Madras High Court Allows Brother To Be Appointed As Legal Guardian Of Woman With Mental Disability

The Madurai Bench of Madras High Court on Tuesday while permitting the brother of a schizophrenic patient to be appointed as her legal guardian, observed that “person suffering from multiple disability” in Section 2 (j) of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 must be understood to mean “a person with benchmark disability” as defined in Section 2(r) of the 2016 Act.

The Court observed that this would enable the Local Level Committee constituted under Central 44 of 1999 to deal with cases of appointment of guardian for persons suffering from any kind of disability.

Justice G. R. Swaminathan observed that the Local Level Committee constituted under Central 44 of 1999 should not confine themselves to cases of congenital conditions such as autism, cerebral palsy and mental retardation alone and that they should also deal with other disabilities as it would enable easier and quicker access to justice.

the expression “person suffering from multiple disability” occurring in Section 2 (j) of the 1999 Act must be understood to mean “a person with benchmark disability” as defined in Section 2(r) of the 2016 Act. Adopting such an approach would enable the Local Level Committee to deal with cases of appointment of guardian for persons suffering from any kind of disability. The Local Level Committee constituted under Central 44 of 1999 should not confine themselves to cases of congenital conditions such as autism, cerebral palsy and mental retardation alone. They should also deal with other disabilities. The 1999 Act should be applied in the light of the new 2016 RPwD Act and not in the light of the repealed 1995 Act. This is more so because it is easier to secure appointment of guardianship under the 1999 Act. Approaching the High Court and getting orders expeditiously may not always be possible. If the Local Level Committee under the 1999 Act has the power to appoint guardian, that would certainly enable easier and quicker access to justice.

The question posed before the bench was whether under Section 14 of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (Central Act 44 of 1999), the petitioner can be appointed as legal guardian for his schizophrenic sister.

The Petitioner's sister has been assessed at 60% on the IDEAS Scale and the Regional Medical Board has certified that she cannot earn a livelihood on her own and that she is dependent upon her family members to look after her day-to-day activities. The District Differently Abled Welfare Officer, Madurai has also issued certificate on the same lines and the jurisdictional Tahsildar has certified that she is a spinster and that she is mentally ill and that she is under the care of the petitioner.  However, the petitioner's request for appointing him as her legal guardian was rejected citing that under Act 44 of 1999, there is no provision for appointing legal guardian for a person with mental illness. 

The Court observed that the institutional framework laid down in Central Act 44 of 1999 is not confined only to persons with autism, cerebral palsy and mental retardation. 

The authorities appear to be under the impression that the 1999 Act is not meant to deal with acquired disabilities. This understanding is incorrect. This is because the second part of the definitional clause in Section 2(j) of the 1999 Act encompasses persons suffering from multiple disabilities. As already noted, this definition will take us to the definition set out in 2(i) of the 1995 Act. The first five categories catalogued in the said definition can be either congenital or acquired later. None of the said categories either by themselves or even in combination would necessarily warrant appointment of guardian. Mental illness has been mentioned as the seventh category in the definition. I am therefore of the view that mental illness ought not to be kept out of the scope of the 1999 Act.

The Court further opined that while dealing with beneficial legislation, the Court's approach must be to adopt the now that would empower the targeted categories while considering the question as to whether Section 2(i) of the 1995 Act finds a place in Central Act 44 of 1999 by way of reference or by way of incorporation.

The Court observed that while in the 1999 Act, the expression “severe disability” means disability with eighty percent or more of one or more of multiple disabilities, the Rights of Persons with Disabilities Act, 2016  talks of “benchmark disability” which refers to a person with not less than forty percent of a specified disability where it has not been defined in measurable terms. The 2016 Act does not employ the expression “severe disability”.The Court made a reference to the Apex Court decision in Vikash Kumar v. UPSC.

The 2016 Act has been described as paradigm shift from a stigmatizing medical model of disability under the 1995 Act to a social model of disability. The 2016 RPwD Act now recognizes 21 specified disabilities and enables the Central Government to add further categories of disability. I therefore construe the statutory scheme set out in Central Act 44 of 1999 with reference to and in the light of Central Act 49 of 2016, the Court said. 

The Court pursuing the provisions of Section 2(j) of the 1999 Act observed that though Section 2(h) talks of a combination of two or more disabilities as defined in Section 2(i) of the 1995 Act and the first five categories set out therein do not really necessitate the appointment of guardian. The sixth category, namely, mental retardation however is dealt with in the 1999 Act.

Looked at from that angle, it is superfluous to insist that the condition of mental illness should be combined with one or more of the first five categories. This is because guardianship is required only because of the condition of mental illness. To reiterate, the conditions set out in the first five categories do not really by themselves or even in combination require appointment of guardian. The expression “combination of two or more disabilities” must be appropriately and purposively understood, the Court observed.

The Court, therefore, observed that “person suffering from multiple disability” in Section 2 (j) 1999 Act must be understood to mean “a person with benchmark disability” as defined in Section 2(r) of the 2016 Act. As this would enable the Local Level Committee constituted under Central 44 of 1999 to deal with cases of appointment of guardian for persons suffering from any kind of disability.

On facts, the Court pointed out that the petitioner's sister is suffering from 60 % disability and the materials on record indicate that the petitioner's sister is suffering from benchmark disability. Though as per the definition in the 1999 Act only if the person is suffering from more than 80% disability, would come under the severe category but since the concept of severe disability has been given up in the 2016 Act, the Court observed that a case for appointing guardian has been made out. 

Thereby, the Court set aside the impugned order and directed that the petitioner be appointed as the guardian for his sister. 

Case Title: G. Babu v. The District Collector and Ors. 

Citation: 2023 LiveLaw (Mad) 30

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