Legal Guardianship Of A Person With Disability Under Rights Of Persons With Disabilities Act 2016
Mental Health Act, 2017 defines a guardian as a person who is appointed to look
after another person. They have to assume the care and protection of the person
for whom they are appointed as a guardian. The guardian takes all legal
decisions on behalf of the person concerned.
In India, children above the age of eighteen years are considered major and
custody laws do not apply to them. Though it is not mandatory to apply for legal
guardianship of a person with disability, since the National Trust Act, 1999 has
made provision for such appointment it is always advantageous to apply for legal
guardianship under the provisions of the said Act. Such occasion may arise when
a person with disability has to deal with issues related to himself, his
interests and his properties and since he/she may not always be able to take
appropriate decisions in those respects, it would be in the best interests if
represented by a legal guardian in such matters.
People with autism, cerebral palsy, mental disabilities are in a special
situation as even after they have acquired 18 years of age, they may not always
be capable of managing their own lives or taking legal decisions for their own
betterment. Therefore, they may require someone to represent their interests in
the legal areas throughout their lives. However, in cases of cerebral palsy and
multiple disabilities, there may be a need for only limited guardianship because
of the availability of enabling mechanisms and/ or scientific facilitations
which enable such persons to function with varying degrees of independence.
Legal Capacity of People with Disabilities:Section 13 of the Rights of Persons with Disabilities Act 2016 (RPD Act)
recognises that persons with disabilities have legal capacity with respect to
financial matters, inheritance etc. It provides that the Government must
undertake suitable measures to enable persons with disabilities to enter into
financial contracts and own property in their name without any discrimination.
The statute also mandates that persons with disabilities should have legal
capacity on par with others. Section 14 provides for limited guardianship of
persons with disabilities where they require additional support or assistance.
The limited guardian is expected to act based on mutual trust and decisions with
the consent of the persons with disabilities who appoint them.
The RPD Act clearly recognises the legal capacity of people with disabilities.
This is in accordance with Article 12 of the United Nations Convention on the
Rights of Persons with Disabilities, 2006 which also recognises legal capacity
and calls for member states to provide protection to people with disabilities.
While all guardians appointed under any other law before April 2017 (when the
RPD Act came into effect) would be limited guardians, the RPD Act does not
clarify the status of guardians appointed under other laws after its enactment.
This is particularly crucial as it also does not provide for any procedure to
The Kerala High Court in the case of Kailas Natarajan v. District Police
Chief dismissed the writ petition of Habeas Corpus filed by the petitioner
for the release of his 21-year-old partner and yoga student from her parents'
alleged forceful detention or illegal custody. He had relied on Supreme Court's
decision in Shafin Jahan v. Asokan K.M where it was held that an adult is
capable of making their own life choices, without any hindrance.
Background of the case:
The parents of the girl on the other hand argued that their daughter was
suffering from bouts of depression and they were only trying to provide
psychiatric help for her. They consulted the petitioner who was a spiritual
teacher/guru for treatment of their daughter, but he in the guise of counselling
and therapy insisted on solitary sessions with the girl after which she
developed an obsessive attachment with the petitioner. The parents believed that
her obsessive thoughts were not normal for which she required treatment.
In the present case the alleged detenue was residing in her parental home. The
petitioner who was 52 years old alleged illegal detention of the subject by her
own parents on the ground that he has a live-in relationship with her for the
last two and half years. It is pertinent that though the assertion is of a
live-in relationship there is no contention that the subject ever lived with him
and was illegally taken away by her parents. The petitioner was already married
and had two children in the wedlock as well.
Findings of the High Court:
The Court found the alleged detenue in the case to be incapable of taking a
decision for herself and directed her to be retained with her parents at her
parental home. The Court found nothing to remove the subject from the custody of
her parents considering her mental state. The Court also emphasised that the
parents in this case were in no manner incapable of or dis-entitled from
retaining custody of their daughter, who though a major was showing signs of
The parents were also exploring ways and means to enable
treatment for their daughter. The girl in question was in a vulnerability
condition occasioned by mental disturbance, owing to which the Court refused to
invoke the extra ordinary remedy available under Article 226 of the Constitution
since the girl was in safe custody of her parents.
The Court finally reiterated how the petitioner had breached the trust of the
parents who consulted him for psychiatric help for their daughter. Their trust
in him as a doctor and therapist was breached to the extent of the petitioner
declaring his patient to be a live-in partner when he was already married with
Parens Patriae Jurisdiction of the Court:Constitutional courts in this country exercise parens patriae
jurisdiction in matters of child custody treating the welfare of the child as
the paramount concern. There are situations when the court can invoke the parens
patriae principle and the same is required to be invoked only in exceptional
situations. For example, where a person is mentally ill and is produced before
the court in a writ of habeas corpus, the court may invoke the aforesaid
The High Court's under Article 226 of the Constitution of India can exercise the
parens patriae doctrine. The constitutional courts may also act as parens
patriae so as to meet the ends of justice. But the said exercise of power is not
without limitation. The courts in every case cannot invoke this doctrine.
said doctrine has to be invoked only in exceptional cases where the parties
before it are either mentally incompetent or have not come of age and it is
proved to the satisfaction of the court that the said parties have either no
parent/legal guardian or have an abusive or negligent parent or legal guardian.
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