Incapable Adult Has Every Right To Be Under Care Of Family And Both Parents: Kerala High Court

The Kerala High Court said that the incapable adult has every right to be under the care of family and both parents.

The Court was dealing with writ petitions filed by the mother of an incapable adult who was suffering from autism spectrum disorder. She sought an issuance of writ of habeas to produce the said adult before the court and alleged that the adult was detained in illegal custody of his father against his wish and will in Dubai.

A Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas observed, “The incapable adult is having every right to be under the care of his family and both parents. It may not be conducive for the petitioner to reside along with her estranged husband to take care of the incapable adult but nothing prevents her to have rotational custody so as to allow the incapable adult to enjoy the care, love and protection of both the parents. The separation of the petitioner from the incapable adult in the light of law as above is illegal.”

The Bench further said that the denial of access to one parent is also illegal in the light of the statutory provisions under the Rights of Persons with Disabilities Act, 2016.

Advocate Johnson Gomez represented the petitioner while Advocate N.M. Madhu represented the respondents.

In this case, the mother of the incapable adult challenged the order of the District Collector, Pathanamthitta who was the Chairman of the Local Level Committee constituted under the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (National Trust Act), declining the request made by her to appoint her as the legal guardian of the incapable adult. She had two male children and the younger one was incapable adult born in 2003 and the parties were in Dubai, UAE. The incapable adult was in the company of both of his parents and his mother claimed that she was forced to travel back to India as she was subjected to domestic violence.

The mother approached the District Collector to appoint her as a legal guardian but the same was not considered. Hence, she filed a writ petition before the High Court and it directed to take a decision on the application filed by her. This was considered by the District Collector and an order was passed rejecting her request for the reason that the incapable adult was living in UAE and holding that the National Trust Act cannot be applied beyond the territorial jurisdiction of the country. While holding so, the District Collector appreciated the requirement of the mother to be the legal guardian and thereafter, she filed a writ petition alleging that her son was in illegal custody of his father.

The High Court in view of the facts and circumstances of the case noted, “The incapable adult has every right to have the company of both the parents. A competent Court alone can deprive such company as seen from Section 9 of the Rights of Persons with Disabilities Act. Indian Courts do not generally recognize issuance of habeas when custody is with one of the parents; it only encourages interference with such custody through orders of the Family Courts. The effective remedy available under Indian law is to appoint a guardian under the National Trust Act. Section 14 of the National Trust Act provides provisions for appointment of a guardian for persons with disabilities. Section 15 enumerates the duties of guardian which includes taking care of such persons with disabilities.”

The Court took note of the fact that as per the father, the incapable adult was enjoying the unchanged environmental ecosystem for more than 10 years and any alteration in the same would be detrimental to the interest of the incapable adult.

“We do not find that such interaction is necessary. We had in fact, on an earlier occasion interacted with the father online. The incapable adult also appeared online. We are sure that the incapable adult will not be in a position to express any opinion in regard to his well-being. We note that the mother’s presence was there all along from the childhood of the incapable adult. Though she had dispute with her husband, she never extended it to deprive the incapable adult of enjoying the company of his mother. We also note that the petitioner mother is trained to take care of such differently abled person. Therefore, we decline the request made by the father of the incapable adult”, observed the Court.

The Court ordered that both parents be appointed as a joint guardian to take care of the incapable adult till any competent court decides otherwise the incompetency of either of the parents to take care.

Accordingly, the High Court allowed one writ petition and dismissed the other finding no scope to issue a writ of habeas corpus.

Cause Title- X v. Union of India & Ors. (Neutral Citation: 2023:KER:80740)

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