Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Shashi Kant Gupta and Saurabh Shyam Shamshery, JJ., allowed the plea by the wife seeking  the approval of being appointed as the guardian of her husband lying in vegetative state.

The Court while acknowledging the fact that there was no legislative enactment providing appointment of a guardian for a person lying in a comatose state considered the fact that they have been called to discharge ‘parens patriae’ jurisdiction. However under Article 226 of the Constitution of India they can pass orders and given directions as are necessary for subserving the ends of justice when no remedy is provided in any statute in respect to persons lying in comatose condition.

The petitioner had approached the High court praying to be appointed as the guardian of her husband who had been lying in a vegetative state in order to protect his interest and administer his investments, business, bank accounts etc. and utilize them when in need to meet expenses towards medical treatment and family welfare. Petitioner’s Counsel, Bidhan Chandra Rai, submitted that petitioner’s husband had been in comatose state for past one and a half years and the Doctors’ had advised that he would remain so until his eventual demise and now the petitioner has the sole responsibility of meeting the medical expenses and marrying her two daughters. It relied on the decision of the Kerala High Court in the case of Shobha Gopalakrishnan v. State of Kerala, 2019 SCC Online Ker 739, whereby a division bench appointed the legal heir of the victim as the guardian, reliance was also placed on the judgment of Delhi High Court, in the case of Vandana Tyagi v. Government of National Capital Territory of Delhi, 2020 SCC Online Del 32, which followed the suit.

The Court while allowing the petition further observed the case of Shobha Gopalakrishnan (supra) wherein certain broad guidelines with regard to appointment of guardian qua a person lying in a comatose state were laid, since no specific provision was available in any statute in this regard. The guidelines framed appear to be formidable and sound and, therefore, can be used as framework for formulating guidelines that need to be implemented in the State of Uttar Pradesh till such time, the legislative enactments are framed and specific provisions are made as to how guardians are to be appointed qua persons in a comatose state. [Uma Mittal v. Union of India, 2020 SCC OnLine All 777 , decided on 15-06-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: The Single Judge Bench comprising of Tarlok Singh Chauhan, J., addressed a very unusual petition in which the court exercised its “parens-patriae” jurisdiction.

In accordance to the facts of the case, petitioner is said to have requested her parents to marry “L” who is a facebook friend of the petitioner/ “K”, but after several attempts also petitioner’s parents did not agree for the marriage and instead they lodged a complaint against “L” under Sections 363, 366 376  IPC and Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012. Further the petitioner was handed over to her parents when she had claimed to have married “L” but later the petitioner came back to “L’s” house.

On filing the instant petition, the petitioner had sought reliefs on not being restrained by her parents or the police from living in her husband’s house or from any kind of harassment and also provision of police protection.

However, the Court had earlier asked for a status report in which it was seen that the petitioner is happily living with “L’s” parents and is being treated well by them. On looking at this report the Court directed that no authority shall remove the petitioner from such custody without the leave of this Court.

Therefore, the Hon’ble High Court, exercised “parens-patriae” jurisdiction to secure the welfare of the minor by taking instance from the Supreme Court case of Lata Singh v. State of U.P., (2006) 5 SCC 475 and proposing to the petitioner to live at Balika Ashram till the time she attains the age of majority and thereby, she will be free to go anywhere, marry anyone and love anyone she likes on reaching the age of majority, till that time no authority or person shall have the permission of the Court to take the petitioner from the Balika Ashram. [‘K’ v. State of H.P., 2018 SCC OnLine HP 432, dated 12-04-2018]

Case BriefsForeign Courts

United States District Court, Western District of Washington at Seattle: In sight of the continuous protests against travel ban on certain Muslim countries in USA, the State of Washington filed a complaint seeking declaratory and injunctive relief against Federal Defendants- Donald J. Trump, in his official capacity as President of the U.S.A, the United States Department of Homeland Security – John F. Kelly, Secretary of DHS, Tom Shannon, as Acting Secretary of State, and the United States of America.

Issue before the Court:-

The Executive order was issued on 27.01.2017 and the State sought declaratory relief invalidating portions of the order. The State prayed for the grant of TEMPORARY RELIEF ORDER (TRO) against Federal Defendants. Presently, the purpose of a TRO was to preserve the status quo before the court would hold a hearing on a motion for preliminary injunction. The Court observed that the standard for issuing a TRO is the same as the standard for issuing a preliminary injunction and that a TRO is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief” while citing Winter v. Natural Resources Defendant Council, Inc., 2005 SCC OnLine US SC 62 : 545 US 596 (2005) in which the test for granting a preliminary injunctive relief was laid down by U.S. Supreme Court, popularly known as Winter Test.

What is Winter Test?

This test lays down the proper legal standard for granting preliminary injunctive relief. As per the test, a party who seeks it, requires to demonstrate the following:-

(1) ‘that he is likely to succeed on the merits,

(2) that he is likely to suffer irreparable harm in the absence of preliminary relief,

(3) that the balance of equities tips in his favor, and

(4) that an injunction is in the public interest.’

Satisfaction of test in this case:-

The court found that the States could satisfy the abovementioned standards and the winter test. The court observed that the petitioners had shown that they were likely to succeed on the merits of the claims that would entitle them to relief; and they were likely to suffer irreparable harm in the absence of preliminary relief; the balance of the equities also favoured the States; and a TRO was definitely in the public interest. The irreparable harm is in the sense that the Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel.

These harms would extend to States by virtue of their roles as parens patriae of the residents living within their borders, the Court observed. Parens patriae, in law refers to the to the public policy power of the state to involve oneself with someone who has an abusive or negligent parent, legal guardian or informal caretaker, and can act as the parent of any child or individual who is in need of protection. Also, in US litigation, State can resort to this policy to create its stand to sue on behalf of its people and had successfully proved in this case that its people were being injured due to the implementation of the impugned executive order.

Not even this, but the State itself would be harmed by implementation of the executive order as it inflicts upon the operations of the public Universities in States and other institutions as well as injury to the States’ operations, tax bases, public funds, etc. such harms are significant capable of causing irreparable injury to States, the Court considered carefully.


The Court concluded that a TRO against Federal Defendants was necessary until such time as the court could hear and decide the States’ request for a preliminary injunction. It enumerated a few provisions of the Order against which the TRO was applicable and held that the temporary restraint on the ban on travel by certain countries would be effective nationwide until it hears the parties finally for preliminary injunction. [State of Washington and Minnesota v. President, U.S., Case No. C17-0141JLR,  order dated 03.02.2017 ]