Mashal Khan, a Pakistani national and the great grandson of Khan Abdul Ghaffar Khan, also known as Frontier Gandhi, recently moved the Bombay High Court seeking to be appointed as the guardian of his aunt Zarin Ghani Walsh – a resident of Breach Candy Gardens in Mumbai – on the ground that she is mentally and physically unfit to take necessary and appropriate decisions in her interest.
The court on Monday observed that though health reports sufficed to prove that Zarin was in need of guardianship, it could not decide on it until the Union government cleared its stand on the issue.
A division bench of Justice Suresh C Gupte and Justice Abhay Ahuja was hearing a writ plea filed by Mashal Khan (40), a resident of Charsadda in Khyber Pakhtunkhwa (North West Frontier Province) in Pakistan.
Zarin is the daughter of Frontier Gandhi’s eldest son Abdul Ghani Khan, who was married to Roshan Furdoonji, a Parsi from Hyderabad.
The plea, filed through advocate Vaishali Dholakia, stated that Zarin, who was born in Shimla in April 1944, had married Canadian citizen Stanley Arnold Walsh in 1975 and acquired Canadian citizenship. However, in 1983, the couple moved to India to take care of Zarin’s uncle P A Narielwalla and stayed on. Stanley died intestate (without making a will) in 2013 and Zarin’s only surviving relatives were the widow of her brother and her three sons, including Mashal, the plea added.
It further said that Zarin was hospitalised in April 2013 due to a fall, and has witnessed episodes of forgetfulness and sudden unconsciousness. Since 2013, she had been indisposed. The plea referred to her medical reports of 2019, which stated that she was suffering from Alzheimers for nearly seven to eight years.
When contacted by The Indian Express, Dr N Santhanam, CEO of Breach Candy Hospital administration, said the hospital cannot share details of patients citing the confidentiality clause.
The petition has said that after Zarin was certified as suffering from Alzheimers, owing to her age and health, the doctors had recommended last November that she needed to stay with her relatives.
Furthermore, as per Mashal’s petition, a psychiatrist, who examined Zarin on January 6 this year, stated in a medical certificate that she has been suffering from dementia from a very long time and was prescribed medication that controls agitation and aggression. As per the plea, the psychiatrist said that it would be appropriate for Zarin to have round-the-clock supervision and a guardian to look after her.
The plea stated that after Stanley’s death, Zarin appointed Mashal as the executor of her will in 2013 and urged the court that since she was not able to sign in a consistent pattern, he be appointed as her guardian in person and property.
Advocate Mayur Khanderparkar, who appeared to Mashal in HC, submitted that despite statutory provision for care of mentally disabled person, Guardians and Wards Act, 1890 or Mental Healthcare Act, 2017, did not consist of any provision for appointment of guardian for physically and mentally unfit and completely dependent persons to take decisions.
While seeking that Mashal be declared as Zarin’s guardian, Khandeparkar said that the petitioner had been visiting India regularly since 2013 and helping her with her property and bank accounts.
Moreover, Mashal sought that necessary permissions be issued for him to operate and execute documents on Zarin’s behalf. He also prayed to take her back to Pakistan, stating that she may spend her last days there and be laid to rest near her family.
Government Pleader Purnima H Kantharia submitted that the National Trust Act, 1999, provided for local committee to consider guardianship issue and the plea can be decided accordingly.
The bench said that it could not give a “go ahead” without hearing the Union Government’s position while noting that the issue was “novel”. Seeking response from the Centre, it posted the matter for further hearing on August 18.
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