Kavita Kharbanda and Others v. Government of NCT of Delhi and Another

5. Mr. Ashish Dixit, learned CGSC is directed to coordinate with the Medical Superintendent, Safdarjung Hospital, for doing the needful.

6. The expenditure for the aforesaid exercise shall be borne by the petitioner.

7. Let the report of the Medical Board be filed within a period of three weeks, thereafter.

8. List on 23.09.2025.”

12. In compliance of the aforesaid, vide a notice dated 04.09.2025, a four-member Medical Board was directed to be constituted by the respondent no.3/Ministry of Health and Family Welfare, Government of India. It was further directed that the meeting of the Medical Board shall be held on 09.09.2025 at the residence of Mr. Surinder Kharbanda. The said notice reads as under: -

13. Pursuant thereto, a four-member medical board, chaired by Dr. Vandana Chakravarty, Senior CMO (SAG), VMMC and Safdarjung Hospital, Delhi has submitted an opinion/report dated 15.09.2025. The said reads as under: -

14. Learned counsel on behalf of the petitioners submits that the aforementioned medical opinion/report submitted by the Medical Board unambiguously states that Mr. Surinder Kharbanda is neither in a state where he can respond or express his emotion to the petitioners, nor is he oriented to the time, place and persons.

15. Reliance is placed upon a judgment rendered by a coordinate Bench of this Court in N.A. and Ors. vs Govt. of NCT of Delhi and Ors, MANU/DE/0035/2023, wherein this Court, considering the facts and report submitted by the Medical Board in that case, took note of the lacuna in the legal position as regards appointment of a guardian for an individual who is in a vegetative state; the Court appointed petitioners therein as the legal guardian of one Mr. K.A, who was in a ‘comatose state’.

16. It is further pointed out that the Kerela High Court in Shobha Gopalakrishnan and Ors. vs. State of Kerela and Ors. 2019 SCC OnLine Ker 739 while invoking parens patriae jurisdiction of the Court observed that no remedy is envisaged under any existing statutes in India as regards the appointment of a legal guardian for an individual in ‘comatose state’.

17. Learned counsel for the petitioners also submits that the petitioners are the only legal heirs of Mr. Surinder Kharbanda and petitioners nos. 2 and 3 (i.e. sons of Mr. Surinder Kharbanda) have no objection with appointment of petitioner no.1 (i.e. wife of Mr. Surinder Kharbanda), as the legal guardian of Mr. Surinder Kharbanda.

18. Learned counsel on behalf of the respondent no.3/ Ministry of Health and Family Welfare, Government of India submits that in Shafin Jahan vs. K.M Ashokan (2018) 16 SCC 368, the Supreme Court has expanded the horizon and applicability of the doctrine of parens patriae by recognising the power of Constitutional Court/s to invoke and exercise the said jurisdiction in exceptional circumstances.

19. In this regard, the learned counsel for respondent no.3 has also brought to the notice of this Court various precedents, wherein in similarly situated circumstances, legal guardianship of an individual in ‘comatose/ vegetative state’ was granted to their spouse or legal heirs. The same are as follows: i. The Madras High Court in Sairabanu Mohammed. Rafi vs. State of Tamil Nadu, MANU/TN/0580/2016, permitted the wife of an individual lying in comatose state to manage and sell immovable properties belonging to her husband, subject to the same, if required, being disputed by the legal heirs of her husband. ii. In Philomena Leo Lobo vs. Union of India, 2017 SCC Bom 8836, the Bombay High Court, considering the medical reports permitted the wife to deal with the financial affairs of her husband, who was lying in a ‘comatose state’. iii. The Kerala High Court in Shobha Gopalkrishnan (supra) observing that no remedy is available under any existing law in India as regards appointment of guardian for person lying in ‘comatose state’, invoked its parens partie jurisdiction and inter-alia, issued certain measures/guidelines under Article 226 of the Constitution of India in regards thereof. iv. This Court in Vandana Tyagi vs. Govt. of NCT of Delhi, 2020: DHC:44 reiterated the aforesaid guidelines passed by the Kerela High Court in Shobha Gopalkrishnan (supra) and appointed the children of an individual in ‘comatose state’ as legal guardian to utilize assets thereof for her welfare and medical treatment. v. In Uma Mittal vs. Union of India, 2020 SCC OnLine All 777, the Allahabad High Court inter-alia by placing substantial reliance upon law laid down by the Supreme Court in Shafin Jahan (supra) granted wife of an individual in ‘comatose state’ his guardianship for protecting his business interest. vi. The Bombay High Court in Vijay Ramchandra Salgaonkar vs. State of Maharashtra, 2021 SCC OnLine Bom 14114 appointed husband of a woman with vascular dementia, as her Guardian, along with designating the Member Secretary of the Maharashtra State Legal Service Authority either himself or through a designated official to monitor the functioning of the guardian and submit monthly report in regards thereof. vii. This Court in Satula Devi vs. Govt. of NCT of Delhi 2021 SCC OnLine Del 4856 appointed a guardian committee consisting of wife, son and brother as nominated representatives under the Mental Healthcare Act, 2017. The said committee was allowed to manage all affairs of the patient, including medical treatment, healthcare decision etc. of the patient.

20. This Court has taken note of the various precedents cited by the parties, wherein, the parens patriae jurisdiction has been invoked, and a legal heir/spouse of the individual lying in “comatose/vegetative state” has been appointed as a legal guardian for management of the assets.

21. In N.A and Ors. vs Govt. of NCT of Delhi and Ors (supra), a coordinate Bench of this Court addressed the issue at length by observing as under: -

13. This Court notices that such persons who are in a vegetative state are unable to take decisions for themselves, however, there is no mechanism provided in law under the RPWD Act, 2016 or the Mental Healthcare Act, 2017 for appointment of guardians to take care of such persons and their assets. This legal vacuum was considered in detail by this Court in the judgment dated 29th October, 2021 passed in W.P. (C) 1271/2020 titled S.D. vs.

GNCTD & Ors. where this Court had exercised parens patriae jurisdiction while constituting a guardianship committee

same could be determined by means of advance directives and in the absence of advance directives, facts and circumstances which point towards the wishes/intent of the concerned person. Thus, the “wills and preferences” of the mentally ill person have to be considered by the Court in deciding the manner in which care is to be given.

217. As noted in the concerns raised during the Parliamentary debates concerning the MHA-2017 and also from the lack of designated authorities explained above, there are gaps unaddressed by the legislations. The social fabric of family structures in India ought to be considered. In the same vein, the Court notes that the MHA-1987 had laid down certain standards and factors to be considered while determining the “best interest” of the mentally ill person

218. On the issue of Maintainability therefore the following factors are noted:. However, under RPWD-2016 and the MHA-2017, no guidance exists as to what would constitute the “wills and preferences” of the person. Under Section 14 of RPWD-2016, limited guardianship is for a specific period, a specific decision and a specific situation, in accordance with the will of the PwD. Even in the proviso to Section 14(1), the factors to be considered for providing total support are conspicuously absent. The MHA-2017 has no provision in respect of management of financial affairs, appointment of guardians or the manner in which the moveable/immovable property of the mentally ill person is to be taken care of. Thus there is a clear statutory vacuum.

(i) The RPWD-2016, the MHA-2017 or the RPWD (Delhi)

(ii) Providing ‘total support’ is contemplated under Section 14

(iii) However, the power under Section 14 of RPWD2016 is to be exercised by the District Court or the Designated Authority. Currently, under the RPWD (Delhi) Rules-2018, no Designated Authority has been appointed under Section 14.

(iv) Under the proviso to Section 14(1) of RPWD, 2016, there is no guidance as to the factors to be considered for providing total support.

(v) The various institutions and establishments contemplated under RPWD-2016 do not appear to be fully operational.

(vi) There is a clear legal vacuum in respect of providing total support to a person with disability who requires such support. No precedent has been cited either under the RPWD-2016 or MHA-2017 in this regard.

(vii) There are several gaps and concerns in the two legislations, i.e., RPWD-2016 and MHA-2017. All the required institutions under these statutes are not fully set up and functional.

(viii) In the present case, the condition of Mr. DMP is such that the Court has to take a comprehensive view under both legislations on two aspects: (a) In respect of his medical care and treatment; and (b) For management of his financial affairs, both movable and immovable assets which are valued at more than Rs. 3000 crores.

(ix) Above all, this Court is exercising jurisdiction under

Article 226/227 of the Constitution of India, which is a jurisdiction conferred by the Constitution of India and in various judgments of the ld. Supreme Court, the parents patriae jurisdiction is clearly vested in Constitutional Courts. The present case falls in the category of exceptional circumstances, as held in Shafin Jahan (supra). 220.. In any event, this Court is of the opinion that the solemn nature of the said jurisdiction having been repeatedly recognised by the Supreme Court, the question as to which Court has to exercise it and in what manner is one of mere procedure. So long as the “wills and preferences” of the mentally ill person and the other factors set out in the rules are borne in mind by the Court exercising parens patriae jurisdiction, it cannot be held that the High Court exercising power under Article 226 is denuded of power in view of the provisions of the RPWD-2016 Act or the Rules thereunder.

221. As discussed earlier, under Section 14(4) of the MHA-2017, the nominated representative can be any person who may have been chosen by an advance directive. In the absence of an advance directive, the nominated representative can be a relative. It is only if a relative is not available or is not willing to be the nominated representative, that in the order of preference, a care-giver or thereafter a suitable person can be appointed. A relative as defined under the MHA-2017, as extracted above, as a person related to the person with mental illness by blood, marriage or adoption. On the other hand, the RPWD-2016 does not define who can be a guardian. While some institutional mechanisms are contemplated under the RPWD-2016, the existence and the viability of such institutions has not been addressed before this Court during the course of submissions by either party. Under the RPWD (Delhi) Rules- 2018, the preference of merit for appointment as a limited guardian is contained in Rule 7(6). The preference therein is to blood relatives, adult children, Thus, both, while exercising jurisdiction under Article 226 and even in terms of the proviso to Section 14(1) of the RPWD-2016 and under the MHA-2017, this Court has the power to entertain the present petition seeking appointment of a guardian.

(ii) Who can be the guardian/nominated representative? (Legal Position) siblings, spouse, and it is only thereafter that care givers or other personalities can be considered. There, the common principle seems to be preference to relatives over caregivers or other unrelated people.

222. In the opinion of this Court, the nominated representative or total support arrangement or guardian need not always be an individual. Guardianship could be exercised by even a guardianship committee, depending upon the facts, as long as such a committee would be an appropriate measure for enabling the person to exercise his legal capacity, as per his will and preferences. If the mentally ill person requires complex medical decisions to be taken, has an expanse of moveable/immovable assets, and requires management of complex financial affairs, and the Court is of the opinion that this entire function cannot be performed by one individual, a committee can be appointed.”

14. Subsequent to the decision in S.D. v. GNCTD (Supra) the Bombay High Court in W.P. (C) 1266/2021 titled Lubina Mohamed Agarwal & Ors. v. Union of India & Ors. decided on 13th December, 2021 has also considered the same issue and has observed as under:

vegetative state. In paragraph 17, the Division Bench said:

14. This and other decisions were considered in Vijay Ramchandra Salgaonkar v the State, a judgment of 17th July 2021 by a Bench of which one of us (Madhav J Jamdar J) was a member. The Petitioner sought an order appointing himself as the guardian of his wife. She too had dementia (apart from other ailments). The Bench reviewed some of the case law on the subject and in paragraphs 15 to 16 held:

of flat.”

15. We also chose to reproduce paragraphs 17.[1] to 17.[3] of the decision in Salgaonkar below: “17.[1] In that case it was held that when a person is in coma or in a comatose condition or in a vegetative state, it cannot be construed that such a person is a physically challenged person or a mentally challenged person as is understood under the relevant statutes. Nor such a person can be construed to be a minor for the purpose of appointment of guardian. In the circumstances it was held that statutes like the Guardians and Wards Act, 1890, Mental Healthcare Act, 2017 etc. would not applicable to persons in a comatose condition or in a vegetative state. It was also held that there is no legislation in India relating to appointment of guardians to patients lying in comatose or vegetative state. 17.[2] On the crucial issue as to relief that may be granted to the petitioner by invoking writ jurisdiction under Article 226 of the Constitution of India, it was noticed that there is no statutory provision governing the field relating to appointment of guardian of a person lying in a comatose condition or in a vegetative state. This Court referred to and deliberated upon the doctrine of parens patriae whereafter it was held that in a case like this it is the court alone as the parens patriae which must take the ultimate decision though views of the near relatives, next friend and doctors must be given due weightage. After referring to decisions of various High Courts including our High Court, this Court examined the width and plenitude of the power of the High Courts under Article 226 of the Constitution of India and also relied upon the decision of the Supreme Court in Aruna Ramchadra Shanbaug Vs. Union of India, (2011) 4 SCC 454, and held that when the High Court exercises jurisdiction under Article 226 of the Constitution of India, it does so to further the cause of justice. It was held as under: “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 literally 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.” 17.[3] While acceding to the prayer of the petitioner in that case, this Court also sounded a note of caution that there should be some kind of monitoring of the functioning of the petitioner as guardian to ensure that guardianship was being used for the benefit of the person who was in a vegetative state observing that such monitoring may be carried out through the forum of Maharashtra State Legal Services Authority constituted under the Legal Services Authorities Act, 1987.”

16. Sitting singly one of us (GS Patel J) had a similar application though in a suit on the Original Side in Nitin Thakker and Another v State of Maharashtra and Ors. By an order dated 13th August 2020, the Court appointed a Senior Advocate of this Court as the guardian of solicitor who had no family at all but was himself suffering from dementia. In paragraph 20, the decision said:

17. This was also considered in Rajni Hariom Sharma.

18. By a previous order dated 12th August 2021, Kamar was to be examined by specialist at the JJ Group of Hospitals. That has been done. We have the reports before us today. She was examined on 18th August

2021. She was found to be conscious but minimally cooperative and communicative. She was bed-ridden. Her attention was minimal. She had a forward attention of span of two and a nil backward attention span. She was hard of hearing and could follow only very simple commands, not complex instructions. Her speech was incoherent and reduced in tone and output. Her concepts and judgments were impaired, as was her memory. The conclusion was that she suffers from advanced dementia, needs assistance in her day-to-day activities and will require further investigation and monitoring. The reports states that the Indian Disability Assessment Scale Score was 20, suggestive of profound disability.

19. In these circumstances, we are inclined to grant the relief Mr Khambata seeks, but subject to certain safeguards. To begin with, we make it clear that we are not disposing of this Petition. It is also not our intention that the directions that follow are either rigid or constitute a precedent of any kind. Given the state of the law, which we have briefly set out above, each case will need to be addressed on its own merits. Indeed, we would suggest that in matters like these, no two cases will be exactly alike ever. Each case will require a differently calibrated response from the Court. We also intend to monitor Kumar’s condition and will list the matter periodically for updates. The present order may then continued or modified as Required.”

22. While reiterating the aforesaid view, a Division Bench of the Kerela High Court in Shobha Gopalkrishnan (supra), taking note of the vacuum in the extant legal regime as regards appointment of legal guardian for an individual in comatose/vegetative, laid down certain norms/procedures to address the said issue. The relevant portion of the said judgment reads as under:-

Multiple Disabilities Act, 1999 (National Trust Act, 1999) with reference to the U.N. Convention 2006. It is for the Government to consider and take appropriate steps in this regard, as it is never for the Court to encroach into the forbidden field. This Court would only like to make it clear that, in so far as the case of a patient lying in ‘comatose state’ is not covered by any of the statutes, (as discussed above), for appointment of a Guardian, the petitioners are justified in approaching this court seeking to invoke the power under Article 226 of the Constitution of India. It is declared accordingly.

43. Coming to the incidental aspects; since no specific provision is available in any Statutes to deal with the procedure for such appointment of Guardian to a victim lying in ‘comatose state’, it is necessary to stipulate some ‘Guidelines’, based on the inputs gathered by this Court from different corners, as suggested by the learned counsel for the petitioners, the learned Government Pleader and also by the learned Amicus Curiae, till the field is taken over by proper legislation in this regard. This Court finds it appropriate to fix the following norms/guidelines as a temporary measure: i) petitioner/s seeking for appointment of Guardian to a person lying in comatose state shall disclose the particulars of the property, both movable and immovable, owned and possessed by the patient lying in comatose state. ii) The condition of the person lying in comatose state shall be got ascertained by causing him to be examined by a duly constituted Medical Board, of whom one shall definitely be a qualified Neurologist. iii) A simultaneous visit of the person lying in comatose state, at his residence, shall be caused to be made through the Revenue authorities, not below the rank of a Tahsildar and a report shall be procured as to all the relevant facts and figures, including the particulars of the close relatives, their financial conditions and such other aspects. iv) The person seeking appointment as Guardian of a person lying in comatose state shall be a close relative (spouse or children) and all the persons to be classified as legal heirs in the due course shall be in the party array. In the absence of the suitable close relative, a public official such as ‘Social Welfare officer’ can be sought to be appointed as a Guardian to the person lying in ‘comatose state’. v) The person applying for appointment as Guardian shall be one who is legally competent to be appointed as a Guardian. vi) The appointment of a Guardian as above shall only be in respect of the specific properties and bank accounts/such other properties of the person lying in comatose state; to be indicated in the order appointing the Guardian and the Guardian so appointed shall act always in the best interest of the person lying in ‘comatose state’. vii) The person appointed as Guardian shall file periodical reports in every six months before the Registrar General of this Court, which shall contain the particulars of all transactions taken by the Guardian in respect of the person and property of the patient in comatose state; besides showing the utilization of the funds received and spent by him/her. viii) The Registrar General shall cause to maintain a separate Register with regard to appointment of Guardian to persons lying in ‘comatose state’ and adequate provision to keep the Reports filed by the Guardian appointed by this Court. ix) It is open for this Court to appoint a person as Guardian to the person lying in comatose state, either temporarily or for a specified period or permanently, as found to be appropriate. x) If there is any misuse of power or misappropriation of funds or non-extension of requisite care and protection or support with regard to the treatment and other requirements of the person lying in comatose state, it is open to bring up the matter for further consideration of this Court to re-open and revoke the power, to take appropriate action against the person concerned, who was appointed as the Guardian and also to appoint another person/public authority/Social Welfare Officer (whose official status is equal to the post of District Probation Officer) as the Guardian. xi) It shall be for the Guardian appointed by the Court to meet the obligations/duties similar to those as described under Section 15 of the National Trust Act and to maintain and submit the accounts similar to those contained in Section 16. xii) The Guardian so appointed shall bring the appointment to the notice of the Social Welfare Officer having jurisdiction in the place of residence, along with a copy of the verdict appointing him as Guardian, enabling the Social Welfare Officer of the area to visit the person lying in ‘comatose state’ at random and to submit a report, if so necessitated, calling for further action/interference of this Court. xiii) The transactions in respect of the property of the person lying in ‘comatose state’, by the Guardian, shall be strictly in accordance with the relevant provisions of law. If the Guardian appointed is found to be abusing the power or neglects or acts contrary to the best interest of the person lying in ‘comatose state’, any relative or next friend may apply to this Court for removal of such Guardian. xiv) The Guardian appointed shall seek and obtain specific permission from this Court, if he/she intends to transfer the person lying in comatose state from the jurisdiction of this Court to another State or Country, whether it be for availing better treatment or otherwise.”

23. A perusal of the medical opinion dated 15.09.2025 reveals that Mr. Surinder Kharbanda suffers from “Recurrent Hemorrhagic stroke with Chronic Liver Disease (CLD) with epilepsy (Post Stroke) with spastic quadriparesis with Tracheostomy in situ with Ryels Tube (RT) and Foleys Catheter in situ”. The Medical Board has opined that although Mr. Surinder Kharbanda is conscious, he is unable to respond to any verbal command and lacks orientation of the time, place or person. The said opinion unequivocally establishes that unfortunately Mr. Surinder Kharbanda is in no state to function independently or make decisions on his own. Thus, for welfare of Mr. Surinder Kharbanda appointment of a legal guardian is inevitably warranted.

24. It is also an admitted position that Mr. Surinder Kharbanda is survived by his wife i.e. petitioner no.1 and two sons i.e., petitioner nos. 2 and 3. It is stated, on instructions that there are no legal heirs besides the petitioners. Further, the petitioner nos.[2] and 3 have no objection in appointment of petitioner no.1 as the legal guardian of Mr. Surinder Kharbanda.[1]

5. That it may be pointed that in the aforesaid decision of N.A. (supra), the Guardianship Committee mentioned therein comprised of only the close family members of Ms. K.A., whereas in the present case, it is the Petitioners only who are seeking appointment of Petitioner No.1 as the legal guardian, and allow her to deal with all the moveable and immoveable properties of Shri Surinder Kharbanda. It is pertinent to mention here that Petitioners are the only legal heirs of Shri Surinder Kharbanda, hence, there is no objection on behalf of Petitioners No.2 and 3 (who are sons of Petitioner No.1) for appointment or their mother, i.e. Petitioner No.1 as the legal guardian of Shri Surinder Kharbanda. The present case completely falls under the parens patriae jurisdiction vested in this Hon’ble Court, and the same is evident from the Medical Report dated 09.09.2025, which reflects that Shri Surinder Kharbanda is in a vegetative state. The details of the movable and immovable properties of Shri Surinder Kharbanda are provided below:….(Short note on behalf of the petitioners dated 07.10.2025)

25. In the aforesaid circumstances, considering the aforesaid judicial precedents and taking into account the medical opinion dated 15.09.2025, the following directions are issued: i. Mrs. Kavita Kharbanda/petitioner no.1 (wife of Mr. Surinder Kharbanda) is appointed as the legal guardian of Mr. Surinder Kharbanda. ii. Mrs. Kavita Kharbanda shall have the right to take decisions in regard to, but not limited to, the medical treatment, caretaking, daily expenditures, finances, management / dealing with assets of Mr. Surinder Kharbanda. iii. Mrs. Kavita Kharbanda shall be a liberty to deal with any moveable and immovable assets of Mr. Surinder Kharbanda towards his medical and daily expenditures. Specifically, the petitioner no.1 is permitted to handle the affairs as regards the following assets: a. 1/8th b. 1/4 share of Mr. Surinder Kharbanda in property bearing no. B-1/14, Model Town-II, Delhi-110009; th c. Public Provident Fund bearing Account No.0090/PPF 625, maintained with Model Town Branch, Bank or Baroda; share of Mr. Surinder Kharbanda in House No. 389, Bhai Parmanand Colony, Delhi; d. Bank Account bearing No. 0247153000372 maintained with Gujranwala Town Branch, IDFC Bank; e. LIC Policy bearing No. 127440591; and f. Floating Rate Savings Bond bearing Account No. TBH51060278516. iv. Mrs. Kavita Kharbanda shall continue to act as a representative of Mr. Surinder Kharbanda in pending litigation, inter-alia, proceedings concerning suit bearing CS No. 11560/16/10 for partition, mandatory and permanent injunction; and any other proceedings/litigation involving the rights of Mr. Surinder Kharbanda.

26. The present petition is disposed of in the above terms.

SACHIN DATTA, J NOVEMBER 18, 2025