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Bombay High Court
Paritosh S/O Manmohan Khanvilkar And … vs Union Of India Thr The Sec, Ministry Of … on 15 April, 2025
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
Digitally signed
by PRAJAKTA
PRAJAKTA SAGAR
VARTAK
SAGAR
2025:BHC-AS:17539-DB
VARTAK
Date:
2025.04.18
19:52:25
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+0530
Prajakta Vartak
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3186 OF 2025
Paritosh s/o. Manmohan Khanvilkar & Ors. ...Petitioners
Versus
Union of India & Ors. ...Respondents
__________
Ms. Ayodhya Patki i/b. Mr. Ashish Sonawane for the Petitioners.
Ms. Savita Prabhune, AGP for State.
__________
CORAM : G. S. KULKARNI &
ADVAIT M. SETHNA, JJ.
DATE : 15 APRIL 2025
Oral Judgment (Per. G. S. Kulkarni, J.):-
1. This petition under Article 226 of the Constitution of India is filed
invoking the doctrine of parens patriae whereby petitioner no.1 and
petitioner no.2, who are the son and daughter of "Smt. Madhura
Manmohan Khanvilkar" age 78 years, are before the Court praying that
petitioner no.2 Rajlaxmi, daughter of Smt. Madhura be appointed as a
guardian of her mother who is stated to be suffering from dementia and
severe degree of cognitive impairment.
2. Considering such plea as urged on behalf of the petitioners, by an
order dated 19 March 2025 passed on the present proceedings, this Court
requested the Dean of Byramjee Jeejeebhoy (B.J.) Medical College and
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Sassoon General Hospital, Pune to appoint a Medical Board consisting of
experts who would visit the residence of petitioner no.2 where Smt.
Madhura Khanvilkar resides so as to examine her and make a report of her
medical condition to the Court, to be forwarded to the learned Assistant
Government Pleader. Accordingly, a Medical Board was constituted by the
Dean of B.J. Medical College. A report of the Medical Board was
forwarded by the Dean along with his covering letter dated 05 April 2025
which was placed on record of this Court. Summary and impressions of
'Department of Clinical Psychology' read thus:-
"SUMMARY
MMSE findings indicative of Severe degree of cognitive
impairment.
MOCA findings indicative of Severe degree of cognitive
impairment.
PGIMS findings indicative of Severe degree of cognitive
impairment.
IMPRESSIONS
The index patient seems to be suffering from severe cognitive
impairment in domains of Memory (Remote & Recent),
Attention/Concentration, Recall (Delayed & Immediate),
Language, Orientation, Abstraction and Visuospatial/ Executive
functioning."
3. The report of the Medical Board as constituted by the Dean of
Sassoon General Hospital, Pune dated 05 April 2025 records the following
observations on the medical condition of "Smt. Madhura Manmohan
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Khanvilkar":-
"O. No. SGH/SUPDT/658/2025 Date: 05/04/2015
Subject: Assessment report of Mrs. Madhura Manmohan Khanwilkar
Reference: 1) Your letter no. SGH/MS/618/2025 Dated 27/03/2025
2) Psychological assessment report by Assistant professor.
Department of Clinical psychology, Maharashtra Institute
of Mental Health, Pune with outward no. 257 Date 02/04/2025
As per order of Bombay High Court a committee was
constituted via reference letter no. I to assess the medical condition of
Mrs. Madhura Manmohan Khanwilkar. The committee is herewith
submitting the report.
Name: Mrs. Madhura Manmohan Khanwilkar Age: 78 years
MRD No: 0/15/25158
Informant: Daughter (Ms. Rajlaxmi), Son (Parotish) and Caretaker (Ms.
Akshada)
Medical history: Mrs. Madhura Manmohan Khanwilkar has history of
forgetfulness, unable to perform day to day activities. As per available
medical records she is having Type II Diabetes Mellitus. Hypertension
and Dementia. She is currently under the treatment of Dr. Vedavati
Purandare of Chellaram Hospital. She had history of recurrent urinary
tract infections for which she has undergone cystodialatation. She had
history of recurrent wheeze for which she was under treatment of Dr.
Swapnil Kulkarni with possible diagnosis of late onset asthma or
microaspiration or tracheomalacia. As per medical document form Dr.
Shripad Pujari. Neurologist of Deenanath Mangeshkar hospital dated
27/06/2023. she had past history of multiple sclerosis more than 10
years. However currently she is not on any treatment for multiple
sclerosis. The various past medical records were reviewed.
Mrs. Madhura Manmohan Khanwilkar was examined at her home on
27/03/2025. She was assessed in Sassoon hospital on 28/03/2025.
Additional information was obtained from her son Mr. Paritosh on
01/04/2025 as patient was staying with him at the time of onset of
dementia.
Clinical examination at home: Mrs. Madhura Manmohan Khanwilkar
was conscious, cooperative, and communicative Her pulse rate was
88/minute and her blood pressure was 136 84 mm of Hg. She had mild
pallor. Her respiratory, cardiovascular, per abdomen examination was
within normal limits. On central nervous system examination, she was
conscious. She was able to walk with support.
Mental status examination at Sassoon hospital: Mrs. Madhura
Manmohan Khanwilkar was conscious, minimally cooperative, and
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communicative. She was muttering to self and had frequent anger
outbursts. Her attention was aroused but not sustained, eye to eye
contact was initiated but not maintained. She could comprehend simple
instructions. The patient was irritable throughout assessment and
required multiple efforts by examiner. However she attempted answering
questions after understanding them correctly. She was oriented to person
but her orientation to time and place was impaired. Her recent and
remote memory was impaired. Her insight was impaired.
Psychological assessment:: Mrs. Madhura Manmohan Khanwilkar was
referred for psychological testing and assessment to Department of
clinical psychology. Maharashtra Institute of Mental Health, Pune. The
report is attached as reference no. 2. Mini-Mental Status Examination.
Montreal Cognitive Assessment and PGI- Memory scale were applied by
Clinical Psychologist. Her psychological testing was indicative of Severe
degree of cognitive impairment.
Conclusion: As per history, past medical records, clinical examination
and psychological assessment. Mrs. Madhura Manmohan Khanwilkar
was found to have suffering from Dementia."
4. The Courts have exercised jurisdiction under Article 226
of the Constitution by appointing a legal guardian in respect of
diabled persons applying the doctrine of parens patriae. The
principle that the interest of the person with a disability being required
to be addressed is duly recognized in the legal jurisprudence. The
principles invoking such doctrine fell for consideration of this Court in
Mayuresh Dipak Nadkarni vs. Union of India & Ors. (Writ Petition No.
140 of 2024) to which one of us (G. S. Kulkarni, J.) was a member,
wherein in similar circumstances and considering the provisions of the
Mental Healthcare Act 2017 as also the Rights of Persons with Disabilities
Act 2016 and the National Trust for Welfare of Persons and Autism,
Cerebral Palsy, Mental Retardation and Multiple Disability Act, 1999
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as also the principles of the doctrine of parens patriae and the
principles in that regard considered by the Supreme Court in Charan Lal
Sahu vs. Union of India1 and Shafin Jahan vs. Asokan K. M. & Ors. 2 as also
considering the decisions as rendered by this Court, this Court had
appointed the petitioner therein as the legal guardian of his father. The
relevant observations as contained in the said judgment are required to be
noted which read thus:-
"10. It is thus quite clear that in the circumstances as in the
present case, the Courts have consistently taken a view of the legal
vacuum created by non-availability of adequate provisions under
the Mental Health Care Act, 2017 as also under the Hindu
Minority and Guardianship Act, 1956 and the other laws as
discussed hereinabove. The High Courts in such cases have
exercised jurisdiction under Article 226 to appoint legal guardian
of a person who is suffering with serious medical disabilities also in
the interest of the very survival of such person who is completely
dependent on others.
11. In exercising such jurisdiction, the High Courts have
invoked the doctrine of parens patriae. The doctrine of parens
patriae has been described in the Black's Law Dictionary as under:
"parens patriae (par-enz pay-tree-ee or pa-tree-i). [Latin
"parent of his or her country"]). 1. The State regarded as a
sovereign; the state in its capacity as provider of protection to
those unable to care for themselves <the attorney general
acted as parens patriae in the administrative hearing>; in
Roam Law, the emperor. [Cases: States <=1. C.J.S. States; 2,
16.] 2. A doctrine by which a government has standing to
prosecute a lawsuit on behalf of a citizen, especially on behalf
of someone who is under a legal disability to prosecute the
suit. < parens partiae allowed the state to institute
proceedings> The State ordinarily has no standing to sue on
behalf of its citizens, unless a separate, sovereign interest will
be served by the suit. - Also termed doctrine of parens
patriae. []cASES: Infants <= 2; States <= 190. c.j.s. Infants ;
1 (1990) 1 SCC 613
2 (2018) 16 SCC 368
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12, 108, 198; States ; 297, 314.]"
12. The Supreme Court in Charan Lal Sahu vs. Union of
India2 has explained the doctrine of parens patriae as a right and
duty of the sovereign in public interest to protect the interest of the
persons with disabilities and has recognised such doctrine being
applied under the Indian legal jurisprudence. In paragraph 35 of
the decision, the Supreme Court observed thus:
"35. There is the concept known both in this country
and abroad, called parens patriae. Dr B.K Mukherjea in his
"Hindu Law of Religious and Charitable Trust", Tagore Law
Lectures, Fifth Edition, at page 404, referring to the concept
of parens patriae, has noted that in English law, the Crown as
parens patriae is the constitutional protector of all property
subject to charitable trusts, such trusts being essentially
matters of public concern. Thus the position is that according
to Indian concept parens patriae doctrine recognized King as
the protector of all citizens and as parent. In Budhkaran
Chaukhani v. Thakur Prosad Shah AIR 1942 Cal 331 the
position was explained by the Calcutta High Court at page
318 of the report. The same position was reiterated by the said
High Court in Banku Behary Mondal v. Banku Behary Hazra
AIR 1943 Cal 203 at page 205 of the report. The position
was further elaborated and explained by the Madras High
Court in Medai Dalavoi T. Kumaraswami Mudaliar v. Medai
Dalavoi Rajammal AIR 1957 Mad 563 at page 567 of the
report. This Court also recognized the concept of parens
patriae relying on the observations of Dr Mukherjea aforesaid
in Ram Saroop v. S.P Sahi 1959 Supp 2 SCR 583 at pages
598 and 599. In the "Words and Phrases" Permanent Edition,
Vol. 33 at page 99, it is stated that parens patriae is the
inherent power and authority of a legislature to provide
protection to the person and property of persons non sui juris,
such as minor, insane, and incompetent persons, but the
words parens patriae meaning thereby 'the father of the
country', were applied originally to the King and are used to
designate the State referring to its sovereign power of
guardianship over persons under disability. (emphasis
supplied) Parens patriae jurisdiction, it has been explained, is
the right of the sovereign and imposes a duty on sovereign, in
public interest, to protect persons under disability who have
no rightful protector. The connotation of the term parens
patriae differs from country to country, for instance, in
England it is the King, in America it is the people, etc. The
Government is within its duty to protect and to control
persons under disability. Conceptually, the parens patriae
theory is the obligation of the State to protect and takes into
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custody the rights and the privileges of its citizens for
discharging its obligations. Our Constitution makes it
imperative for the State to secure to all its citizens the rights
guaranteed by the Constitution and where the citizens are not
in a position to assert and secure their rights, the State must
come into picture and protect and fight for the rights of the
citizens. The Preamble to the Constitution, read with the
Directive principles, articles 38, 39 and 39-a enjoin the State
to take up these responsibilities. It is the protective measure to
which the social welfare state is committed. It is necessary for
the State to ensure the fundamental rights in conjunction
with the Directive Principles of State Policy to effectively
discharge its obligation and for this purpose, if necessary, to
deprive some rights and privileges of the individual victims or
their heirs to protect their rights better and secure these
further. Reference may be made to Alfred L. Snapp & Son,
Inc. v. Puerto Rico 73 L Ed 2d 995 in this connection. There
it was held by the Supreme Court of the United States of
America that Commonwealth of Puerto Rico have standing to
sue as parens patriae to enjoin apple growers' discrimination
against Puerto Rico migrant farm workers. This case
illustrates in some aspect the scope of parens patriae. The
Commonwealth of Puerto Rico sued in the United States
District Court for the Western District of Virginia, as parens
patriae for Puerto Rican migrant farmworkers, and against
Virginia apple growers, to enjoin discrimination against
Puerto Ricans in favour of Jamaican workers in violation of
the Wagner-Peyser Act, and the Immigration and Nationality
Act. The District Court dismissed the action on the ground
that the Commonwealth lacked standing to sue, but the Court
of Appeal for the Fourth Circuit reversed it. On certiorari, the
United States Supreme Court affirmed. In the opinion by
White, J., joined by Burger, C.J and Brennan, Marshall,
Blackmun, Rehnquist, Stevens, and O'Connor, JJ., it was held
that Puerto Rico had a claim to represent its quasi-sovereign
interests in federal court at least which was as strong as that of
any State, and that it had parens patriae standing to sue to
secure its residents from the harmful effects of discrimination
and to obtain full and equal participation in the federal
employment service scheme established pursuant to the
Wagner-Peyser act and the immigration and nationality act of
1952. Justice White referred to the meaning of the expression
parens patriae. According to Black's Law Dictionary, 5th edn.
1979, page 10003, it means literally 'parent of the country'
and refers traditionally to the role of the State as a sovereign
and guardian of persons under legal disability. Justice White
at page 1003 of the report emphasised that the parens patriae
action had its roots in the common law concept of the "royal
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prerogative". The royal prerogative included the right or
responsibility to take care of persons who were legally unable,
on account of mental incapacity, whether it proceeds from
nonage, idiocy or lunacy to take proper care of themselves
and their property. This prerogative of parens patriae is
inherent in the supreme power of every state, whether that
power is lodged in a royal person or in the legislature and is a
most beneficent function. After discussing several cases
Justice White observed at page 1007 of the report that in
order to maintain an action, in parens patriae, the State must
articulate an interest apart from the interests of particular
parties, i.e the State must be more than a nominal party. The
State must express a quasi-sovereign interest. Again an
instructive insight can be obtained from the observations of
Justice Holmes of the American Supreme Court in the case of
State of Georgia v. Tennessee Copper Co. 51 L Ed 1038,
which was a case involving air pollution in Georgia caused by
the discharge of noxious gases from the defendant's plant in
Tennesee. Justice Holmes at page 1044 of the report
described the State's interest as follows:
"This is a suit by a State for an injury to it in its
capacity of quasi-sovereign. In that capacity the State has an
interest independent of and behind the titles of its citizens,
in all the earth and air within its domain. It has the last
word as to whether its mountains shall be stripped of their
forests and its inhabitants shall breathe pure air. It might
have to pay individuals before it could utter that word, but
with it remains the final power....
... When the States by their union made the forcible
abatement of outside nuisances impossible to each, they did
not thereby agree to submit to whatever might be done.
They did not renounce the possibility of making reasonable
demands on the ground of their still remaining quasi-
sovereign interests..."
13. In Aruna Ramachandra Shanbaug v. Union of India which
was a case of a comatose lady, the Supreme Court invoking the
doctrine of ex debito justitiae and the parens patriae doctrine
observed thus:-
"38. From the above, it is clearly deducible that when
the High Court exercises jurisdiction under Article 226 of the
Constitution of India, it does so to further the cause of justice.
To provide justice or discharge ex debito justiciae is the raison
d' etre of the courts. The Latin expression ex debito justitiae
literallyh means a debt of justice; on account of justice; a
claim, the refusal of which would involve an injustice, and
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therefore, one which justice owes it to the claimant to
recognize and allow. The doctrine of ex debito justiciae is well
established and requires no further elaboration. In addition to
Article 226 of the Constitution, such power of the High
Court is traceable to section 151 of the Civil Procedure Code,
1908 and section 482 of the Code of Criminal Procedure,
1973."
130. In our opinion, in the case of an incompetent
person who is unable to take a decision whether to withdraw
life support or not, it is the Court alone, as parens patriae,
which ultimately must take this decision, though, no doubt,
the views of the near relatives, next friend and doctors must
be given due weight."
14. We may also refer to another decision of a recent origin in
Shafin Jahan vs. Asokan K.M. & Ors.4 in which the Supreme
Court elaborately discussed the principles of parens patriae. The
Supreme Court referring to the decisions of Charan Lal Sahu
(supra), Anuj Garg vs. Hotel Association of India5, Aruna
Ramachandra Shanbaug (supra) and State of Kerala vs. N.M.
Thomas6, observed that Constitutional Courts in this country
would exercise parens patriae jurisdiction inter alia in matters of
child custody and in exceptional situation by setting out
illustrations, in case of persons who are mentally ill. The relevant
observations of the Supreme Court in this context are required to
be noted, which reads thus:
"38. In Aruna Ramachandra Shanbaug v. Union of India
(2011) 4 SCC 454, the Court, after dealing with the decision
in State of Kerala v. N.M. Thomas (1976) 2 SCC 310 wherein
it has been stated by Mathew, J. that "the Court also is 'State'
within the meaning of Article 12 (of the Constitution) ...",
opined: (Aruna Shanbaug case, SCC p. 521, para 130)
"130. In our opinion, in the case of an incompetent person
who is unable to take a decision whether to withdraw life
support or not, it is the Court alone, as parens patriae,
which ultimately must take this decision, though, no
doubt, the views of the near relatives, next friend and
doctors must be given due weight."
39. Constitutional Courts in this country exercise
parens patriae jurisdiction in matters of child custody treating
the welfare of the child as the paramount concern. There are
situations when the Court can invoke the parens patriae
principle and the same is required to be invoked only in
exceptional situations. We may like to give some examples.
For example, where a person is mentally ill and is produced
before the court in a writ of habeas corpus, the court may
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invoke the aforesaid doctrine. On certain other occasions,
when a girl who is not a major has eloped with a person and
she is produced at the behest of habeas corpus filed by her
parents and she expresses fear of life in the custody of her
parents, the court may exercise the jurisdiction to send her to
an appropriate home meant to give shelter to women where
her interest can be best taken care of till she becomes a major.
40. In Heller v. Doe 509 US 312 (1993), Justice
Kennedy, speaking for the U.S. Supreme Court, observed:
"... the State has a legitimate interest under its Parens Patriae
powers in providing care to its citizens who are unable ..... to
care for themselves."
41. The Supreme Court of Canada in E. v. Eve [1986] 2
SCR 3888 observed thus with regard to the doctrine of Parens
Patriae: (SCC OnLine Can SC paras 75-77)
The Parens Patriae jurisdiction for the care of the mentally
incompetent is vested in the provincial superior courts. Its
exercise is founded on necessity. The need to act for the
protection of those who cannot care for themselves. The
jurisdiction is broad. Its scope cannot be defined. It applies to
many and varied situations, and a court can act not only if
injury has occurred but also if it is apprehended. The
jurisdiction is carefully guarded and the courts will not assume
that it has been removed by legislation.
While the scope of the parens partiae jurisdiction is
unlimited, the jurisdiction must nonetheless be exercised in
accordance with its underlying principle. The discretion given
under this jurisdiction is to be exercised for the benefit of the
person is need of protection and not for the benefit of others.
It must at all times be exercised with great caution, a caution
that must increase with the seriousness of the matter. This is
particularly so in cases where a court might be tempted to act
because failure to act would risk imposing an obviously heavy
burden on another person.
......
45. Thus, the Constitutional Courts may also act as
Parens Patriae so as to meet the ends of justice. But the said
exercise of power is not without limitation. The courts cannot
in every and any case invoke the Parens Patriae doctrine. The
said doctrine has to be invoked only in exceptional cases
where the parties before it are either mentally incompetent or
have not come of age and it is proved to the satisfaction of the
court that the said parties have either no parent/legal guardian
or have an abusive or negligent parent/legal guardian."
(emphasis supplied)
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15. We may now refer to the decisions as rendered by the
different High Courts exercising jurisdiction under Article 226 of
the Constitution of India considering the doctrine of parens patriae
by entertaining writ petitions in the appointment of legal guardians
of persons who were suffering from major cognitive disorders.
16. In Sairabanu Mohammed Rafi Vs. State of Tamil Nadu7,
the petitioner in regard to her husband one Mohammed Rafi
approached the Madras High Court by a writ petition under Article
226 of the Constitution of India seeking a direction to appoint her
as a guardian of her husband and as the Manager for the purpose of
managing and selling the immovable properties. In such case, her
husband was stated to be in a condition of coma. As there was no
dispute on the medical condition of the petitioner's husband, the
Court observing that neither under the Mental Health Act nor
under the Guardian and Wards Act, 1890, there was any provision
for appointment of a guardian in such a situation. It was observed
that although the petitioner could have approached the
jurisdictional Civil Court by way of common law remedy, in view
of the urgency expressed, coupled with the fact that there was no
dispute on facts, the Court appointed the petitioner as guardian of
her husband, so as to enable her to deal with his immovable
properties and also for the purpose of operating his bank accounts.
17. The Delhi High Court in Pratibha Pande and Anr. Vs.
Union of India and Ors.8 was considering the petitioner's prayer of
appointing her as a guardian of her mother, who was suffering from
multiple disabilities and who was lying in a comatose position. In
the said case, the petitioner had earlier approached the Local Level
Committee (LLC) constituted under Section 13 of the National
Trust Act, which had rejected the daughter's (petitioner no.2's)
application. Considering the prayers as made in the writ petition,
the Court recorded that it was not in dispute that de hors the
provisions of the National Trust Act and Disabilities Act, the Court
in exercise of powers under Article 226 of the Constitution was
required to appoint the daughter (petitioner no.1) as the guardian
of her mother and accordingly appointed her as the guardian, of
the person and property movable and immovable of the ailing
mother.
18. A Division Bench of this Court in Vijay Ramachandra
Salgaonkar Vs. State9 was concerned with a similar prayer made in
the proceedings filed under Article 226 of the Constitution of
India, wherein the petitioner had prayed for a direction to declare
him as the guardian of his wife Mrs. Veena Salgonkar in respect of
her properties. The petitioner's wife was described to be "living
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dead". She was suffering from vascular dementia with diabetes
mellitus and hypertension. Because of her debilitating health
condition, she was unable to take care of herself much less of her
property. In these circumstances, the Court referring to the decision
of the Madras High Court in Sairabanu Mohammed Rafi (supra) as
also the orders of the Division Bench passed in Philomena Leo
Lobo Vs. Union of India, Sikha Arijit Bhattacharya vs. Union of
India, Smt. Reshma Salam Kondkari Vs. Union of India and Rajni
Hariom Sharma Vs. Union of India, the petitioner's husband was
appointed as the legal guardian of his wife. In passing such order,
the Court also observed that there is no legislation in India relating
to the appointment of guardians to patients lying in comatose or
vegetative state. Similar view has been taken by the Division Bench
in Purnima Kantharia Vs. Union of India and others10.
19. In Anushka Raju Mohite (supra) the petitioner - daughter
of respondent no.5, who was suffering from Alzheimer disease who
was unable to take care of herself on account of her medical
condition, had filed the proceedings before this Court. Considering
the fact that she was the only child and she was taking care of her
mother's day to day needs, as also incurring expenses on her
medical treatment, the Court has appointed her as the legal
guardian. In passing such order, the Court also considered the
decisions in case of Vijay Ramachandra Salgaonkar Vs. State
(supra), Purnima Kantharia Vs. Union of India and others (supra)
and Aruna Ramachandra Shanbaug v. Union of India (supra). The
Court also invoked the doctrine of parens patriae to pass an order
appointing the petitioner as the legal guardian of her mother.
20. In the light of the above discussion, we see no harm in the
petitioner espousing the cause of his father in the present
proceedings. There is no dispute on facts inasmuch as the
petitioner's father has been certified by the medical board to be
suffering from the Alzheimer disease. He is unable to function
normally, he is completely dependent on others. It is the petitioner
who is taking care of his father also due to the inability of the other
members of the family. In these circumstances, we are of the clear
opinion that it is eminently in the interest of justice that the
petitioner is appointed as a legal guardian of his father/respondent
no.5. The decisions as noted by us above are squarely applicable in
the present case. The common thread which would run through
these decisions is that the Court is not powerless to resolve such
human problems and difficulties which would arise in regard to the
property of such persons considering the medical condition they
suffer. The law would thus come to the aid of such ailing person in
managing his property by his next kith and kin by appointing a
legal guardian.
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21. In the light of the above discussion, we allow the petition
in terms of the following directions:-
ORDER
(i) The petitioner Mayuresh Dipak Nadkarni shall be treated
and accepted as the legal guardian of his father Mr. Dipak
Nadkarni (respondent no.5).
(ii) All authorities shall accept the status of the petitioner
Mayuresh Dipak Nadkarni as legal guardian of Mr. Dipak
Nadkarni and allow him to operate the bank accounts and manage
the movable and immovable properties of Mr. Dipak Nadkarni as
set out in the petition.
iii. The petition is accordingly disposed of in the above terms.
No costs.”
(emphasis supplied)
5. We may refer to as to what can be understood by the medical
condition of Smt. Madhura Manmohan Khanvilkar suffering from
dementia. Dementia has been defined in Dorland’s Medical Dictionary
(21st Edition) to mean –
“dementia (de-men’she-ah) progressive mental
deterioration due to organic disease of the brain.
Paralytic d., d. paralyt’ica, a chronic disease of the
brain characterized by degeneration of the cortical
neurons and by progressive loss of mental and
physical power, and resulting from antecedent
syphilitic infection. d. prae’cox, a name formerly
given a disorder beginning or exacerbating at
puberty, and thought to lead inevitably to
progressive mental deterioration (see
schizophrenia). secondary d., that following
another kind of insanity. senile d., a chronic brain
disorder due to generalized atrophy of the brain
characterized by deterioration in intellectualPage 13 of 16
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of another kind of insanity.”
Thus dementia is a condition characterized by a decline in cognitive
functions, severe enough to interfere with one’s daily life caused by
damage to brain cells. It brings about symptoms of memory loss,
disorientation and so many other problems which would certainly
deprive the person of a normal living. It is also not in dispute that
such disease would be progressive and the symptoms would worsen
over time, and more particularly considering the age of “Smt.
Madhura Manmohan Khanvilkar”.
6. In this view of the matter, we are of the clear opinion that we need to
apply the aforesaid legal principles on the doctrine of parens patriae to the
case in hand. Considering the medical reports, which are placed on record
by Ms. Prabhune, learned AGP, we do not find that there is any
impediment for the petitioners espousing the cause that petitioner no.2 be
appointed as a legal guardian of “Smt. Madhura Khanvilkar”, as she has
been certified by the Medical Board to be suffering from dementia and
severe degree of cognitive impairment. She is unable to function normally.
She is completely dependent on others. It is petitioner no.2 who is taking
care of Smt. Madhura Manmohan Khanvilkar.
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7. Also petitioner nos.1 and 2 have placed on record their respective
affidavits in regard to the fact that they are the only legal heirs of Smt.
Madhura Khanvilkar. The contents of affidavit of petitioner no.1 are
required to be noted which read thus:-
“I, Paritosh Manmohan Khavilkar i.e. Petitioner No.1 herein, do
hereby state on solemn affirmation that:
1. I say that Late Mr. Manmohan Khanvilkar and Mrs.
Madhura Manmohan Khanvilkar got married in the year 1973 and
out of the said wedlock two children are born i.e. Mr. Paritosh
Manmohan Khanvilkar and Ms. Rajlaxmi Manmohan Khanvilkar.
I say that Mr. Manmohan Khanvilkar i.e. husband of Mrs.
Madhura Khanvilkar expired on 10/06/2020 predeceasing his wife.
2. I say that Mrs. Madhura Manmohan Khanvilkar is survived
only having myself i.e. Paritosh Khanvilkar and Rajlaxmi
Khanvilkar as her class I legal heirs. I hereby affirm that apart from
myself and Rajlaxmi Khanvilkar there is no other legal heirs or
persons having any right, title and interest either in the person
and/or properties of said Mrs. Madhura Manmohan Khanvilkar.
3. I say that Petitioner No.3 i.e. Poonam Khanvilkar is
daughter in law and Petitioner No.4 i.e. Gayatri Khanvilkar is
granddaughter of said Mrs. Madhura Khanvilkar. I hereby affirm
that both Petitioner No.3 and 4 are not the class I legal heir of
either Late Manmohan Khanvilkar or Mrs. Madhura Khanvilkar.
4. I say that apart from myself i.e. Petitioner No.1 and Ms.
Rajlaxmi Khanvilkar there is no other Class I legal heir of Mrs.
Madhura Khanvilkar.
5. I hereby affirm for myself, for Petitioner No.3 being her
husband and for Petitioner No.4 being her father and natural
guardian, that we are having no objection for the appointment of
Ms. Rajlaxmi Khanvilkar to be appointed as guardian of Mrs.
Madhura Khanvilkar and be given authorities to manage her
properties as mentioned in Table 2 of the present Petition.
6. I affirm that apart from present Petition there is no prior
claim made by any person being the guardian of Mrs. Madhura
Khanvilkar.
7. I say that whatever stated hereinabove is true and correct to
the best of knowledge and I believe the same to be true and
correct.”
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8. In this view of the matter, it is in the interest of justice that insofar as
the movable and immovable properties of Smt. Madhura Manmohan
Khanvilkar are concerned, petitioner no.2 be appointed as the legal
guardian of Smt. Madhura Khanvilkar. Accordingly we allow this petition
in terms of the following order:-
ORDER
i. Petitioner No.2-Rajlaxmi Manmohan Khanvilkar shall be treated
and accepted as a legal guardian of her mother “Smt. Madhura Manmohan
Khanvilkar”.
ii. All authorities shall accept the status of petitioner no.2-Rajlaxmi
Manmohan Khanvilkar as the legal guardian of “Smt. Madhura Manmohan
Khanvilkar”, and allow her to operate the bank accounts and manage the
movable and immovable properties of Smt. Madhura Khanvilkar as set out
in the petition.
iii. Disposed of in the above terms. No costs.
[ADVAIT M. SETHNA, J.] [G. S. KULKARNI, J.]
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