X Vs. UNION OF INDIA

JUDGEMENT

(1.) These writ petitions are filed by the mother of XXXXX(*) (hereinafter referred to as the "incapable adult") who is suffering from autism spectrum disorder. W.P.(Crl).No.1206/2022 was filed for issuance of a writ of habeas to produce the aforesaid incapable adult before this Court. It proceeds on an allegation that the incapable adult has been detained in illegal custody of his father against his wish and will in Dubai. W.P.(C). No.42320/2022 was filed challenging an order of the District Collector, Pathanamthitta, who is 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 (for short the "National Trust Act"), declining the request made by the petitioner to appoint her as the legal guardian of the incapable adult.

(2.) The petitioner married 'Y'(*) on 2/2/1998 in accordance with Christian personal law. In that wedlock, two male children were born. The elder child has now crossed the age of 21 years. The younger incapable adult was born on 31/1/2003. The parties were in Dubai, UAE. It seems that the incapable adult was diagnosed with pervasive developmental disorder when he was two and half years old. He was treated at NIMHANS, Bangalore. Finally, he was diagnosed with autism spectrum disorder. The incapable adult, XXXXX(*) was in the company of both his parents. Though it is stated that the married life of the petitioner and husband was not happy from the initial phase of marital life itself; as seen from various records, treatments were given to the incapable adult and he was brought up in a family environment. The matrimonial dispute never ended. The petitioner claims that she was forced to travel back to India as she was subjected to domestic violence, and she came back to India based on the orders passed by this Court to obtain the passport from her estranged husband with the intervention of the Indian Consulate. The petitioner approached the District Collector, Pathanamthitta, to appoint her as a legal guardian under the National Trust Act on 9/11/2021. Since it was not considered, the petitioner approached this Court in W.P.(C).No.23474/2021. The said writ petition was disposed of on 15/9/2022 directing the District Collector, Pathanamthitta, to take a decision on the application filed by the petitioner to appoint her as the legal guardian. This was considered by the District Collector and on 29/9/2022 an order was passed rejecting her request for the reason that the incapable adult is living in UAE and holding that the National Trust Act cannot be applied beyond the territorial jurisdiction of this country. While holding so, the District Collector appreciated the requirement of the petitioner-mother to be the legal guardian of the incapable adult. The petitioner, thereafter, filed W.P.(Crl).No.1206/2022 for issuance of a writ of habeas on 5/12/2022 alleging that the incapable adult is in the illegal custody of his father. She filed the other writ petition challenging the order of the District Collector, on 21/12/2022. Various orders were also passed by this Court on 18/1/2023 and 23/12/2022 to allow interaction with the incapable adult.

(3.) Taking note of the fact that this Court will have to decide on a jurisdictional issue intertwined with the welfare of the autistic person who is an international person and, currently a resident of another foreign country, UAE, we appointed Adv.Anil Malhotra, a Chandigarh-based lawyer to assist us. At the outset, we must state that his assistance in this matter was immense. The notes of submission made by him, based on research by Adv. Ankit Malhotra gave insight into the law on the matter. We also heard Shri Johnson Gomez, learned counsel for the petitioner and Shri N.M.Madhu, learned counsel for the respondent. THE MAIN SUBMISSIONS OF THE COUNSEL FOR THE PARTIES: