LI Network
Published on: December 27, 2023 at 13:50 IST
The Kerala High Court recently upheld the right of an incapable adult to be under the care of both parents and family.
The ruling came in response to a writ petition filed by the mother of an adult with autism spectrum disorder, seeking a writ of habeas corpus to produce her adult son before the Court.
The petitioner alleged that the adult was being unlawfully detained in Dubai by his father against his wishes.
A Division Bench consisting of Justice A. Muhamed Mustaque and Justice Sophy Thomas emphasized that an incapable adult has the right to be cared for by both parents and family.
The Court acknowledged that while it might not be practical for the petitioner to reside with her estranged husband, rotational custody should be allowed to ensure the incapable adult enjoys the care, love, and protection of both parents.
The Court deemed the separation of the petitioner from the incapable adult as illegal.
The Court further highlighted the illegality of denying access to one parent, citing the statutory provisions under the Rights of Persons with Disabilities Act, 2016.
The Bench directed the Hindu Religious and Charitable Endowments (HR&CE) Department to appoint a suitable person and take appropriate action after assessing the Tahsildar’s report.
In this case, the mother challenged the District Collector’s order declining her request to be appointed as the legal guardian of the incapable adult. The District Collector, citing the National Trust Act, rejected the request, asserting that the Act does not apply beyond the territorial jurisdiction of the country. The mother subsequently filed a writ petition, alleging that her son was in illegal custody of his father.
The High Court, considering the circumstances, emphasized the incapable adult’s right to the company of both parents. It noted that the appointment of a guardian under the National Trust Act was the appropriate legal remedy.
The Court ordered the joint appointment of both parents as guardians until a competent court decides otherwise regarding their competency to care for the incapable adult.
The High Court allowed one writ petition and dismissed the other, finding no grounds to issue a writ of habeas corpus.
Case Title: X v. Union of India & Ors