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Thursday, January 9, 2014


Obviously, when people think about getting a guardianship order from the court for a mentally retarded person, people would think of acting in accordance with the provisions of Mental Health Act.
But the Mental Health Act does not include the provision for getting guardianship of a person who is mentally retarded. Mental retardation and mental illness are entirely different. Mental Health Act is meant for guardianship, reception order etc of Mentally Ill persons. 
Mental illness and Mental retardation are not same and therefore, the law also in not same. But this fact is not not known to many, even for lawyers.
A person who wish to get a guardianship for a mentally retarded person cannot file a petition before the District Court like a guardian OP. Taking account of the legislative intention of the Mental Health Act, petitions were filed before the Kerala High Court and Court held  (Js V Giri) - 2009 1 KHC 199 - that the High Court has the power to entertain such petitions in Writ Jurisdiction.
However, the safe and appropriate legal approach is to file a petition before the local level committee headed by District Magistrate under the provisions of THE NATIONAL TRUST FOR WELFARE OF PERSONS WITH AUTISM,CEREBRAL PALSY, MENTAL RETARDATION AND MULTIPLE DISABILITIES ACT 1999

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