Due to 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 permitting guardianship of an adult female suffering from mental retardation.
Justice Riyaz Chagla observed that provisions of Mental Health Act (the repealed and the existing Acts; both), did not cover mental retardation under the mentioned definition of mental illness.
The Court noted the existing Mental Healthcare Act, 2017 unlike the repealed Act doesn’t possess a provision for the District Court to appoint a suitable person as Guardian of a person suffering from mental illness and not able to take care of himself.
The bench said, “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.“
Thus, the Court granted the petitioner-mother the guardianship 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 guardianship of her daughter suffering from mental disability 70%. The petitioner submitted that she has two children and their father had passed away in 2009.
And she was the only one in the condition to take care of her daughter. She had no option but to file a suit for seeking division of the property of her husband. According to the consent terms, a flat came under the joint share of her daughter and son. So, she wanted to be declared as her daughter’s guardian.
The petitioner intended to sell the flat and put the money in fixed deposit and look after her daughter with the interest.
The Advocate representing the petitioner highlighted that how there was a lacuna in the law for such people.
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 He further submitted that the repealed Mental Health Act 1987 had in the definition of Mental Illness under Section 2 (1) excluded mental retardation.
Due to which, 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 allows the appointment of a Guardian of a Ward, who is a minor.
He submitted Section 7 should include the case the case of such children who has attained majority but suffering from mental retardation and have no independent thinking and not capable of taking care of themselves. Otherwise, there is no remedy available to a Petitioner seeking appointment as Guardian of an adult suffering from mental retardation.
Having perused the provisions of the Mental Health Act, the repealed and also the repealing Act, it appears that mental retardation is not covered under the Act as it does not come with the definition of mental illness, the Court observed and thus granted guardianship.
News Source: https://www.livelaw.in/amp/high-court/bombay-high-court/bombay-high-court-ruling-guardian-appointment-major-person-suffering-mental-retardation-section-7-guardian-wards-act-237292