000042612 admitted on 8
December 2021, in a vegetative state. The relevant findings as stated in the
Medical Report are required to be noted, which reads thus:-
Primary diagnosis:
Diabetic hypoglycemic comatose
Secondary diagnosis:
DM type 2, IHD, Hypertention, Localization-related (focal) (partial)
symptomatic epilepsy and epileptic syndromes with simple partial
seizures, not intractable, without status epilepticus.
History of Present Illness:
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Patient in vegetative state after ost arrest on tracheostomy and PG
tube for long term care.
Physical Examination:
Patient on vegetative stat spontaneous eye opening not
communicate.
Hemodynamically stable
Chest clear quail air entry
abdomen lax
There is contracture in both upper and lower limbs and sever muscle
wasting, no bed sore”
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13. It is thus clear that not only the latest Report dated 6 February 2024
i.e., a day before we are passing this Order, but also the earlier reports as
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annexed to the Petition by the Petitioner as also the Report dated 11 January
2024 are all consistent to state that Mr. Iyer is in a Comatose state.
14. Considering such condition of the Mr. Iyer, learned Counsel for the
Petitioner submitted that this is a fit case where this Court needs to exercise its
jurisdiction, and by applying the principles of the doctrine of parens patriae,
appoint the Petitioner as a legal guardian of her husband Mr. Iyer. In support of
her contentions she has referred to a recent decision of this Court in the case of
Mayuresh Dipak Nadkarni Vs. Union of India & Ors. (WPL-140 of 2024)
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decided on 12 January 2024, wherein this Court had considered not only the
principles of the doctrine of parens patriae, but also the imperative situation
requiring the Court to exercise jurisdiction under Article 226 of the
Constitution, in such cases. The Court observed that the relevant legislations,
which concern the welfare of persons who are incapable of taking care of
themselves, does not provide for a concrete mechanism to cater to such urgent
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situations to appoint legal guardian of persons who are medically incapacitated
to take their own decisions and manage their properties. The Court observed
that such vacuum in law however cannot adversely affect the pressing human
needs, not only to cater to the person’s medical expenses, but also to the effect
that such situation does not prejudicially affect the family members as also the
properties of the persons suffering and which needs to be prevented from being
wasted and/or not enuring to his own benefit, in such a helpless situation. The
Court also observed that, in the circumstances, as in the present case, the
Courts has consistently taken a view that the legal vacuum created by non-
availability of adequate provisions under the Mental Health Care Act, 2017 the
Hindu Minority and Guardianship Act, 1956 and under other laws should be
filled in by the Court by exercising its jurisdiction under Article 226 by
appoint a legal guardian of a person, who is suffering from serious medical
disabilities of such nature. The Court also noted the decisions of this Court and
the other High Courts in this regard, to come to a conclusion that it would be
fit and appropriate to appoint legal guardian in such cases in exercise of its
jurisdiction under Article 226 of the Constitution of India.
15. We are of the clear opinion that the principles, as discussed in the case of
Mayuresh Dipak Nadkarni (supra), are clearly applicable to the facts of the
present case. We find that the circumstances in the present case are such that
the Petitioner would be justified in espousing the cause of her husband who is
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lying in a vegetative state. There is no dispute on facts. The medical condition
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of Mr. Iyer, since 8 December 2021, (which is almost three years), hat not
changed, at all. In such circumstances, the Petitioner is required to look after
the welfare of Mr. Iyer and incur expenditure required in that regard. She also
is required to manage his properties and look after her three children and after
Mrs. Savithri Subramanian, the mother of Mr. Iyer, who is also a senior citizen
and incur expenditure on them.
16. In these circumstances, we are clearly of the opinion that the Petitioner
cannot be left helpless and it would be in the interests of justice that the
Petitioner is appointed as the legal guardian of her husband, Mr. Suresh
Subramanian Iyer. The process of law as discussed above would certainly come
to the aid of the petitioner and her family in such a situation. As observed by
the Court in the case of Mayuresh Dipak Nadkarni (supra) human suffering is
integral to one’s life, and, when it crosses human confines, the ordeals can
only be imagined. We have already noted that her children and mother in law
have no objection for the Petitioner to be appointed as legal guardian.
17. Before parting we express our gratitude to Dr. R. Balaji, Counsellor
(CA&V) Embassy of India, Abu Dhabi, and the Indian High Commissioner
UAE, for the urgent assistance in obtaining the Medical Certification of Mr.
Iyer.
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18. In the light of the above discussion, we allow this Petition in terms of
the following directions:-
a. The Petitioner, Mrs. Janaki Suresh, shall be treated and accepted as
the legal guardian of her husband, Mr. Suresh Subramanian Iyer.
b. All authorities shall accept the status of the Petitioner, Mrs. Janaki
Suresh, as legal guardian of Mr. Suresh Subramanian Iyer, and allow her
to operate his bank accounts as also manage his movable and immovable
properties, the details of which are set out in the Petition.
c. The Petition would accordingly stand allowed in the above terms.
d. Rule made absolute in the above terms. No costs.
e. All concerned parties to act on an authenticated copy of this
Judgement.
(FIRDOSH P. POONIWALLA, J.) (G. S. KULKARNI, J.)
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