Justice Rajan Roy, Justice Om Prakash Shukla, Allahabad High Court, Lucknow Bench
No Guidance On What Would Constitute ‘Wills and Preferences’ Of Mentally Ill Person Under Mental Healthcare Act; Courts & Board Exercise Parens Patriae Jurisdiction: Allahabad High Court
|The Allahabad High Court observed that the "wills and preferences" of the mentally ill person and the other factors set out in the rules are borne in mind by the Board or the Court while exercising its parens patriae jurisdiction.
While nominating the nephew as a representative for his mentally disabled aunt, the Allahabad High Court has highlighted the fact that no guidance exists as to what would constitute the "wills and preferences" of a mentally ill person under the Mental Healthcare Act, 2017.
The High Court observed that the "wills and preferences" of the mentally ill person and the other factors set out in the rules are borne in mind by the Board or the Court while exercising its parens patriae jurisdiction.
The Petitioner had invoked the writ jurisdiction of the High Court, seeking a direction to quash the impugned order passed by the opposite party -Mansik Swasthya Punarvilokan Board, Barabanki (Board), whereby the application filed by the petitioner under Section 14 of the Mental Healthcare Act, 2017 (MH Act, 2017) came to be rejected on the ground that the petitioner had a criminal history and couldn’t be appointed as a representative of his mentally ill aunt.
The Division Bench of Justice Rajan Roy and Justice Om Prakash Shukla said, “Further, this Court notes that the MH Act had laid down certain standards and factors to be considered while determining the "best interest" of the mentally ill person. However, no guidance exists as to what would constitute the "wills and preferences" of the person. Even in the proviso to Section 14 (1), the factors to be considered for providing total support are conspicuously absent. The MH Act has no provision in respect of management of financial affairs, appointment of guardians or the manner in which the movable/immovable property of the mentally ill person is to be taken care of. Thus, there is a clear statutory vacuum. In any event, this Court is of the opinion that the solemn nature of the said jurisdiction having been repeatedly recognized by the Hon’ble Supreme Court, the question as to whether it is the Board or the Appellate Authority or as to which Court has to exercise it and in what manner is one of mere procedure, so long as the "wills and preferences" of the mentally ill person and the other factors set out in the rules are borne in mind by the Board or this Court while exercising its parens patriae jurisdiction.”
Advocate Surendra Singh represented the Petitioner while C.S.C. represented the Respondent.
Factual Background
The father of the fourth opposite party was working as a Noter and Drafter in Madhyanchal Vidyut Vitran Nigam Limited at Ayodhya region, and while working in the same capacity, he retired on attaining the age of superannuation. Thereafter, the father was getting pensionary benefits from the department till his death. The mother of the fourth opposite party had already died. The daughter stated to be suffering from Moderate Intellectual Disability IQ-44 (VSMS) (disability about 75% as per Disability Certificate), which is not curable by way of treatment, had applied for family pension. She was granted Rs. 14,400 towards family pension till her marriage or death.
The petitioner claimed that he is a close relative (nephew) of the fourth opposite party and, looking into her pathetic condition, he decided to take her responsibility, for which other family members had no objection. The Petitioner moved an application before the Board under Section 14 of the MH Act, 2017, seeking his nomination as a representative/ prabandhak to take care of her and her property, but the same was rejected. Aggrieved thereby, the Petitioner approached the High Court.
Reasoning
The Bench noted that the Board, having been constituted under Section 73 of the MH Act, 2017, had passed the impugned order by exercising its power under Section 80 (2) (a) of the MH Act, 2017, which is essentially statutory in nature.
The Bench explained that the term ‘moral turpitude’ is not defined under the law, but based on judicial precedents, it refers to instances where an individual indulges in acts which are against morality, integrity, and ethics. “This Court in the facts of the present case and taking a holistic view of the sections invoked against the petitioner in two criminal cases pending against the petitioner, is of the considered view that the offences alleged does not involve any offence of moral turpitude”, it said.
The Bench further noted that the MH Act has laid down certain standards and factors to be considered while determining the "best interest" of the mentally ill person. However, no guidance exists as to what would constitute the "wills and preferences" of the person. It was stated that Courts & Board exercise parens patriae jurisdiction.
Coming to the facts of the case, the Bench noted that the opposite party is unable to take decisions in her own interest and is in a seriously declined mental and physical state. Insofar as the persons who ought to be appointed as her guardians are concerned, she did not appear to have any other legal heir, except the petitioner, who is her relative and a family as being the son of her real brother. Further, the affidavit of no objection of the other relatives appeared convincing to the Bench.
Thus, the Court exercised its parens patriae jurisdiction and quashed the impugned order while directing the Petitioner to be appointed as the nominated representative under the MH Act, 2017 and to provide support to her under the Rights of Persons with Disabilities (RPwD) Act, 2016.
Cause Title: Saurabh Mishra v. State Of U.P. Thru. Prin. Secy. Deptt. Of Medical Health And Family Welfare U.P. Lko. And 3 Others (Case No.: WRIT - C No. - 10898 of 2024)
Appearance:
Petitioner: Advocate Surendra Singh
Respondent: C.S.C.