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2023 DIGILAW 328 (KER)

Santha Kumari, D/o. Savithri v. State Of Kerala

2023-03-31

ALEXANDER THOMAS, MOHAMMED NIAS C.P.

body2023
ORDER : ALEXANDER THOMAS, J. Heard Sri. R.Krishna Raj learned Advocate instructed by Smt. E.S.Soni, learned counsel appearing for the petitioner, Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for the respondents 1 to 3, Sri, Santhosh P.Poduval learned Standing Counsel appearing for the Thrikkoor Grama Panchayat appearing for 4th respondent. Though respondents 5 and 6 had been duly served with notice, the said parties have not entered appearance through counsel, however, we have interacted with the representatives of 5th respondent. 2. On 23.3.2023, we have passed an order and paragraph 2 thereof reads as follows:- “2. Learned Prosecutor will get instructions in the matter, more particularly on the matters relating to the issuance of Ext.P4 proceedings dated 07.01.2015 which is said to be the proceedings relating to the appointment of a legal guardian for the autistic ward in terms of the provisions contained in Sec.14 of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999. The District Collector, Thrissur, will ensure that effective and proper enquiry is effected either by him personally or by an officer authorized by him, not below the rank of Sub Collector/RDO/Deputy Collector as to the present living condition of the alleged detenue (Ms.S.Priya, who is the autistic ward, daughter of the petitioner), whether she was being properly taken care of by R6, when the autistic ward was residing with R6. 3. The Official respondents no. 1 to 3 will ensure that a video conferencing facility is arranged with R5 to enable this Court to directly interact with the autistic ward (alleged detenue) on the next posting day. Petitioner will also be present to attend the above video conferencing session in the premises of R5 on the above day. 4. Counsel for the petitioner will also ensure that a legible copy of Ext.P4 dated 07.01.2015 is made available for the perusal of this Court in the next posting date. List on 31.03.2023.” 3. Today, the learned Public Prosecutor has submitted on instructions from the Sub Collector, Thrissur, as per the letter dated 30.3.2023. The Health report on the autistic ward of the petitioner has been described therein as follows:- “As per reference (1), the patient has been treated at Jubilee Mission Hospital, Thrissur on 20/3/2023 under supervision of doctors Dr Sanoj P Paulose and Dr Shyama. The Health report on the autistic ward of the petitioner has been described therein as follows:- “As per reference (1), the patient has been treated at Jubilee Mission Hospital, Thrissur on 20/3/2023 under supervision of doctors Dr Sanoj P Paulose and Dr Shyama. A consultation was also held by Dr Shaju George as consultant psychiatrist (outside hospital) on 18/3/2023. Daily medicine was prescribed as follows: Sodium Valproate, Shelcal, Vitamin D3, Lorazepam, Opec. The patient was diagnosed with extreme bed sores in upper part of buttocks and a black fungal infection in the back part of the body. Multiple Fractures were evident at the hip as per doctor's verbal claim and analysis of X- ray report. There is a plaster-cast covering from toe to shin bone area in both the legs. The patient is in bedridden stage and cannot move at all. The patient needs urgent medical attention. Priya S was admitted to the Grace Home Charitable Society on 2/3/2023 at 11 PM. As part of enquiry, Priya S was visited in that institution on 28/3/23 by this office. Priya S had responded to some questions asked either by facial expressions or verbal cues - specially to questions like name of herself, father i.e. Salim, mother and sisters. She also expressed her preferences in food by nodding her head and eye, facial movements. While her condition is bed-ridden and in extremely bad situation, her bed sores were well-dressed, and the room was neat and clean and odourless. It was informed that her diapers were changed regularly and special efforts were undertaken to ensure cleanliness and comfort of Priya S”. 4. Further, the said letter of the RDO also contains the report of the police authorities and the same reads as follows:- “As per reference (4), there was continuous fighting and issues with stepmother i.e. Shobhna, stepmother's sister and the father i.e. Salim regarding property issue. The step mother has been living separately from her husband and Priya S, and living with her sister Leela since the last 9 months. Food was provided to Salim and Priya S by the step-mother's elder brother Ananta for more than last 6 months. Shobhna did not enter into the property regularly. The step mother has been living separately from her husband and Priya S, and living with her sister Leela since the last 9 months. Food was provided to Salim and Priya S by the step-mother's elder brother Ananta for more than last 6 months. Shobhna did not enter into the property regularly. As per police report, stepmother i.e. Shobhna and her two daughters had not visited Priya S even after police suggestion for them to visit the father i.e. Salim, on suspicion of his adverse health and possible death. Even after the death of Salim, step mother was not forthcoming to help Priya S, despite suggestion by SHO and cited that due to shock she could not take care of her. Then Step-mother has requested the legal guardianship of Priya S in the police station.” 5. Further, the learned Public Prosecutor would submit that the petitioner’s husband (father of the autistic ward) died on 2.3.2023. Further that, Ext.P4 is the proceedings of the competent authority under Section 14 of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (Central Act 44 of 1999) (hereinafter for short ‘The Act’) , whereby the husband of the petitioner has been appointed as the legal guardian to the autistic ward. Further that, the note given on page 1 of Ext.P4 order mentioned inter alia that alternate guardian is 6th respondent herein, who appears to be the alleged second wife of the autistic ward’s father who is also stated to be the step mother of the autistic ward. However, the learned Prosecutor pointed out that in Clause 6 of Ext.P4 given on page 2 thereof, the Local Level Committee can select an alternate guardian, so that if the legal guardian is no more, the alternate guardian can be formally appointed as Legal Guardian, even suo-moto, by the LLC without any delay. However, the alternate guardian cannot function as legal guardian until the formal appointment of the legal guardian by the LLC etc. Hence it appears that, since the legal guardian is no more, steps will have to be taken for the appointment of legal guardian of the ward by the competent authority (Local Level Committee) under the chairpersonship of District Collector concerned as envisaged in Section 14 of the above Act. 6. Hence it appears that, since the legal guardian is no more, steps will have to be taken for the appointment of legal guardian of the ward by the competent authority (Local Level Committee) under the chairpersonship of District Collector concerned as envisaged in Section 14 of the above Act. 6. In the meanwhile, petitioner’s counsel would pray that temporary custody and care of the autistic ward will be granted to her since she is living in Kollam and she and her other two married daughters can take care of the autistic ward. On interaction, we are convinced that the autistic ward is now well taken care of by the 5th respondent (Grace Home Charitable Society, Kottekad, Kuttur, Thrissur). From the submissions of the parties, we are given to understand that since the autistic ward was left without care after the death of his father, the members of the local Panchayat had to intervene and it is through their initiative that the ward was placed in the care and management of the 5th respondent Grace Home Charitable Society which is run by nuns of the Catholic Religious order of the Society of Christhu Dasin. On our interaction, the nun/sister of 5th respondent who is in charge of the autistic ward told us that they are prepared to take care of the autistic ward, subject to any decision that may be taken by the Local Level Committee under Section 14 of the above Act and subject to orders of this Court. On being queried as to whether they have the necessary financial wherewithal to take care of the needs of the autistic ward, their response is in the affirmative. As of now, we are prima facie convinced that it may not be in the interest and welfare of the autistic ward to shift her from the 5th respondent Society which is based at Thrissur to the residence of the petitioner at Kollam. Moreover it appears that so far the 6th respondent has not raised any claim. Further, the case history mentioned above shows that the autistic ward has suffered multiple fractures at the hip, and she is in complete bed ridden stage, and it is medically not advisable that to shift her now to a long distance. The nun/sister attached to 5th respondent also told us that the autistic ward require delicate care and attention which they are prepared to give. 7. The nun/sister attached to 5th respondent also told us that the autistic ward require delicate care and attention which they are prepared to give. 7. Further, faced with the situation, Sri. R.Krishna Raj, learned counsel for the petitioner would submit that now legally there is necessity to appoint a legal guardian for the autistic ward in terms of Section 14 of the Act and that the petitioner can be advised to file a formal application to the Local Level Committee constituted under Section 13 of the above National Trust Act and that a decision will have to be taken by the Local Level Committee under the chairpersonship of District Collector, Thrissur regarding the claim for appointment of the legal guardian of the autistic ward in terms of Section 14 thereof after conducting necessary enquiries etc., The aforesaid submission of the learned counsel for the petitioner is certainly legally tenable. Hence, the petitioner would further submits that she would immediately file the requisite application under Section 14 before the LLC under the chairpersonship of the District Collector, Thrissur without any further delay to appoint her as the legal guardian of the autistic ward. As and when the application is filed, the Local Level Committee will ensure that appropriate enquiries are conducted to ascertain relevant facts in the matter and also the suitability, competency and financial capacity of the applicant, for being appointed as the legal guardian. Further, affected parties also will have to be heard. The Local Level Committee may issue notice to the interested persons like the 4th respondent Panchayat and also to the 6th respondent. The versions of 5th respondent Grace Home Charitable Society will also be heard. The District Collector will ensure that effective enquiries be conducted as to how the autistic child and father were living separately from the 6th respondent and whether the 6th respondent has any claim for the care and custody of the child, her antecedents and prior conduct etc. Decision on the matter regarding the appointment of the legal guardian of the autistic ward in terms of Section 14 of the Act may be rendered by the Local Level Committee under the chairpersonship of the District Collector, Thrissur without much delay preferably, within a period of two months from the date of receipt of a copy of the application. Decision on the matter regarding the appointment of the legal guardian of the autistic ward in terms of Section 14 of the Act may be rendered by the Local Level Committee under the chairpersonship of the District Collector, Thrissur without much delay preferably, within a period of two months from the date of receipt of a copy of the application. The decision of the LLC on the above aspect may be duly appraised to this Court on the next posting day. In the meanwhile, it is also ordered that the Social Justice Department may also give necessary assistance to the 5th respondent charitable Society for taking care of the needs of the autistic ward and if necessary, any financial assistance that should also be considered in terms of any schemes being administered by that Department. Further it is ordered that pending decision by the LLC as above, the care and custody of the child will remain with the 5th respondent charitable Society, but subject to any inter interlocutory or other directions that may be given by the District Collector, based on any reports of the Social Justice Department or based on any requests of 4th respondent Panchayat. Further, the 3rd respondent Social Justice Department, the 4th respondent Grama Panchayat and 5th respondent Charitable Society will give necessary permission to the petitioner to interact with the autistic ward on any days of her choice without causing any serious disturbance to the functioning of 5th respondent. We are told by the nun attached to the 5th respondent society that timings between 11 a.m. to 5 p.m. would ordinarily be convenient. The petitioner may ensure that visit may be regulated accordingly without creating any hardships or inconvenience to the 5th respondent Society or to the autistic ward. We are told that the petitioner has been separated from her autistic ward aged 38 years for the last 28 years. 7. The nun attached to the 5th respondent Society has apprised that 6th respondent has been now making requests for permission to interact with the autistic ward and as to whether permission can be granted to her. We make it clear that 6th respondent need be permitted by the 5th respondent to interact with the autistic ward only if permission is secured by 6th respondent in that regard from the District Collector, Thrissur. 8. We make it clear that 6th respondent need be permitted by the 5th respondent to interact with the autistic ward only if permission is secured by 6th respondent in that regard from the District Collector, Thrissur. 8. The learned counsel for the petitioner will ensure that a legible and readable copy of Ext.P4 is produced along with a memo of the counsel well before the next posting date and copy thereof shall be furnished to the learned Public Prosecutor and to the learned Standing counsel for the 4th respondent Panchayat. Secretary to the Office of the Advocate General will forward a copy of this order to the District Collector, Thrissur and the District Social Justice Department, Thrissur for necessary information and further action. List the case on 5.6.2023. Handover to both sides.