Paritosh Manmohan Khanvilkar v. Union of India

1. This petition under Article 226 of the Constitution of India is filed invoking the doctrine of parens patriae whereby petitioner no.1 and petitioner no.2, who are the son and daughter of “Smt. Madhura Manmohan Khanvilkar” age 78 years, are before the Court praying that petitioner no.2 Rajlaxmi, daughter of Smt. Madhura be appointed as a guardian of her mother who is stated to be suffering from dementia and severe degree of cognitive impairment.

2. Considering such plea as urged on behalf of the petitioners, by an order dated 19 March 2025 passed on the present proceedings, this Court requested the Dean of Byramjee Jeejeebhoy (B.J.) Medical College and SAGAR VARTAK Sassoon General Hospital, Pune to appoint a Medical Board consisting of experts who would visit the residence of petitioner no.2 where Smt. Madhura Khanvilkar resides so as to examine her and make a report of her medical condition to the Court, to be forwarded to the learned Assistant Government Pleader. Accordingly, a Medical Board was constituted by the Dean of B.J. Medical College. A report of the Medical Board was forwarded by the Dean along with his covering letter dated 05 April 2025 which was placed on record of this Court. Summary and impressions of ‘Department of Clinical Psychology’ read thus:- “SUMMARY  MMSE findings indicative of Severe degree of cognitive impairment.  MOCA findings indicative of Severe degree of cognitive  PGIMS findings indicative of Severe degree of cognitive IMPRESSIONS The index patient seems to be suffering from severe cognitive impairment in domains of Memory (Remote & Recent), Attention/Concentration, Recall (Delayed & Immediate), Language, Orientation, Abstraction and Visuospatial/ Executive functioning.”

3. The report of the Medical Board as constituted by the Dean of Sassoon General Hospital, Pune dated 05 April 2025 records the following observations on the medical condition of “Smt. Madhura Manmohan Khanvilkar”:-

2) Psychological assessment report by Assistant professor. Department of Clinical psychology, Maharashtra Institute of Mental Health, Pune with outward no. 257 Date 02/04/2025 As per order of Bombay High Court a committee was constituted via reference letter no. I to assess the medical condition of Mrs. Madhura Manmohan Khanwilkar. The committee is herewith submitting the report. Name: Mrs. Madhura Manmohan Khanwilkar Age: 78 years MRD No: 0/15/25158 Informant: Daughter (Ms. Rajlaxmi), Son (Parotish) and Caretaker (Ms. Akshada) Medical history: Mrs. Madhura Manmohan Khanwilkar has history of forgetfulness, unable to perform day to day activities. As per available medical records she is having Type II Diabetes Mellitus. Hypertension and Dementia. She is currently under the treatment of Dr. Vedavati Purandare of Chellaram Hospital. She had history of recurrent urinary tract infections for which she has undergone cystodialatation. She had history of recurrent wheeze for which she was under treatment of Dr. Swapnil Kulkarni with possible diagnosis of late onset asthma or microaspiration or tracheomalacia. As per medical document form Dr. Shripad Pujari. Neurologist of Deenanath Mangeshkar hospital dated 27/06/2023. she had past history of multiple sclerosis more than 10 years. However currently she is not on any treatment for multiple sclerosis. The various past medical records were reviewed. Mrs. Madhura Manmohan Khanwilkar was examined at her home on 27/03/2025. She was assessed in Sassoon hospital on 28/03/2025. Additional information was obtained from her son Mr. Paritosh on 01/04/2025 as patient was staying with him at the time of onset of dementia. Clinical examination at home: Mrs. Madhura Manmohan Khanwilkar was conscious, cooperative, and communicative Her pulse rate was 88/minute and her blood pressure was 136 84 mm of Hg. She had mild pallor. Her respiratory, cardiovascular, per abdomen examination was within normal limits. On central nervous system examination, she was conscious. She was able to walk with support. Mental status examination at Sassoon hospital: Mrs. Madhura Manmohan Khanwilkar was conscious, minimally cooperative, and communicative. She was muttering to self and had frequent anger outbursts. Her attention was aroused but not sustained, eye to eye contact was initiated but not maintained. She could comprehend simple instructions. The patient was irritable throughout assessment and required multiple efforts by examiner. However she attempted answering questions after understanding them correctly. She was oriented to person but her orientation to time and place was impaired. Her recent and remote memory was impaired. Her insight was impaired. Psychological assessment:: Mrs. Madhura Manmohan Khanwilkar was referred for psychological testing and assessment to Department of clinical psychology. Maharashtra Institute of Mental Health, Pune. The report is attached as reference no. 2. Mini-Mental Status Examination. Montreal Cognitive Assessment and PGI- Memory scale were applied by Clinical Psychologist. Her psychological testing was indicative of Severe degree of cognitive impairment. Conclusion: As per history, past medical records, clinical examination and psychological assessment. Mrs. Madhura Manmohan Khanwilkar was found to have suffering from Dementia.”

4. The Courts have exercised jurisdiction under Article 226 of the Constitution by appointing a legal guardian in respect of diabled persons applying the doctrine of parens patriae. The principle that the interest of the person with a disability being required to be addressed is duly recognized in the legal jurisprudence. The principles invoking such doctrine fell for consideration of this Court in Mayuresh Dipak Nadkarni vs. Union of India & Ors. (Writ Petition NO. 140 of 2024) to which one of us (G. S. Kulkarni, J.) was a member, wherein in similar circumstances and considering the provisions of the Mental Healthcare Act 2017 as also the Rights of Persons with Disabilities Act 2016 and the National Trust for Welfare of Persons and Autism, Cerebral Palsy, Mental Retardation and Multiple Disability Act, 1999 as also the principles of the doctrine of parens patriae and the principles in that regard considered by the Supreme Court in Charan Lal Sahu vs. Union of India[1] and Shafin Jahan vs. Asokan K. M. & Ors.[2] as also considering the decisions as rendered by this Court, this Court had appointed the petitioner therein as the legal guardian of his father. The relevant observations as contained in the said judgment are required to be noted which read thus:- “10. It is thus quite clear that in the circumstances as in the present case, the Courts have consistently taken a view of the legal vacuum created by non-availability of adequate provisions under the Mental Health Care Act, 2017 as also under the Hindu Minority and Guardianship Act, 1956 and the other laws as discussed hereinabove. The High Courts in such cases have exercised jurisdiction under Article 226 to appoint legal guardian of a person who is suffering with serious medical disabilities also in the interest of the very survival of such person who is completely dependent on others.

11. In exercising such jurisdiction, the High Courts have invoked the doctrine of parens patriae. The doctrine of parens patriae has been described in the Black’s Law Dictionary as under: “parens patriae (par-enz pay-tree-ee or pa-tree-i). [Latin “parent of his or her country”]). 1. The State regarded as a sovereign; the state in its capacity as provider of protection to those unable to care for themselves <the attorney general acted as parens patriae in the administrative hearing>; in Roam Law, the emperor. [Cases: States <=1. C.J.S. States; 2, 16.] 2. A doctrine by which a government has standing to prosecute a lawsuit on behalf of a citizen, especially on behalf of someone who is under a legal disability to prosecute the suit. < parens partiae allowed the state to institute proceedings> The State ordinarily has no standing to sue on behalf of its citizens, unless a separate, sovereign interest will be served by the suit. - Also termed doctrine of parens patriae. []cASES: Infants <= 2; States <= 190. c.j.s. Infants;

12. The Supreme Court in Charan Lal Sahu vs. Union of India[2] has explained the doctrine of parens patriae as a right and duty of the sovereign in public interest to protect the interest of the persons with disabilities and has recognised such doctrine being applied under the Indian legal jurisprudence. In paragraph 35 of the decision, the Supreme Court observed thus: “35. There is the concept known both in this country and abroad, called parens patriae. Dr B.K Mukherjea in his “Hindu Law of Religious and Charitable Trust”, Tagore Law Lectures, Fifth Edition, at page 404, referring to the concept of parens patriae, has noted that in English law, the Crown as parens patriae is the constitutional protector of all property subject to charitable trusts, such trusts being essentially matters of public concern. Thus the position is that according to Indian concept parens patriae doctrine recognized King as the protector of all citizens and as parent. In Budhkaran Chaukhani v. Thakur Prosad Shah AIR 1942 Cal 331 the position was explained by the Calcutta High Court at page 318 of the report. The same position was reiterated by the said High Court in Banku Behary Mondal v. Banku Behary Hazra AIR 1943 Cal 203 at page 205 of the report. The position was further elaborated and explained by the Madras High Court in Medai Dalavoi T. Kumaraswami Mudaliar v. Medai Dalavoi Rajammal AIR 1957 Mad 563 at page 567 of the report. This Court also recognized the concept of parens patriae relying on the observations of Dr Mukherjea aforesaid in Ram Saroop v. S.P Sahi 1959 Supp 2 SCR 583 at pages 598 and 599. In the “Words and Phrases” Permanent Edition, Vol. 33 at page 99, it is stated that parens patriae is the inherent power and authority of a legislature to provide protection to the person and property of persons non sui juris, such as minor, insane, and incompetent persons, but the words parens patriae meaning thereby ‘the father of the country’, were applied originally to the King and are used to designate the State referring to its sovereign power of guardianship over persons under disability. (emphasis supplied) Parens patriae jurisdiction, it has been explained, is the right of the sovereign and imposes a duty on sovereign, in public interest, to protect persons under disability who have no rightful protector. The connotation of the term parens patriae differs from country to country, for instance, in England it is the King, in America it is the people, etc. The Government is within its duty to protect and to control persons under disability. Conceptually, the parens patriae theory is the obligation of the State to protect and takes into custody the rights and the privileges of its citizens for discharging its obligations. Our Constitution makes it imperative for the State to secure to all its citizens the rights guaranteed by the Constitution and where the citizens are not in a position to assert and secure their rights, the State must come into picture and protect and fight for the rights of the citizens. The Preamble to the Constitution, read with the Directive principles, articles 38, 39 and 39-a enjoin the State to take up these responsibilities. It is the protective measure to which the social welfare state is committed. It is necessary for the State to ensure the fundamental rights in conjunction with the Directive Principles of State Policy to effectively discharge its obligation and for this purpose, if necessary, to deprive some rights and privileges of the individual victims or their heirs to protect their rights better and secure these further. Reference may be made to Alfred L. Snapp & Son, Inc. v. Puerto Rico 73 L Ed 2d 995 in this connection. There it was held by the Supreme Court of the United States of America that Commonwealth of Puerto Rico have standing to sue as parens patriae to enjoin apple growers' discrimination against Puerto Rico migrant farm workers. This case illustrates in some aspect the scope of parens patriae. The Commonwealth of Puerto Rico sued in the United States District Court for the Western District of Virginia, as parens patriae for Puerto Rican migrant farmworkers, and against Virginia apple growers, to enjoin discrimination against Puerto Ricans in favour of Jamaican workers in violation of the Wagner-Peyser Act, and the Immigration and Nationality Act. The District Court dismissed the action on the ground that the Commonwealth lacked standing to sue, but the Court of Appeal for the Fourth Circuit reversed it. On certiorari, the United States Supreme Court affirmed. In the opinion by White, J., joined by Burger, C.J and Brennan, Marshall, Blackmun, Rehnquist, Stevens, and O'Connor, JJ., it was held that Puerto Rico had a claim to represent its quasi-sovereign interests in federal court at least which was as strong as that of any State, and that it had parens patriae standing to sue to secure its residents from the harmful effects of discrimination and to obtain full and equal participation in the federal employment service scheme established pursuant to the Wagner-Peyser act and the immigration and nationality act of

1952. Justice White referred to the meaning of the expression parens patriae. According to Black's Law Dictionary, 5th edn. 1979, page 10003, it means literally ‘parent of the country’ and refers traditionally to the role of the State as a sovereign and guardian of persons under legal disability. Justice White at page 1003 of the report emphasised that the parens patriae action had its roots in the common law concept of the “royal prerogative”. The royal prerogative included the right or responsibility to take care of persons who were legally unable, on account of mental incapacity, whether it proceeds from nonage, idiocy or lunacy to take proper care of themselves and their property. This prerogative of parens patriae is inherent in the supreme power of every state, whether that power is lodged in a royal person or in the legislature and is a most beneficent function. After discussing several cases Justice White observed at page 1007 of the report that in order to maintain an action, in parens patriae, the State must articulate an interest apart from the interests of particular parties, i.e the State must be more than a nominal party. The State must express a quasi-sovereign interest. Again an instructive insight can be obtained from the observations of Justice Holmes of the American Supreme Court in the case of State of Georgia v. Tennessee Copper Co. 51 L Ed 1038, which was a case involving air pollution in Georgia caused by the discharge of noxious gases from the defendant's plant in Tennesee. Justice Holmes at page 1044 of the report described the State's interest as follows: “This is a suit by a State for an injury to it in its capacity of quasi-sovereign. In that capacity the State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air. It might have to pay individuals before it could utter that word, but with it remains the final power.…... When the States by their union made the forcible abatement of outside nuisances impossible to each, they did not thereby agree to submit to whatever might be done. They did not renounce the possibility of making reasonable demands on the ground of their still remaining quasisovereign interests…”

13. In Aruna Ramachandra Shanbaug v. Union of India which was a case of a comatose lady, the Supreme Court invoking the doctrine of ex debito justitiae and the parens patriae doctrine observed thus:- “38. From the above, it is clearly deducible that when the High Court exercises jurisdiction under Article 226 of the Constitution of India, it does so to further the cause of justice. To provide justice or discharge ex debito justiciae is the raison d’ etre of the courts. The Latin expression ex debito justitiae literallyh means a debt of justice; on account of justice; a claim, the refusal of which would involve an injustice, and therefore, one which justice owes it to the claimant to recognize and allow. The doctrine of ex debito justiciae is well established and requires no further elaboration. In addition to Article 226 of the Constitution, such power of the High Court is traceable to section 151 of the Civil Procedure Code, 1908 and section 482 of the Code of Criminal Procedure, 1973.”

130. In our opinion, in the case of an incompetent person who is unable to take a decision whether to withdraw life support or not, it is the Court alone, as parens patriae, which ultimately must take this decision, though, no doubt, the views of the near relatives, next friend and doctors must be given due weight.”

14. We may also refer to another decision of a recent origin in Shafin Jahan vs. Asokan K.M. & Ors.[4] in which the Supreme Court elaborately discussed the principles of parens patriae. The Supreme Court referring to the decisions of Charan Lal Sahu (supra), Anuj Garg vs. Hotel Association of India[5], Aruna Ramachandra Shanbaug (supra) and State of Kerala vs. N.M. Thomas[6], observed that Constitutional Courts in this country would exercise parens patriae jurisdiction inter alia in matters of child custody and in exceptional situation by setting out illustrations, in case of persons who are mentally ill. The relevant observations of the Supreme Court in this context are required to be noted, which reads thus: “38. In Aruna Ramachandra Shanbaug v. Union of India (2011) 4 SCC 454, the Court, after dealing with the decision in State of Kerala v. N.M. Thomas (1976) 2 SCC 310 wherein it has been stated by Mathew, J. that “the Court also is ‘State’ within the meaning of Article 12 (of the Constitution)...”, opined: (Aruna Shanbaug case, SCC p. 521, para 130) “130. In our opinion, in the case of an incompetent person who is unable to take a decision whether to withdraw life support or not, it is the Court alone, as parens patriae, which ultimately must take this decision, though, no doubt, the views of the near relatives, next friend and doctors must be given due weight.”

39. 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. We may like to give some examples. 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. On certain other occasions, when a girl who is not a major has eloped with a person and she is produced at the behest of habeas corpus filed by her parents and she expresses fear of life in the custody of her parents, the court may exercise the jurisdiction to send her to an appropriate home meant to give shelter to women where her interest can be best taken care of till she becomes a major.

40. In Heller v. Doe 509 US 312 (1993), Justice Kennedy, speaking for the U.S. Supreme Court, observed: “… the State has a legitimate interest under its Parens Patriae powers in providing care to its citizens who are unable ….. to care for themselves.”

41. The Supreme Court of Canada in E. v. Eve [1986] 2 SCR 3888 observed thus with regard to the doctrine of Parens Patriae: (SCC OnLine Can SC paras 75-77) The Parens Patriae jurisdiction for the care of the mentally incompetent is vested in the provincial superior courts. Its exercise is founded on necessity. The need to act for the protection of those who cannot care for themselves. The jurisdiction is broad. Its scope cannot be defined. It applies to many and varied situations, and a court can act not only if injury has occurred but also if it is apprehended. The jurisdiction is carefully guarded and the courts will not assume that it has been removed by legislation. While the scope of the parens partiae jurisdiction is unlimited, the jurisdiction must nonetheless be exercised in accordance with its underlying principle. The discretion given under this jurisdiction is to be exercised for the benefit of the person is need of protection and not for the benefit of others. It must at all times be exercised with great caution, a caution that must increase with the seriousness of the matter. This is particularly so in cases where a court might be tempted to act because failure to act would risk imposing an obviously heavy burden on another person. ……