Kerala HC: Under S.14 Disabilities Act, District Court And Designated Authority Have Concurrent Jurisdiction To Grant Limited Guardianship

The learned Government Pleader, Smt. K.B Sony, as well as the Central Government Counsel, Sri. Girish Kumar submits that, as per Section 14 (1) of the Act, the District Court or the designated authority has concurrent jurisdiction when entertaining a petition. The party is given the option of either the jurisdiction of the District Court or the designated authority. Therefore, the legislature, in its wisdom, had drafted the section to give concurrent jurisdiction to the District Court as well as the designated authority. {Para 11}

12. A combined reading of Section 14 (1) coupled with Rules 4, 7 and 8 of the Kerala Rules, it is amply clear that the District Court or the designated authority notified by the State Government has concurrent jurisdiction to entertain a petition or appointment of a limited guardian of person who is coming under the definition of 'person with disability' under Section 2(s) of the Act.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

FAO No. 32 of 2023

Decided On: 20.10.2023

Abootty K.A. Vs. Kolangottil Pathumma and Ors.

Hon'ble Judges/Coram:

Basant Balaji, J.

Citation: 2023:KER:69216, MANU/KE/3830/2023.

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Kerala HC: Parliament In Its Wisdom Permits Only Limited Not Permanent Guardianship For Mentally Disabled Person Under PwD Act

A co-joint reading of the above-extracted

provisions substantiates that the District Court or the

designated Authority are empowered to appoint a

limited guardian for a person who is suffering from a

disability as defined under Section 2(s) of the

Disabilities Act, which includes mental disability. {Para 9}

10. It is as per the provisions of the

Disabilities Act that the designated authority had

passed Exts.P14 and P15 orders.

11. On an analysis of the scheme of the

Disabilities Act, a person can only be appointed as a

limited guardian because the office of guardianship

operates on a mutual understanding and trust between

the guardian and the person with a disability for a

specific purpose or situation or to take a particular

decision in accordance to the will of the person with a

disability. Presumably, it is in the above context that the

Parliament, in its wisdom, has only permitted limited

guardianship and not permanent guardianship.

Therefore, the concept of permanent guardianship is

alien to the Disabilities Act. Similarly, there is no

provision under the National Trust Act to appoint a

guardian for a person with mental illness. (Read the

decision of this Court in Latha T.B @ Latha Ravi and

others v. Union of India [2021(3) KHC 304].

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) NO.25127 OF 2024

BINDUMOL A T  Vs  UNION OF INDIA

PRESENT

 MR.JUSTICE C.S.DIAS

 8TH DAY OF JANUARY 2025.

Citation: 2025:KER:1151

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Important provisions of National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999

National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999.

2. Definitions.—In this Act, unless the context otherwise requires,—

(a) “autism” means a condition of uneven skill development primarily affecting the communication and social abilities of a person, marked by repetitive and ritualistic behaviour;

(b) “Board” means Board of trustees constituted under Section 3;

(c) “cerebral palsy” means a group of non-progressive conditions of a person characterised by abnormal motor control posture resulting from brain insult or injuries occurring in the pre-natal, perinatal or infant period of development;

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Difference between procedure to be adopted by Magistrate in inquiry for an offence committed by a person of unsound mind and person suffering from mental retardation

 Thus, in law, there exists a clear distinction between a mentally ill person and a person suffering from mental retardation. 

In Suchita Srivastava and another vs. Chandigarh Administration(2009) 9 SCC 1, the Supreme Court held that this distinction  can be collapsed for the purpose of empowering these respective classes of persons, but, cannot be disregarded so as to interfere with their personal autonomy.

25. Reverting to Section 328 Cr.P.C., the inquiry in respect of

persons of unsound mind is governed by Section 328(3) Cr.P.C., whereas, the enquiry in respect of persons suffering from mental retardation is governed by Section 328 (4) Cr.P.C. In either category, the first stage is that, if the Magistrate receives information that the accused is of unsound mind or

suffers from mental retardation, he is required to determine whether such condition, in praesenti, renders the accused incapable of entering defence. If the answer to this question is in the affirmative, the Code prescribes two different consequences depending on whether the accused is suffering from unsoundness of mind or mental retardation.

26. If the case falls in category one (persons of unsound mind), the Magistrate is required to examine the record of evidence, hear the advocate for the accused, and may discharge the accused if he finds that no prima facie case has been made out. If a prima facie case is made out, the Magistrate is required to follow the procedure set out in the proviso to Section 328 (3) Cr.P.C. If the case falls in category two (persons suffering

from mental retardation), Section 328(4) Cr.P.C. empowers the Magistrate to immediately order closure of the enquiry and direct that the accused be dealt with under Section 330 Cr.P.C.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Crl.O.P.No.4993 of 2018 and Crl.M.P.Nos.2485 & 2486 of 2018

Kaliyappan Muniyappan Aanurpatty Vs State 

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Madras HC: Precaution to be taken by the magistrate before committal of accused of unsound mind to session court

While so, the police completed the investigation and filed a final

report in P.R.C.No.15 of 2017 against Kaliyappan for the offence under

Section 302 IPC before the District Munsif-cum-Judicial Magistrate, Omalur.

Surprisingly, the Magistrate commenced the proceedings under Sections 207

and 209 Cr.P.C. and committed the case to the Court of Session, by order

dated 03.03.2008 in P.R.C. No.15 of 2007. Even during the committal

proceedings, the Magistrate did not take any steps to satisfy himself as to

whether Kaliyappan was in a sound state of mind to understand the proceedings.

20. A close reading of Section 328 Cr.P.C. shows that it deals with

(a) persons of unsound mind and (b) persons suffering from mental retardation at the stage of an inquiry. The expression “inquiry” is defined in Section 2(g) to mean every inquiry, other than a trial, under the Code. These may include proceedings relating to remand, bail, taking of cognizance, issuance of process, furnishing of copies, committal proceedings and framing

of charges. In this case, though there were sufficient materials to indicate that Kaliyappan was suffering from mental illness even at the stage of committal, no steps were taken by the committal Court under Section 328 Cr.P.C.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Crl.O.P.No.4993 of 2018 and Crl.M.P.Nos.2485 & 2486 of 2018

Kaliyappan Muniyappan Aanurpatty Vs State 

CORAM:

 Mr. JUSTICE P.N. PRAKASH

PRONOUNCED ON: 04.09.2020

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Notes on provisions regarding accused person of unsound mind

S 328 of CRPC(amended by amendment Act 2008 with effect from 31-12-2009)

Procedure in case of  accused being lunatic:-

1) When a Magistrate holding an inquiry has reason to believe that the person against whom the inquiry is being held is of unsound mind and consequently incapable of making his defence , the Magistrate shall inquire into the fact of such unsoundness of mind and shall cause such person to be examined by Civil Surgeon or other medical officer of district and thereupon shall examine such surgeon or other officer as a witness and shall reduce the examination to writing.

(1-A) If civil surgeon finds accused to be of unsound mind,he shall refer such person to a psychiatrist for care and treatment and psychiatrist shall inform Magistrate whether accused is suffering from unsoundness of mind or mental retardation:

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What is difference between mental illness and mental retardation?

The three-Judge Bench referred to the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, '1995 Act') and opined that in the said Act also "mental illness" has been defined as mental disorder other than mental retardation. The Court also took note of the definition of "mental retardation" under the 1995 Act. The definition read as follows:

2(r) 'mental retardation' means a condition of arrested or incomplete development of mind of a person which is specially characterised by subnormality of intelligence.

31. The Court also apprised itself that the same definition of "mental retardation" has also been incorporated Under Section 2(g) of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999. Analysing the provision of Act. The Court opined that while a guardian can make decisions on behalf of a "mentally ill person" as per Section 3(4)(a) of the 1971 Act, the same cannot be done on behalf of a person who is in a condition of "mental retardation". Thus, the difference between the 'mental illness' and 'mental retardation' as recognized in law, was emphasised.

32. The three-Judge Bench proceeded to address the 'best interest' of the victim and invocation of the doctrine of parens patriae. In that context, it held:

As evident from its literal description, the "best interests" test requires the Court to ascertain the course of action which would serve the best interests of the person in question. In the present setting this means that the Court must undertake a careful inquiry of the medical opinion on the feasibility of the pregnancy as well as social circumstances faced by the victim. It is important to note that the Court's decision should be guided by the interests of the victim alone and not those of the other stakeholders such as guardians or the society in general. It is evident that the woman in question will need care and assistance which will in turn entail some costs. However, that cannot be a ground for denying the exercise of reproductive rights.

33. After so stating, the Court adverted to the facts of the case and came to hold that though the victim had been described as a person suffering from mild mental retardation, that did not mean that she was entirely incapable of making decision for herself. It discarded the 'substituted judgment' test, which requires the Court to step into the shoes of a person who is considered to be mentally incapable and attempt to make the decision which the said person would have made, if she was competent to do so. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 10463 of 2017

Decided On: 17.08.2017

 Z  Vs  The State of Bihar and Ors.

Hon'ble Judges/Coram:

Dipak Misra, Amitava Roy and A.M. Khanwilkar, JJ.

Citation: ( 2018) 11 SCC 572

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