Guardianship Of Major Child Suffering From Mental Retardation Can Be Granted U/S 7 Of Guardians & Wards Act: Bombay High Court

Noting a lacuna in the law for mentally retarded persons, the Bombay High Court extended the scope of Section 7 of the Guardians and Wards Act 1980 to allow guardianship of an adult suffering from mental retardation.

Justice Riyaz Chagla observed that provisions of the Mental Health Act, both the repealed and the existing Acts, did not cover mental retardation under the definition of mental illness.

The court noted the existing Mental Healthcare Act, 2017 unlike the repealed Act doesn’t have a provision for the District Court to appoint a suitable person as Guardian of a person suffering from mental illness and incapable of taking care of himself.

“Thus, in my view the only remedy available in such cases is for the Petitioner to apply under the Guardians and Wards Act, 1890 for the Petitioner to be appointed as Guardian of the person, despite he/she being a major, but suffering from mental retardation,” the bench said.

Accordingly, the court appointed the petitioner-mother as the guardian of her 27-years-old daughter and the daughter’s assets to take necessary decisions for her daughter’s benefit.

The court was dealing with a petition filed by a mother seeking to be appointed guardian of her major daughter suffering from disability-70%, moderate mental retardation. The petitioner submitted she has two children and their father had passed away in 2009.

She was the only one in the position to look after her daughter. She had no option but to file a suit seeking division of her husband’s property. According to the consent terms a flat came under the joint share of her daughter and son. Therefore, she wanted to be declared her daughter’s guardian.

She intended to sell the flat, put the money in a fixed deposit and care for her daughter with the interest.

Advocate for the petitioner highlighted how there was a lacuna in the law for people like his client.

He submitted that the petition was being filed under Section 7 of the Guardians and Wards Act, 1890 which is the only remedy available for his client. He submitted that the repealed Mental Health Act, 1987 had in the definition of Mental illness under Section 2(l) excluded mental retardation.

Thus, as in the present case, a person suffering from mental retardation is not covered under the Mental Healthcare Act, 2017. He submitted, that the Guardians and Wards Act, 1890 under Section 7 provides for the appointment of the Guardian of a Ward, who is a minor.

He submitted Section 7 should include the case of a child who has attained majority but is suffering from mental retardation and having no independent thinking, considering the peculiarity of such cases. Otherwise, there is no remedy available to a Petitioner seeking appointment as Guardian of an adult, who is suffering from mental retardation.

Having perused the provisions of the Mental Health Act, both the repealed Act as well as the repealing Act, it appears that mental retardation is not covered under the Act as it does not fall within the definition of mental illness, the court observed and granted relief.