The Need for a Legislative Panacea For Mentally Challenged Persons To Dispose Off Their Property
INTRODUCTION
The property of a minor can be disposed off upon obtaining the permission of the concerned court. This has been envisaged under Section 8 of the Hindu Minority and Guardianship Act, 1956 and Section 28 of the Guardian and Wards Act, 1890. A guardian of property is provided with such an authority in order to protect the interest of minor, who is incapable of making decisions for himself.
Likewise, a lunatic person, as defined under the Indian Lunacy Act, 1912, included in its ambit the mentally retarded person and was accorded similar protection as regards to their property under Section 75 of the Act. Even after the repeal of the Indian Lunatic Act with the Mental Health Act, 1987 (MH Act), this protection continued as regards mentally ill persons were concerned. However, in the MH Act, mentally retarded persons were specifically excluded and thus the benefit of the provision was denied to them.
Although, mentally challenged (interchangeably used with mental retardation) persons are not seen as minor, the principle of non sui juris i.e. the incapacity to make decisions, applies to them. Unfortunately, no similar leeway, as that provided to minors and lunatics, are provided to them.
There exists a legal lacuna as regards protection of the property of mentally challenged persons, especially regarding the disposal of their immovable property for the ‘necessity’ or ‘benefit’ of them. Although the Parliament has passed multiple legislations for regulating aspects related to that of mentally ill patients, none of them have included a mentally challenged person within its gamut or scope of application.
LAWS RELATED TO MENTAL HEALTH
Section 3(5) of the Indian Lunacy Act, 1912, which is now repealed, had defined a lunatic as a person who is an idiot or a person of unsound mind. This had been interpreted to include a mentally retarded person. Section 75 of the Act had empowered a guardian, appointed under the Act to sell off a lunatic’s property upon receiving sanction from the court concerned. However, this Act was repealed by Section 98 of the MH Act.
Section 2 (l) of the MH Act defines a mentally ill person as “a person who is in need of treatment by reason of any mental disorder other than mental retardation.” The section explicitly excludes a mentally retarded person from the ambit of the MH Act.<
Section 54 of the MH Act provides for appointing a guardian to manage the property of a mentally ill person and Section 59 empowers such a person to dispose off such a property subject to the approval of the court.
In the Mental Healthcare Act, 2017 (Healthcare Act), which replaced the MH Act, albeit providing for an expansive definition, exclusively left out mental challenged from its ambit. Surprisingly, no provision is found in the Act for disposal of a mentally ill person’s property also, unlike the MH Act. In the case of the National Trust Act, Section 2(g) defines mental retardation, thereby including it within its ambit. However, in this context, the National Trust Act provides only for the constitution of a body which shall receive bequests of movable property from any person for the benefit of a mentally retarded person.
This did not resolve the quagmire, as a mentally challenged person, who has sufficient property cannot realise any of his property into monetary form for taking care of his basic necessities or for his personal benefit. Furthermore, whether the Rights of Persons with Disabilities Act, 2016 (RPWD Act), intended to include mentally retarded persons within its ambit is unclear. Courts are yet to decide on the matter.