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Avinash Chander Mookhy (S) v. General Public & Ors. (S)
Factual and Procedural Background
One Sukh Darshan Jain (respondent No. 2) filed a petition under Section 53(1) of the Mental Health Act, 1987, seeking appointment as guardian of Ms. Saroj Kumari, a mentally ill person. Ms. Saroj Kumari was previously cared for by Ms. Swaran Kanta Mukhi, who died in 2007. The petitioner asserted that no close relatives were available in India to care for Saroj Kumari, as her legal heirs reside abroad, and that he, being a family friend, was capable of managing her care and property.
The petition named the appellant and respondents No. 3 and 4, siblings of Saroj Kumari, who supported respondent No. 2's appointment as guardian. However, the trial court rejected the petition on 26.11.2012, holding that respondent No. 2 was not competent to file the application or be appointed guardian as he was a stranger and not a relative. It also noted that the appellant, a real brother residing abroad, had not demonstrated willingness or presence to take care of Saroj Kumari.
The appellant challenged this order by filing the present appeal, contending that he and the other siblings prefer respondent No. 2 be appointed guardian due to their residence abroad and inability to care for Saroj Kumari themselves.
Legal Issues Presented
- Whether a non-relative (stranger) can be appointed as guardian of a mentally ill person under the Mental Health Act, 1987.
- Whether the petitioner/respondent No. 2 was competent to file the application for judicial inquisition and be appointed guardian in the presence of real siblings residing abroad.
- Whether the appellant and other siblings' non-participation and residence abroad affects their eligibility or the appointment of a guardian for the mentally ill person.
Arguments of the Parties
Appellant's Arguments
- The appellant and respondents No. 3 and 4 desire respondent No. 2 to be appointed as legal guardian of their mentally ill sister, Saroj Kumari.
- Since all the siblings are settled abroad and unable to personally care for Saroj Kumari, respondent No. 2 should be appointed guardian.
- Requested that the impugned order rejecting the petition be set aside in favor of appointing respondent No. 2 as guardian.
Respondent No. 2's Position
- Filed the original petition claiming capability to care for Saroj Kumari and her property as a family friend, given absence of local relatives.
Trial Court's Observations
- Respondent No. 2 (Sukh Darshan Jain) is a stranger and does not fall within the categories authorized to file judicial inquisition under Section 50 of the Mental Health Act, 1987.
- Appellant (Avinash Chander Mukhi), though a real brother, resides abroad and failed to assure the court of his readiness or presence to care for Saroj Kumari.
- Neither petitioner was found fit to be appointed guardian due to these reasons.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court analyzed the petition under the relevant statutory provisions of the Mental Health Act, 1987, particularly Section 50, which restricts the filing of judicial inquisition applications to relatives, Public Curators, or the Advocate General. Respondent No. 2, being a family friend and not a relative, was found incompetent to file the petition or be appointed guardian. The appellant, a real brother, though competent, resided abroad and failed to demonstrate willingness or physical presence to undertake guardianship responsibilities. The court emphasized the necessity of moral and legal obligations being actively discharged by guardians through presence and care. The court rejected the appointment of a stranger as guardian and expressed skepticism about the appellant's bona fides due to his failure to appear in court timely despite undertaking to do so. The court concluded that none of the petitioners were fit persons to be appointed guardian, particularly when real siblings exist but do not fulfill their obligations.
Holding and Implications
The appeal was dismissed.
The court upheld the trial court's order rejecting the petition for appointment of respondent No. 2 as guardian. The decision directly affects the parties by denying the appointment of a non-relative guardian and underscoring the requirement that real relatives must actively assume responsibility. No new legal precedent was established beyond reaffirming the statutory limitations on who may be appointed guardian under the Mental Health Act, 1987.
Rakesh Kumar Garg, J.
One Sukh Darshan Jain (respondent No. 2) filed a petition for appointment of guardian under Section 53(1) of the Mental Health Act, 1987 in respect of mentally ill person Ms. Saroj Kumari daughter of late Sh. Dharam Chand Mukhi. According to the case set up by him, Ms. Saroj Kumari is a mentally ill person and was under the care of Ms. Swaran Kanta Mukhi, who died on 4.8.2007 Except Swaran Kanta Mukhi, there was no kith and kin of Ms. Saroj Kumari, who could take care of her and her properties as the remaining legal heirs are settled abroad. It was the further case of respondent No. 2 that he being a family friend of the respondents, was in a position to effectively take care of Saroj Kumari Mukhi and her property.
In the petition, respondent No. 2 arrayed appellant as well as respondents No. 3 and 4 also, who are brothers and sisters of Saroj Kumari Mukhi. They filed written statement submitting that the petition be accepted and respondent No. 2 be appointed as legal guardian of mentally ill person Saroj Kumari Mukhi. However, during the pendency of the petition, an application was made on behalf of the respondent No. 2 to transpose him as applicant-petitioner No. 2. The said application was allowed on 5.1.2012
The trial Court vide order dated 26.11.2012 rejected the petition by observing as under:
“After having heard the counsel for the petitioners, I am of the view that none of the petitioners can be appointed as guardian for the mentally ill person Ms. Saroj Kumari Mukhi. As per Section 50 of the Mental Health Act, 1987, the application for judicial inquisition can be made by any of the relatives of the mentally ill person or by a Public Curator appointed under Indian Succession Act, 1925 or by the Advocate General of the State in which the alleged mentally ill person resides. The petitioner No. 1, Sukh Darshan Jain does not fall within the category of any such persons, therefore, neither he is competent to file the application for judicial inquisition nor he can be appointed as the guardian of the mentally ill person. So far as, the petitioner No. 2, Avinash Chander Mukhi is concerned, certainly, he is the real brother of the mentally ill person and competent to file application for judicial inquisition. But admittedly, he is residing in Sydney, Australia and even his local address has not been mentioned in the petition. He has also not come forward to step into the witness box to depose that he is ready to take care of the person and the property of the mentally ill person Ms. Saroj Kumari Mukhi. Unless this kind of assurance is given by the petitioner No. 2, how can he be appointed as the guardian for the person and the property of the mentally ill person. Moreover, when he is not residing in India, how can he take care of person and property of mentally ill person. Thus, I find none of the petitioners to be the fit persons to be appointed as guardian of the mentally ill person Ms. Saroj Kumari Mukhi.”
Aggrieved from the aforesaid order, the appellant has filed the instant appeal submitting that he as well as other respondents No. 3 and 4 want respondent No. 2 to be appointed as a legal guardian of Saroj Kumari Mukhi, who is their sister, and since all the relatives of the mentally ill person are settled abroad, therefore, respondent No. 2 should be appointed as guardian and in view thereof, the impugned order be set aside and respondent No. 2 be appointed as legal guardian of Saroj Kumari Mukhi.
A careful reading of the application for appointment of respondent No. 2 as legal guardian of mentally ill person would show that the appellant as well as respondents No. 3 and 4 are not ready to take responsibility of their mentally ill sister as they have shown no interest to stay in India and to serve their mentally ill sister and instead have made this petition and further filed this appeal to appoint respondent No. 2 as guardian.
At the asking of the Court, learned counsel for the appellant had sought time to file an affidavit on behalf of the appellant to submit that the appellant is ready to take care of Ms. Saroj Kumari Mukhi, his elder mentally ill sister. However, no affidavit was filed. On 4.7.2013, this Court directed the appellant to be present in Court just to assess his bona fides. On 16.8.2013, counsel for the appellant sought a short adjournment to enable him to get instructions from the appellant and thereafter, filed an affidavit dated 19.8.2013 undertaking to take legal guardianship of his elder mentally ill sister and to abide by all the legal and moral obligations towards her. The case was adjourned to 1.10.2013 and the appellant was asked to be present in Court to show his bona fides.
Today, another affidavit dated 23.9.2013 has been filed wherein it has been stated that the appellant was willing to take legal guardianship of Saroj Kumari Mukhi but he could not travel to India and shall be present after 18.12.2013 before this Court.
From the conduct of the appellant, it is crystal clear that he is only interested to take the legal guardianship of the mentally ill sister, namely, Saroj Kumari Mukhi. However, he has failed to show any of his intentions to discharge his moral obligations by serving his elder mentally ill sister as despite asking of the Court, he could not even spare time to come to India.
In view thereof, this Court finds no merit in this appeal as in the presence of the real brothers and sisters, a stranger i.e Respondent No. 2 (who is a friend of the appellant), is coming forward to claim legal guardianship of mentally ill person.
Even otherwise, as per the provisions of the Act, a stranger cannot be appointed as guardian of mentally ill person.
In view thereof, I find no merit in this appeal.
Dismissed.
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