Parens patriae does not apply where: 1) a person is major; 2) not declared to be of unsound mind; 3) merely is an old, sick, bedridden person; and 4) person has a spouse/natural caregiver.
Statutory framework: Guardians and Wards Act, 1890 is minor specific
Section 3 -nothing in this act shall be construed to derogate or take away the jurisdiction or the authority of any court of the wards or the power given to the High Court.
Definitions
Section 4(1): Defined minor — means any person who under the provisions of the Majority Act, 1875 has not attained his majority.
Section 4(2): Defined guardian — means a person having the care of the person of a minor or his property or of both person and the property.
Section 4(3): Defined ward — minor whose person of property or both there is a guardian.
Section 7 — to appoint guardian
Section 7 gives the power to the court to make orders as to the guardianship.
The court is to be satisfied that the application is for the welfare of the minor of his person or the property or for both.
It empowers the court to appoint a guardian only for: 1) a minor, or 2) a person of the unsound mind.
A person suffering from physical illness old age or even being bedridden does not amount to unsound mind.
Section 9 — jurisdiction
Section 9 deal with the jurisdiction of the court.
It states that an application with respect to the guardianship of the person or the property of the minor shall be made to the District Court having jurisdiction in the place with the minor ordinarily resides.
Section 47 — appeal
Section 47 – the orders from the District Court are appealable to the High Court.
It states that an appeal shall lie to the High Court from an order made by the District Court under Section 7 thereby appointing, declaring or refusing to appoint a guardian for minor person or the property of the minor or for both.
A petition under Section 7, Guardians and Wards Act, 1890 cannot bypass Section 9 jurisdiction by invoking Clause 17 of the Letters Patent, 1865, especially when the statute is minor specific and self-contained.
Once Section 7 is Invoked, statutory discipline applies—
A petitioner who files under Section 7, Guardians and Wards Act, 1890:
1. Knowingly submits to the framework of the Act.
2. Cannot cherry-pick Section 7 and ignore Section 9.
3. Cannot invoke Clause 17 to bypass territorial jurisdiction.
A guardianship petition cannot be filed in a routine manner bypassing the extensive fact-finding required (Medical Board declaration) to declare a person as mentally infirm. The petitioner/applicant has to pleaded exceptional circumstances such as the imminent danger to the life or limb of the person whose guardianship is sought thereby justifying bypassing the ordinary civil process.
The Guardians and Wards Act, 1890 is a self-contained statute in itself. It is a special law and applies exclusively to the minors. There is no provision under this act to appoint.
A special statute must be followed in its entirety.
One cannot accept the substantive power but reject the procedural safeguards.
The Act is self-contained:
— Procedure
A guardian for an adult even if bedridden or in the vegetative state. The Guardians and Wards Act, 1890 is a comprehensive statute governing the guardianship of a minor and by extension of the incapacitated persons under the parens patriae jurisdiction. The Act provides for the procedure for the appointment, duties and the power of a guardian. It provides for a substantive framework.
Guardianship petition therefore lies before the District Court and not directly to the High Court. A petition directly to the High Court under Section 7, Guardians and Wards Act, 1890 is not maintainable. The guardianship proceedings would generally involve: 1) evidence, 2) medical evidence/examination, and 3) cross examination.
Guardianship is not a suit but it is a special statutory proceeding involving enquiry into the welfare of the person. It provides for the procedure, enquiry, appeal.
Letters Patent, 1865 Carter was issued by the British Crown to establish and regulate jurisdiction of the High Court in India and confers the powers upon the High Court (original jurisdiction, appellate jurisdiction and supervisory powers). It is a Carter creating the jurisdiction of the High Court.
Clause 17 preserves the High Courts jurisdiction regarding:
Infants
Lunatics
Idiots
Idiots (under the Black’s Law Dictionary) — states person with a profound mental retardation.
Lunatics (under the Black’s Law Dictionary) — is defined as a broken or deranged mental condition. A mental condition that impairs a person’s ability to govern themselves on their affairs and differs from the idiocy.
It reflects the parens patriae jurisdiction.
However:
It is not a parallel guardianship code.
It does not override subsequent special legislation.
It is not an alternative forum to bypass statutory jurisdiction.
Clause 17 of the Letters Patent, 1865 states that jurisdiction of the High Courts authority over as to the infants, idiots and lunatics. It states that the Bombay High Court shall have the power and authority with respect to the persons and estates of infants, idiots and lunatics within the Bombay presidency
But Clause 17 of the Letters Patent does not confer blanket guardianship.
Clause 17 of the Letters Patent will collapse where: 1) spouse is present, 2) there is no past misconduct pleaded, 3) property motive is evident, and 4) cannot override the Guardians and Wards Act, 1890 in a routine manner.
By merely invoking Clause 17 does not legitimise—
1. Guardians of a competent major.
2. By passing the District Court jurisdiction.
3. Displacement of the spouse.
4. Vague property controlled attempts.
5. Existence of the natural caregiver/spouse.
Limits of parens patriae jurisdiction
The doctrine means “parent of the nation” — inherent power to protect persons unable to protect themselves.
But courts have repeatedly held it must be exercised sparingly and can be exercised in extraordinary exceptional circumstances and cases. The court cannot in every case invoke parens patriae doctrine unless it is proved to the satisfaction of the court that the ward does not have either parent/legal guardian or has abusive/negligent legal guardian.
Parens patriae does not apply where: 1) a person is major; 2) not declared to be of unsound mind; 3) merely is an old, sick, bedridden person; and 4) person has a spouse/natural caregiver.
Clause 17 of the Letters Patent, 1865 operates only where the legal incapacity exists and there is no effective statutory remedy. Guardianship petition shall lie before the District Court and not the High Court directly. The statute does not confer original jurisdiction upon the High Court. There is no provision under the Guardians and Wards Act, 1890 permitting direct filing before the High Court. There is no provision under the Guardians and Wards Act, 1890 which permit direct filing before the High Court.
Invocation of the Clause 17 of the Letters Patent cannot cure the statutory bar of Section 9, Guardians and Wards Act, 1890.
Preference of spouse in adult incapacity cases
Guardianship is conduct based. These proceedings are based on the utmost good faith and deliberate omission of the existing care arrangement operates as a fraud upon the court because it hides the most critical aspect the current welfare and stability of the ward. It cannot be used to settle property dispute/succession between the parties. Invocation of the Clause 17 of the Letters Patent cannot confer jurisdiction where none exist. Though Clause 17 is undoubtedly available but the same is triggered only where legal incapacity is established and no efficacious statutory remedy is available.
The legislative intend would be defeated if Clause 17 of the Letters Patent is allowed to be invoked as a parallel forum. The Guardians and Wards Act, 1890 was enacted with the full knowledge of the Letters Patent and still consciously confined the original jurisdiction to the District Court. If the petition is property centric and not welfare centric the same can be addressed in the civil proceedings and not by appointing the guardian.
In the case of the relief of appointment as the guardian of a ward/adult person, the spouse has a superior claim to the guardianship given the history of cohabitation and the care. In the case of an infirm husband, the wife is the natural partner and the closest caregiver and unless the wife is proven unfit, she is preferred over the other relatives including the children for the guardianship of a comatose/bedridden husband. Without specific instances of detrimental conduct, the court cannot carry out roving enquiry into the wife’s management of the family assets which she is entitled to do so as the lady of the house.
1. Paritosh v. Union of India1 (Justices G.S. Kulkarni and Advait Sethna)-15 April 2025
(a) Petition filed by son under Article 226 invoking doctrine of parens patriae observation.
(b) Parens patriae to be exercised in exceptional cases and proved to the satisfaction of the court that the sad party does not have parent/legal guardian or abusive or negligent parent/guardian.
(c) Mother suffering from dementia and severe degree of cognitive impairment and unable to function normally.
(d) Affidavit of the petitioner/son — no objection for the appointment of the daughter as the guardian for the mother.
2. Rajni Hariom Sharma v. Union of India2 (Justices Bhuyan and Milind Jadhav )-
(a) Petition filed by the wife under Article 226.
(b) Husband in the vegetative state in comatose condition.
(c) Petitioner/wife has two sons (one is minor) and dependent mother-in-law.
—Observation—:
About Order 32-A, Civil Procedure Code, 1908 (CPC) which deals with suits relating to matter concerning the family. And Rule 1(2)(c) applying to suit or proceedings in relation to guardians of person or custody of minor or other member of the family under disability.
— It was observed that instead of filing the suit under CPC, petitioner had invoked the jurisdiction of this court under Article 226 of the Constitution of India.
— It also observed that in another matter, a civil suit was decreed by the Bombay High Court thereby declaring, recognising and appointing a lawful guardian of a Senior Advocate who was completely bedridden and incapable of taking any decision for himself.
— Observing wife is best suited to be the guardian of the husband who is under a state of incapacity or disability on account of being in a comatose condition or vegetative state emphasising that the marital bond places her in the primary position to act in his best interest.
3. Vahbiz Pervez Dumasia, In re3 (Justice Abhay Ahuja) – 8 May 2025
(a) It was preferred by petitioners/daughters.
(b) The guardianship petition was permitted to be amended and treated as a petition under Clause 17 of the Letters Patent.
(c) Father — 72 years/brain injury, semiconscious and incapacitated state, bedridden and neurological disability.
(d) Facts of the case (mother gave consent affidavit stating that she was of an advanced age and for the appointment of the petitioners as the guardians to the person and properties of her husband)
(e) This court had expressed apprehension about granting final reliefs sought on the basis that the petition was filed under the Guardians and Wards Act, 1890 under which guardian can be appointed for the welfare of the minor alone. This court acted to fill the vacuum in the absence of the statutory/legislative bar.
4. Meena Bharat Mehta v. Union of India4— In the Judgment order dated 30 September 2025, the Bombay High Court appointed wife as a guardian of her husband suffering from alzheimer prioritising her rule in his day-to-day life care and management of finances over other claims. The court recognise the wife as the best suited person to uphold the husband’s dignity.
5. Aruna Ramachandra Shanbaug v. Union of India5— The Supreme Court recognised that in medical and care decisions for an incompetent person, the spouse/nearest person/kin is the primary decision-maker.
6. Shafin Jahan v. Asokan K.M6— Parens Patriae applies to those persons who have no rightful protector. It cannot be used if a lawful guardian/spouse exists. Parens patriae can be involved only in the exceptional cases.
7. Charan Lal Sahu v. Union of India7— Concept of the parens patriae is based on the duty of the State to protect the defenceless. It is not a power to intervene in the functioning families.
Order 32-A CPC relates to the suits relating to matters concerning the family.
Order 32-A(1)(2)(c) provides that a suit or proceeding in relation to the guardians of a person or the custody of any minor or other member of the family under a disability.
This provision was specifically inserted in the CPC to deal with the family matters falling outside the scope of matrimonial/minority laws. It explicitly applies to the suit or proceedings in relation to the guardianship of a person/custody of minor/other members of the family under the disability.
It fills the legislative vacuum for the adult guardianship in India as unlike the Guardians and Wards Act, 1890 which is restricted to the minors Order 32-A CPC recognise that other members of the family (for example, elderly parents on the mentally infirm adults may require guardianship).
*Advocate practising in the Bombay High Court with 25 years of experience at the Bar. Author can be reached at: gaurishah147@icloud.com.
4. 2025 SCC OnLine BOM 6533.
5. (2011) 4 SCC 454 : (2011) 2 SCC (Civ) 280 : (2011) 2 SCC (Cri) 294.
6. (2018) 16 SCC 368 : (2020) 1 SCC (Cri) 850 : (2019) 1 SCC (Civ) 446.
