In India, children above the age of eighteen years are considered major and custody laws do not apply to them. However, the High Courts have the power to exercise parens patriae jurisdiction in matters of custody.
Fri Jul 01 2022 | Family Law | Comments (0)
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 themselves. Therefore, they may require someone to represent their legal interests 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.
Section 13 of the Rights of Persons with Disabilities Act 2016 (RPD Act) recognises that persons with disabilities have a 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 appoint guardians.
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.
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.
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 mental disturbance. The parents were also exploring ways and means to enable treatment for their daughter. The girl in question was in a vulnerable condition occasioned by mental disturbance, owing to which the Court refused to invoke the 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 two children.
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 doctrine. The High Courts 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. The 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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