1. Assisted Reproductive Technology Act | Enforcing Upper Age Limit On Couples Who Were In The Middle Of Treatment Is Arbitrary : Kerala High CourtCase Title: XXXX v. Union Of India and Connected CasesCitation: 2023 LiveLaw (Ker) 1The Kerala High Court observed that the imposition of age restriction under the Assisted Reproductive Technology (Regulations) Act, 2021 without a...
1. Assisted Reproductive Technology Act | Enforcing Upper Age Limit On Couples Who Were In The Middle Of Treatment Is Arbitrary : Kerala High Court
Case Title: XXXX v. Union Of India and Connected Cases
Citation: 2023 LiveLaw (Ker) 1
The Kerala High Court observed that the imposition of age restriction under the Assisted Reproductive Technology (Regulations) Act, 2021 without a transitional provision, is irrational and arbitrary. Thereby, the Court issued the direction that the petitioners who were undergoing ART services as of the date on which the ART Act came into effect (25.01.2022) shall be permitted to continue their treatment.
The Court has also directed the National Assisted Reproductive Technology and Surrogacy Board to alert the Central Government about the need for a re-look at the upper age limit prescribed in Section 21(g) of the Act.
The Court issued the aforesaid directions while disposing of a batch of Writ Petitions filed challenging the upper age limit of 50 years for women and 55 years for men prescribed under the Assisted Reproductive Technology (Regulations) Act, 2021 which prohibits the application of ART services to persons above the prescribed age limit.
2. Plastic Ban : Kerala High Court Lifts Ban On Non-Woven Bags Of 60 GSM & Above
Case Title: Nibu Kasim & Ors. v. Union of India & Ors. and M/S Go Green Bags v. Union of India & Ors.
Citation: 2023 LiveLaw (Ker) 19
The Kerala High Court held that the inclusion of non-woven bags of 60GSM and above in the list of banned single use plastic items by Government Orders without regard to the GSM standards, and in violation of the provisions of the Plastic Waste Management Rules, 2016 as arbitrary and illegal.
Justice N. Nagaresh, passed the order in two writ petitions filed before it challenging the ban on the non-woven bags brought into effect by virtue of certain Government Orders by the State of Kerala and the Kerala State Pollution Control Board.
The Court in this case noted that while Section 23 of the Environment Protection Act, 1986 provided that the Central Government is competent to delegate its powers and functions under the Act, 1986, the rule making power of the Central Government cannot be delegated.
"When, in exercise of the rule making powers under Section 25, the Central Government has prescribed minimum standard in GSM for manufacturing of non-woven bags, then under any delegated power the State Government cannot prescribe a different standard which would negate the rules framed by the Central Government. If any State Government issues executive instructions contrary to the Rules framed by the Central Government, it would amount to exercise of powers which the Act, 1986 has prohibited to delegate", it observed in this regard.
Case Title: Aswathi & Anr. v. Rajeesh Raman & Anr. and Betty Philip v. William Chacko
Citation: 2023 LiveLaw (Ker) 20
The Kerala High Court held that even though an order of maintenance may be enforceable at the place where the person - against whom it is made - resides, the court which passed the order also retains the power to execute it outside the jurisdiction where such person is residing.
The Single Judge Bench of Justice A. Badharudeen considered the legal question as to whether a court which passed an order of maintenance under Section 125 and 127 of the Code of Criminal Procedure (CrPC) is competent to execute the order against a person, who has been residing in a place outside its jurisdiction.
"...it is necessary in the interests of justice to visualise the plight of poor wife and children or the parents, as the case may be, if a view taken to the effect that each and every execution proceedings to enforce order of maintenance obtained by the wife, children and parents at the place where the person against whom the order was made. If such a proposition is declared, a clever husband or son or daughter, as the case may be, could very well shift their residence, outside the jurisdiction of the court where the order of maintenance sought to be executed, so as to defeat the enforcement of the order. No doubt, it may be easy for them to shift their residence periodically, to defeat the enforcement of the maintenance order," the court observed.
Case Title: Star Health Insurance And Allied Insurance Company Ltd v. Avinash T and Anr.
Citation: 2023 LiveLaw (Ker) 34
The Kerala High Court recently observed that COVID First Line Treatment Centre can be termed as a Hospital for the purpose of insurance claims.
Justice V G Arun said that as per the COVID-19 advisory for patient admission to CFLTCs issued by the Government, the Centre identified as COVID Health Care Centre should treat all mild and moderate symptomatic persons under surveillance and should be utilised for treating positive cases when need arises.
CFLTCs are Primary Level Health Care Centres set up for providing care to less serious cases and referral of serious cases to COVID hospitals, so as to avoid crowding in COVID Hospitals and avoid wastage of resources.
Case Title: Aaron S John v. TKM College of Engineering, Kollam and Ors.
Citation: 2023 LiveLaw (Ker) 37
The Kerala High Court, noting the increasing instances of sexual harassment against students in schools and colleges, observed that lessons in good behaviour and etiquette must be part of the curriculum and at least at the Primary Class level, teachers must be encouraged to instil virtues and values in students.
Justice Devan Ramachandran observed that the archaic concepts of masculinity have changed but it needs to change more.
"Boys, even from a very young age, often grow up with certain sexist stereotypes - reinforced by peer and other social influences. Showing a girl/woman respect and honour is not old fashioned; on the contrary, is a virtue for all times. Sexism is not acceptable or “cool”. One exhibits strength when he respects a girl/woman. Respectfullness is an imperative that needs to be inculcated very young. How one treats a woman gives an insight to his upbringing and personality."
Case Title: Clint Johnson v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 45
The Kerala High Court ruled that 'mentally retarded persons' are also entitled to tax exemption in purchase of motor cars, on par with the physically handicapped persons under the notification issued by the state government in 1998 under Section 22 of the Kerala Motor Vehicles Taxation Act, 1976.
Justice P.V. Kunhikrishnan said when both the Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and Rights of Persons With Disabilities Act, 2016 state that the person with disability includes 'mentally retarded persons' also, their exclusion from tax exemption and restricting the benefit to the physically handicapped persons - blinds, deaf and orthopedically handicapped persons, is discriminatory and is liable to be interfered by the court.
Case Title: Bijy Paul v. The Marriage Officer and Ors.
Citation: 2023 LiveLaw (Ker) 49
A Petition has been recently moved before the Kerala High Court challenging the provision of the Special Marriage Act, to the extent that it mandates a waiting period of 30 days after submission of the notice of intended marriage.
The Writ Petition was filed seeking a declaration that the mandatory waiting period is unconstitutional or a declaration that the 30 days period after submission of a notice of intended marriage mentioned in Section 6 and all consequential provisions under the Act are only directory and cannot be insisted upon.
Justice V G Arun noting that the matter requires detailed consideration, observed that,
A lot of changes and liberalisation has taken place even in our customs and practices. Yet another aspect is that a large number of youngsters are employed abroad. Such people come back to their native place only on short vacations and instances are many where the marriage is conducted during the short holidays. The Special Marriage Act requires one of the intending spouses to have resided within the territorial limits of the jurisdictional Marriage Officer for at least 30 days before submitting the notice of intended marriage. Thereafter, the intending spouses have to wait for another 30 days to solemnise the marriage. Whether this waiting period is essential in view of the revolutionary changes in the information technology sector and changes in the social set up itself are matters that should engage the attention of the law makers.
Cause Title: Dr. Balachandran v. State of Kerala and other connected matters
Citation : 2023 LiveLaw (Ker) 61
The Kerala High court has observed that a mere deviation from normal professional practice or an accident or untoward incident is not enough to prove medical negligence. Gross and culpable negligence beyond a reasonable doubt needs to be established for a medical professional to be convicted for criminal negligence, said the court.
A single bench of the court was hearing criminal appeals by three doctors and three nurses convicted by a lower court under sections 304A and 201 read with Section 34 of India Penal Code, 1860 for medical negligence. They were sentenced to simple imprisonment for a year for the offence under section 304A r/w 34 of IPC and simple imprisonment for three months for the offence under section 201 r/w 34 of IPC.
Justice Kauser Edappagath while acquitting the accused persons noted that the action of the medical professional should be the proximate or direct cause of death of the patient to establish a case of medical negligence and such evidence is lacking in the case. According to the court, nothing was brought on record to show gross and culpable negligence on part of the medical professionals.
“There is always the chance that the treatment does not go as planned. When things go wrong, it is not always the fault of the doctor. A complication by itself does not constitute negligence. There is a big difference between an adverse or untoward event and negligence. However, there is a growing tendency to accuse the doctor of an adverse or untoward event. Nothing can be more professionally damaging and emotionally draining than being arrayed as an accused in any such action.”
Case Title: Kerala State Insurance Department v. Joy Wilson M.V. & Ors.
Citation: 2023 LiveLaw (Ker) 65
Slamming State Insurance Department for its argument that a person crossing the road using 'zebra crossing' is required to be extra careful, the Kerala High Court held that unless it is specifically pleaded and proved that there was a clear case of negligence on part of pedestrian, such an inference cannot be made.
The department had challenged Motor Accidents Claims Tribunal's award of Rs.48,32,140 in favour of the kin of a 50 year-old woman who was hit by a police vehicle when she was crossing the roading using the 'Zebra Crossing'. Doreena Rola Mendenza, the victim, was headmistress of St.Joseph L.P. School, and died as a result of the accident.
The Court ordered that the pedestrian crossings must be marked and enforced on all main roads, and called it a "forensic duty" of the authorities.
Terming the case as an 'eye opener' for everyone, Justice Devan observed:
"Our roads are still woefully inadequate in pedestrian safety. There are seldom pedestrian crossings properly marked; and even when they are, very few drivers heed it. This Court is fully aware if the Rules relating to 'Zebra Crossing' are taught to the learner drivers; but it is evident that they are never enforced. This must now change – and quickly, with the traffic increasing and the jostle for space in our roads escalating rapidly. Pedestrian Crossings must be marked and enforced on all main roads – this is the forensic duty of the Authorities and officers concerned".
Case Title: Kalukutty v. P.M. John & Anr.
Citation: 2023 LiveLaw (Ker) 87
The Kerala High Court held that the monetary compensation to be awarded to a housewife who had been injured due to the reckless application of brakes while traveling in a Kerala State Road Transport Corporation (KSRTC) bus, would have to be measured and weighed on the same scales, as it would, had she been a working woman.
"...the contentions of the KSRTC, that a housewife earns no income and therefore, not eligible for compensation for disability and loss of amenities, is outrageous and beyond comprehension. The role of a mother and wife at home is beyond compare, and she is a true nation builder. She invests her time for the family and ensures that the next generation is fostered with the highest levels of excellence; and her efforts can never be taken trivially or brushed aside, as being without monetary value. The lives of human beings are never tested on the scales of their monetary worth, but by their contribution and selflessness", Justice Devan Ramachandran observed while enhancing the compensation that had been awarded by the Tribunal.
11. Witness Examination Through Virtual Mode Does Not Affect The Rights Of Accused
Case Title: Gopal C V Central Bureau of Investigation
Citation: 2023 LiveLaw (Ker) 121
The Kerala High Court held that the examination of a witness during trial may be conducted through video linkage mode as per the provisions of the Electronic Video Linkage Rules for Courts (Kerala), 2021 and that the same would not affect the rights of the accused.
A single bench of Justice A Badharudeen noted that under Rule 8(25) Electronic Video Linkage Rules for Courts (Kerala), 2021 witness examination via video conferencing is to be treated as compliance of the provisions of the Code of Criminal Procedure 1973, Code of Civil Procedure, 1908, Criminal Rules of Practice, Kerala and Civil Rules of Practice, Kerala. It is also applicable to any other law requiring personal appearance of parties in Subordinate Courts or Tribunals in relation to any enquiry, trial or any other proceedings, the court noted.
Case Title: Sumesh G.S @ Sumesh Marcopolo V State Of Kerala
Citation: 2023 LiveLaw (Ker) 148
The Kerala High Court recently came down heavily on certain online media channels for broadcasting private moments of a woman and said it is disheartening to note that some online news channels "are in the habit of publishing sleaze more than news."
A single bench of Justice VG Arun while criticising the recent media trend of publishing private content of individuals in the name of news said: “In my opinion, publication of another person's private moments for public viewing is, by itself, an offensive act, even if there is no law preventing such action. No person, whether it be the media or Governmental agencies, have the right to peep into the private lives of the citizens of this country, without there being a valid reason.”
Case Title: XXX v. YYY
Citation: 2023 LiveLaw (Ker) 179
The Kerala High Court recently held that granting permission to an Indian citizen to take his/her child abroad would not foreclose the right of the other spouse to get custody of the child.
The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar compared the situation to that of procuring custody of a child who is habituated resident in a foreign Country. It observed that while enforcing custody orders relating to a habitual resident child in a foreign country may be difficult, that is not the case when an Indian parent is permitted to take his/her child abroad- since Indian courts will be able to enforce their orders on such parent as long as he/she continues to be an Indian citizen.
It observed, "If the petitioner takes the child abroad as permitted by a court, there would not be any difficulty for enforcing the directions regarding custody of the child. The Family Court and this Court would be able to enforce such orders as long as the petitioner continues to be an Indian citizen. The enforcement of any such order is not similar to enforcement of custody orders relating to a habitual resident child in a foreign country".
Case Title: XXX & Anr. v. YYY
Citation: 2023 LiveLaw (Ker) 195
The Kerala High Court recently considered the question as to whether there is a provision entitling a Christian daughter to realize marriage expenses from the immovable property of her father or the profits therefrom, and answered the same in the affirmative.
The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar perused the provisions of the Hindu Adoptions and Maintenance Act, 1956, as well as the Muslim position on the aspect as revealed in Ismayil v. Fathima & Anr. (2011), and observed that,
"The right of an unmarried daughter to get reasonable expenses concerning her marriage from her father cannot have a religious shade. It is a right of every unmarried daughter irrespective of her religion. There cannot be a discriminatory exclusion from claiming such a right based on one's religion".
Case Title: Dhanya Martin v. State of Kerala & Anr. and other connected cases
Citation: 2023 LiveLaw (Ker) 221
The Kerala High Court recently held that the registering authority under the Special Marriage Act, 1954 cannot refuse solemnization of marriage online.
The Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas made its interim order dated September 9, 2021 in this regard absolute, and directed the State Government to follow the directions therein until the Government prescribes any other mode for compliance.
Case Title: Vishnu v. State of Kerala & Anr. and other connected matters
Citation: 2023 LiveLaw (Ker) 234
The Kerala High Court laid down certain broad principles to be borne in mind while considering pleas to quash criminal proceedings involving non-compoundable sexual offences against women and children, upon a compromise between the accused and the victim, invoking Section 482 of the Code of Criminal Procedure.
The Single Judge Bench of Justice Kauser Edappagath while hearing a batch of quashing petitions said no straitjacket formula can be formulated as each case is unique, and would have to be decided based on its peculiar facts.
The Court went on to add,
"...where the High Court has such facts on record which clearly exhibit that the criminal prosecution involving non-compoundable sexual offences against women and children will result in greater injustice to the victim, its closure would only promote her well-being, and the possibility of a conviction is remote, it can indubitably evaluate the consequential effects of the offence beyond the body of an individual and thereafter adopt a pragmatic approach and very well decide to quash such proceeding upon a compromise between the accused and the victim after taking into account all the relevant facts and circumstances of the particular case including the nature, magnitude, consequences of the crime and genuineness of the compromise. Needless to emphasize, the sexual offences which are grave, heinous, and gruesome in nature shall never be the subject matter of compromise".
Case Title: Raveendran P.T. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 237
The Kerala High Court recently observed that all unhealthy, unscientific and deleterious practices are to be prevented, even if the same has been done in the name of religion. The Court made the observation while ordering probe against the ritualistic sacrifice of birds and animals at a private residence.
Justice V.G. Arun further directed that if it is found that a place of worship for conducting rituals had been constructed, with members of the public participating in it, immediate action ought to be taken to stop the same.
The court added that if it is found that slaughter of animals and birds is taking place in the precincts of the building, appropriate action under the Kerala Animals and Birds Sacrifices Prohibition Act also ought to be taken.
Case Title: XXX v. State of Kerala
Citation: 2023 LiveLaw (Ker) 252
The depiction of a woman's naked body should not be regarded as sexual or obscene always, observed the Kerala High Court while discharging a mother from a criminal case pertaining to making a video of her children painting on her semi-nude body.
Taking note of the woman's explanation that the video was made to challenge patriarchal notions and to spread a message against the over-sexualization of the female body, the High Court observed that the video cannot be regarded as obscene. She was chargesheeted for offences under under Sections 13, 14, and 15 of the Protection of Children from Sexual Offences Act, 2012 (POCSO), Section 67B (d) of the Information Technology Act, 2000 and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act).
Case Title: X v. NIL
Citation: 2023 LiveLaw (Ker) 266
The Kerala High Court recently held that the law does not recognise a live in relationship as marriage and hence such a relationship cannot be recognised for the purpose of divorce either.
The law only allows parties to divorce if they are married under a recognised form of marriage as per personal law or secular law, the Court observed. So far, marriages entered into between parties through a contract does not have any recognition under law for the purpose of divorce, the Court noted.
A division bench comprising of Justice Muhamed Mustaque and Justice Sophy Thomas observed:
“Marriage as a social institution, as affirmed and recognised in legislation, reflects the social and moral ideals followed in the larger society. The Law is yet to recognise the live-in relationship as marriage. The Law accords recognition only if the marriage is solemnised in accordance with the personal law or in accordance with secular law like the Special Marriage Act.”
Case Title: XXX v. XXX
Citation: 2023 LiveLaw (Ker) 277
The Kerala High Court recently held that in matters of child custody, the welfare of the child alone is to be considered. A mother may be 'morally bad in the societal sense', but that does not mean the mother is bad for the welfare of the child, the Court observed.
A division bench comprising Justice Muhamed Mustaque and Justice Sophy Thomas observed,
“In a matter related to the child's custody, the welfare aspect alone has to be considered first. A man or woman may be bad for someone in a contextual relationship, that does not necessarily mean that the person is bad for his/her child. A mother may be morally bad in the societal sense, but that mother may be good for the child as far as the welfare of the child is concerned. The so called morality is created by society based on their own ethos and norms and should not necessarily reflect in a contextual relationship between a parent and child.”
Case Title: The Chairman and Managing Director, BSNL & Ors. v. C.R. Valsalakumari & Anr.
Citation: 2023 LiveLaw (Ker) 283
The Kerala High Court recently upheld the Administrative Tribunal order which stated that Child Care Leave (CCL) facility cannot be said to be restricted to the two 'eldest' surviving children alone, particularly when such facility had not been availed in respect of the first two children.
Interpreting Section 43-C of the Central Civil Service (Leave) Rules 1972, the Division Bench comprising Justice Alexander Thomas and Justice C. Jayachandran said,
"CCL benefit is available for 'two children', no matter whether they are 'eldest' or not. The only stipulation is that the Rule is available 'upto two children'."
Case Title: XXX v Union of India
Citation: 2023 LiveLaw (Ker) 289
Stressing on the need for proper 'safe sex education' among the youth, the Kerala High Court on Friday suggested the Government to consider constituting a committee and introducing 'safe sex education' in school and college curriculums. The Court asked the Chief Secretary to take appropriate action in this regard.
The Court made this observation while considering a plea by a father to medically terminate the pregnancy of his minor daughter impregnated by his minor son. A single bench of Justice P V Kunhikrishnan observed that such incidents take place due to lack of knowledge about safe sex:
“It is the duty of our society to keep these parents close to get over from this trauma. Nobody can blame the parents. But, we the society is responsible for this. Sibling incest may take place in the context of a family system that does not provide a safe environment for its members. But it may also happen because of the lack of knowledge about safe sex. I am of the considered opinion that the Government should seriously think about the necessity of proper 'sex education' in schools and colleges.”
23. Kerala High Court Directs State Police Chief To Sensitize Police Personnel To Mental Healthcare Act
Case Title: XXX V. State of Kerala
Citation: 2023 LiveLaw (Ker) 292
The Kerala High Court directed the State Police Chief to ensure that Police Officers are familiar with the provisions of the Mental Healthcare Act, 2017 so that they can sensitively deal with cases involving mentally ill persons.
A single bench of Justice K Babu considered the suggestion made by the Amicus Curiae in the matter to direct the competent authorities to make sure that Police Officers are given proper training in the Mental Healthcare Act.
Case Title: XXX v. YYY & Anr.
Citation: 2023 LiveLaw (Ker) 316
The Kerala High Court held that where there is prima facie evidence indicating long cohabitation between a man and a woman, a plea seeking direction to the man to subject himself to DNA Test for determining their alleged child's paternity cannot be brushed aside.
"If an order of the nature is declined that would have the impact of bastardizing the minor girl child among the public. Undoubtedly that would caste a social stigma upon the child as well as the mother respectively as 'bastard' and 'immoral'," the Single Judge Bench of Justice Mary Joseph observed.
Case title: Kerala State Legal Services Authority v. state of Kerala
Citation: 2023 LiveLaw (Ker) 366
The Kerala High Court considered whether victims of sexual harassment can claim compensation under the Kerala Victim Compensation Scheme, 2017 (amended in 2021). The issue arose for the reason that 'sexual harassment' punishable under Section 11 of the POCSO Act is not included as an 'injury' under the schedule of Kerala Victim Compensation Scheme.
Justice Kauser Edappagath, while upholding the compensation given to the sexual harassment victims held that a beneficial legislation or scheme must not distinguish between victims. The Court opined that the existing schemes are inadequate for compensating victims of sexual abuse under the POCSO Act and held thus:
“….it is obligatory on the part of the State Government to formulate a comprehensive victim compensation scheme specifically for the victims of sexual offences under the POCSO Act or to make necessary amendments in the existing Kerala Victim Compensation Scheme, 2017 (As amended in 2021) incorporating a separate Schedule applicable to sexual offence victims under the POCSO Act. The State Government shall take necessary steps in this regard forthwith.”
Case Title: XXX & Anr. v. The Health Secretary & Ors.
Citation: 2023 LiveLaw (Ker) 382
The Kerala High Court directed the Government to constitute a State Level Multidisciplinary Committee consisting of experts to examine requests for performing sex-selective surgeries on intersex children.
The Committee is to comprise of a Pediatrician/Pediatric Endocrinologist, Pediatric Surgeon and Child Psychiatrist/Child Psychologist.
The Single Judge Bench of Justice V.G. Arun also called upon the Government to issue an order for regulating sex selective surgeries on infants and children within three months. The Bench clarified that until such order has been issued, such surgeries shall be conducted only on the opinion of the State Level Multidisciplinary Committee that the same would be essential to save the life of the child.
Case title: Thressiamma Jose v State of Kerala
Citation: 2023 LiveLaw (Ker) 394
The Kerala High Court recently held that premature release cannot be completely denied to convicts for the only reason that they have murdered a woman or a child. Also, the Court held that the decision on premature release must be taken based on the policy prevalent on the date of conviction and not based on policy on the date of considering the application.
Discerning that such a blanket restriction against premature release was opposed to the concept of reformation in a welfare society, Justice Bechu Kurian Thomas held thus:
“A blanket stance that all persons who have murdered a woman or a child shall not be prematurely released de hors any other circumstances is not conducive to a welfare State. Such a stance will be contrary to the principles that govern the commutation of imprisonment. Commutation is based on the principles of reformation of the individual and intended to bring the convict back to society as a useful member. The supervening factors that are conducive to the convict must be taken into reckoning, while considering the issue of premature release.”
Case Title: Prameela L. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 408
The Kerala High Court recently upheld a Single Judge's finding that a Legal Heirship Certificate cannot be issued in favour of a person in the absence of a valid legal adoption and documents evidencing the adoption, so as to enable them to claim compassionate appointment upon the death of the alleged adoptive parent.
A Division Bench of Justice Alexander Thomas and Justice C. Jayachandran added that the lack of any evidence supporting the adoption on record justifies denying the requested relief, upholding the Single Judge's order.
"In the absence of a valid and legal adoption, and in any case, in the absence of documents evidencing the factum of adoption, albeit not in terms of law, we cannot find fault with the respondent authorities in not issuing a Legal Heirship Certificate in favour of the petitioner. More than the absence of a legal document evidencing a legal adoption, what weigh with us to refuse the relief sought for is the complete dearth of evidence suggesting an inference as to the factum of adoption from the materials on record."
Case Title: X v. Y
Citation: 2023 LiveLaw (Ker) 429
In an unprecedented move, the Kerala High Court directed the appointment of an independent counsel for rendering pro bono legal services to represent a child in a custody battle between its parents.
While passing the order, the Division Bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas noted that often, the best interests of children are not properly represented in the 'wrangle' between the mother and father.
Case title: Aneesh V State of Kerala
Citation: 2023 LiveLaw (Ker) 473
The Kerala High Court quashed criminal proceedings initiated against a man who was arrested by the Police from roadside for watching pornography on his mobile phone.
Justice P.V.Kunhikrishnan stated that "privately" watching obscene photos or videos on one's phone without distributing or publicly exhibiting it will not attract the offence of obscenity under IPC. It added that watching such content is a person's private choice and the Court cannot intrude into his privacy.
"The question to be decided in this case is whether a person watching a porn video in his private time without exhibiting it to others amounts to an offence? A court of law cannot declare that the same amounts to an offence for the simple reason that it is his private choice and interference with the same amounts to an intrusion of his privacy," Court observed.
Case Tite: Fr. Geevarghese John @Subin John v. State of Kerala
Citation: 2023 LiveLaw (Ker) 490
The Kerala High Court has observed that there is no proper legislation providing punishment for defamatory posts circulated on social media. Bench of Justice PV Kunhikrishnan thus urged the legislature to seriously look into this aspect.
The order stated,
“Defamatory Facebook posts continue to do the rounds on Facebook and other Social Media platforms. There is no proper punishment for such defamatory statements and posters on Facebook. The legislature must look into this aspect seriously, especially in the backdrop of this new era of technology and Social Media mania in existence in our society.”
Case title: Sujith Kumar S V Vinaya V S
Citation: 2023 LiveLaw (Ker) 494
The Kerala High Court, upholding an order passed by the Family Court, stated that DNA test cannot be conducted merely because the parties have a dispute or suspicion regarding paternity.
Justice A. Badharudeen observed that DNA test or other scientific tests can only be resorted to when there was a specific denial of paternity of the child.
“It has to be held further that when DNA test cannot be resorted to clear a suspicion regarding the paternity of the child, in the absence of specific denial of paternity of the child. In view of the above legal position, the dismissal of the application put in by the petitioner to conduct DNA test with a view to clear his suspicion/doubt regarding the paternity of the child, can only be justified.”
Case Title: Jisha Mohan v. Vishal V.M.
Citation: 2023 LiveLaw (Ker) 502
The Kerala High Court has held that a mother cannot be denied sole guardianship and custody of a minor child merely on the ground that she is relocating to another country for better job opportunities and fortune.
The Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas noted that merely because there is a parental battle for custody of the child, the same did not mean that the parties would have to remain locally without relocating elsewhere, in order to retain the custody of the child.
“If the relocation of the appellant is for better fortune, that cannot hold against her from claiming custody, provided, that the child's welfare is also protected. The child should recognise his biological parents and have every right to grow under their care and protection. If the biological parents are willing to protect the best interest of the child, denying the child to grow in a natural and familial atmosphere itself is against the best interest of the child,” the Court observed.
Case Title: Sangeetha R. v. The Secretary & Ors.
Citation: 2023 LiveLaw (Ker) 527
In an interesting development, the Kerala High Court invoked its parens patriae jurisdiction to select the name of a child, caught in a dispute between her estranged parents with respect to what her name should be.
Justice Bechu Kurian Thomas reasoned that attempting to resolve the dispute between the parents will cause inevitable delay and in the meanwhile, the absence of a name would not be conducive to the welfare or the best interests of the child.
"In the exercise of such a jurisdiction, the paramount consideration being the welfare of the child and not the rights of the parents, the Court has to perform the task of selecting a name for the child. While choosing a name, factors like the welfare of the child, cultural considerations, interests of parents and societal norms can be reckoned by the court. The ultimate objective being the well-being of the child, the court has to adopt a name, taking into consideration the overall circumstances. Thus, this Court is compelled to exercise its parens patriae jurisdiction to select a name for the child of the petitioner," the Court observed.
Case title: Suo Moto v State of Kerala
Citation: 2023 LiveLaw (Ker) 537
In a recent suo moto case on missing properties from court custody, the Kerala High Court noted that Rule 184 of Criminal Rules of Practice, 1982 dealing with maintenance of property registers was not in consonance with the technological advancements of present times.
Justice V.G Arun noted that amendments have to be made in Rule 184 for introducing recent technological advancements including digitizing records and registers.
“In my opinion, Rule 184 ought to be amended and provision should also made for digitizing the registers and records, in consonance with the recent developments. Digitization of the registers and introduction of electronic tracking system will help in preventing the stalemate of cases due to the missing, pilferage or damage of properties produced in court. I am expressing this opinion, being conscious of the fact that the case at hand is not an isolated instance of the missing of properties produced in court.”
Case Title: Noushad Flourish v. Akhila Noushad & Anr.
Citation: 2023 LiveLaw (Ker) 550
The Kerala High Court has held that a Muslim wife who effected her divorce by pronouncement of 'Khula' cannot claim maintenance from her husband under Section 125 CrPC, after effecting Khula.
Divorce by 'Khula' is a divorce at the instance of, and with the consent of the wife, by which she gives or agrees to give a consideration to the husband for her release from the marriage tie. Perusing Section 125 (4) of Cr.P.C., Justice A. Badharudeen noted that no wife shall be entitled to receive an allowance for the maintenance or interim maintenance, if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband or if they are living separately by mutual consent.
"When the wife effects divorce by Khula for getting her released from the husband, the same, in fact, is akin to refusal of the wife to live with her husband, as provided under Section 125(4) of Cr.P.C. If so, the wife, who effected divorce by Khula at her volition and thereby refuses to live with her husband voluntarily, is not entitled to get maintenance from the date of Khula in view of the restriction provided under Section 125(4) of Cr.P.C.," the Bench observed.
Case title: Narayanan v State of Kerala
Citation: 2023 LiveLaw (Ker) 569
The Kerala High Court has acquitted a man and his family who were convicted under Section 498A IPC for cruelty against a deceased woman on the finding that the parties were living together as husband and wife, based on a marriage agreement and their marriage was not solemnized.
Justice Sophy Thomas observed thus: “In the case on hand, since the marriage between the 1st revision petitioner and deceased Chandrika was not solemnised, and they started living together on the basis of a marriage agreement, which has no legal sanctity in the eye of law, they have to be treated as persons in live-in-relation, and they were not husband and wife, in order to attract an offence punishable under Section 498A of IPC. So, the trial court as well as the appellate court went wrong in finding the revision petitioners guilty under Section 498A of IPC and sentencing them for that offence.”
38. Dowry Demand Without Ingredient Of Cruelty Not An Offence U/S 498A IPC: Kerala High Court
Case Title: Niyas v. State of Kerala
Citation: 2023 LiveLaw (Ker) 571
The Kerala High Court held a mere demand for dowry or any property or valuable security without the ingredient of 'cruelty' would not attract the offence under Section 498A IPC. It held that when both elements of demand and cruelty are combined, then liability would be fastened on an accused.
Justice P. Somarajan observed: "A mere skirmish in the ordinary life between the spouses or intermittent quarrel or even a frequent quarrel, unless constitutes the ingredient of 'harassment' for meeting an unlawful demand for property or valuable security or on account of failure to meet such unlawful demand, would not constitute or attract the criminal liability that can be fastened for the offence under Section 498 A IPC. Likewise, a demand for dowry or any property or valuable security without the ingredient of “cruelty” as explained under clause (a) or (b) will not attract the said offence, but a combined effect of both these would bring home the liability under Section 498 A IPC."
Case Name: New India Assurance Co. Ltd. v. Shymi & Ors.
Citation: 2023 LiveLaw (Ker) 587
The Kerala High Court laid down that a father could also be treated as 'dependent' on his son to determine the personal expenses of the deceased son, while computing the compensation to be awarded under the Motor Vehicles Act.
Justice Ziyad Rahman A.A. noted that while the dependancy of the father upon his son after the latter's wedding would be limited, that by itself would not disentitle the father from being treated as one of the dependants of the deceased in order to determine the deductions to be made towards personal expenses. Court observed: "This is because, when the years pass, and advanced age weakens the earning capacity of the father, or various ailments, age-related or other, start affecting the mental and physical ability of the father, the son is supposed to or expected to come forward and support him. Such support from the son is something which a father can reasonably look forward to”.
Case Title: J.C. Daniel Foundation & Anr. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 609
The Kerala High Court has suggested the establishment of a database of societies registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act ('TC Act'), so that the District Registrars can avoid any dispute regarding names and other particulars between registered societies, and those seeking registration under the Act.
The Court made the above recommendation in a plea filed by the J.C. Daniel Foundation, Kowdiar, Trivandrum, which is a registered society under the TC Act, alleging that J.C. Daniel Foudation, Perumbayikode, Kottayam, and J.C. Daniel Foundation, Palayam, Thiruvananthapuram were also registered under the Act with the same name.
Case Title: Deepak K. v The Kerala State Election Commission & connected case
Citation: 2023 LiveLaw (Ker) 634
The Kerala High Court held that defection is a menace to the Indian representative democracy and that the existing laws were ineffective in curbing defection effectively.
Justice Bechu Kurian Thomas noted that despite anti-defection laws, many persons commit acts of defection. Taking into account the nature of orders that can be issued against defectors under the existing laws, Justice Thomas held that stringent financial penalties have to be imposed. It observed that only financial penalties will affect the defectors and deter them from committing acts of defection.
“Once an elected representative is found disqualified due to defection, the burden on the exchequer is immense due to the inevitable bye-elections. However, the person responsible for such nefarious activity is not affected seriously due to the nature of the orders that can be issued under the existing law. Considering the entire scenario, this Court has a wishful thinking that the time has come to contemplate on including stringent financial penalties for acts of defection. Unless a monetary pinch is felt by the defector, the evil acts that are sought to be remedied by the anti-defection law will continue. However, as it is a matter that requires a legislative exercise, this Court fervently hopes that the legislature will bestow its consideration earnestly.”
Case Title: Rijas M T v, Hafseena M
Citation: 2023 LiveLaw (Ker) 680
The Kerala High Court has expressed concern over the arduous procedure to obtain a maintenance order and has suggested the Parliament to bring about apposite changes in the law to ameliorate the situation.
"Destitute women and children are made to loiter in the corridors of the Courts to receive their monthly maintenance, which adds to their woes...this Court is of the firm view that the time is ripe for the Parliament to ponder in bringing corresponding changes in Chapter IX of the Code [Order for Maintenance of Wives, Children and Parents] to make it consonance with the law declared in Rajnesh or even think of a comprehensive maintenance law," Justice CS Dias observed.
43. Enacting Laws In English Will Not Deter Growth Of Regional Language: High Court To Kerala Govt
Case Title: P.H. Babu Ansari & Anr. v. Municipal Council & Ors.
Citation: 2023 LiveLaw (Ker) 683
The Kerala High Court emphasized the need for publishing statutes and rules in English language, as envisaged in Article 348(3) of the Constitution.
Article 348(3) permits usage of any local language other than English for use in the Legislature of the State but requires that a translation of the same in the English language be published under the authority of the Governor of the State in the Official Gazette of that State which shall be deemed to be the authoritative text thereof.
Relying upon decisions such as Thanga Dorai v. Chancellor, Kerala University (1995), and Murali Purushothaman v. State of Kerala (2002), which emphasized upon the requirement of of an English text for a Bill, Act, or Ordinance, Justice Bechu Kurian Thomas explained,
"When a State like Kerala opens its invitation for people from all over the world to invest, it would be incongruous if the laws are incomprehensible to them. The importance of English as an international language of communication and comprehension within and outside the Country cannot be ignored. Parochial considerations have to be kept aside while contemplating growth and development of the State. Enacting laws in English as mandated by the Constitution in a diverse country like India, will not have any bearing on the growth of the regional language. On the other hand, it can enhance the growth potential of the State as an investment destination with better awareness about its laws. Therefore, this Court reminds the State Government to abide by the Constitutional obligation to prepare the texts of all Statutes, Rules and other enactments in English, lest this Court be compelled to issue appropriate directions in that regard".
Case Title: XXX v. State of Kerala
Citation: 2023 LiveLaw (Ker) 713
The Kerala High Court laid down comprehensive guidelines to be followed by law enforcement agencies and Courts while handling sexually explicit materials.
The Single Judge Bench of Justice K. Babu issued the guidelines while ordering a 'fact-finding enquiry' on the allegations raised by the survivor in the 2017 actor sexual assault case pertaining to unauthorized access and copy and transfer of the visuals from a Memory Card relating to the incident.
Case Title: Dr. Athira P. v. State of Kerala & Ors. and connected matter
Citation: 2023 LiveLaw (Ker) 727
In a significant ruling, the Kerala High Court addressed the disadvantages that women may face due to their biological differences from men, in the context of getting opportunities in public employment. The Court said that the rules relating to public employment must accommodate the concerns of pregnant women and young mothers, so that they don't face discrimination.
The Division Bench comprising Justice A. Muhamed Mustaque and Shoba Annamma Eapen was of the view that, despite standing on equal footing along with men with respect to consideration in the affairs or chances in the public employment, biological differences of women, such as motherhood, may often result in indirect discrimination.
Case Title: XXX v. Union of India & Ors. and connected matters
Citation: 2023 LiveLaw (Ker) 740
The Kerala High Court recently laid down that Indian Courts are vested with the jurisdiction to protect the best interest or welfare of a child or an incapable adult, if so warranted, in circumstances where the Court forms an opinion that the party who approached it has no legal remedy before the Court beyond Indian territory.
The Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas observed that the Court, on invoking its writ jurisdiction, would have the power to adjudicate and that the parens patriae and nationality rules would also apply to protect the best interest of the child, or the welfare of the incapable adult.
It however cautioned that the Court ought to be circumspect to exercise its jurisdiction when it finds that the law of the foreign country can be invoked to protect the welfare or best interest of the child or incapable adult.
"There may be different circumstances related to the cases. If parties are ordinarily residing in a foreign country and can avail legal remedy in that foreign country, the courts in India shall not invoke such jurisdiction to regulate the affairs of its citizens living beyond territorial jurisdiction of the country. The Court steps into the shoes of a parent invoking parens patriae jurisdiction, only in those circumstances where the Court forms an opinion that jurisdiction of the foreign country cannot be availed by the party concerned, due to lack of laws or incapability of having legal remedy, or if one party is deprived of availing legal remedy due to issues of domicile or residentiary rights. When an efficacious alternate remedy is available, the Court shall refrain from invoking its jurisdiction over the affairs of its citizens who are living outside its territorial jurisdiction," the Bench observed.
Case Title: XXX v State of Kerala
Citation: 2023 LiveLaw (Ker) 748
In a significant ruling, the Kerala High Court held that a Magistrate cannot be prosecuted under 228-A IPC on an inadvertent omission to anonymize the name and details of the victims based on an analysis of Section 228-A and the Judges (Protection) Act, 1985.
For context, Section 228-A IPC relates to disclosing the identity of the victim of certain offences under Section 376 IPC etc. It is an offence triable by a Magistrate and punishable by up to two years imprisonment and a fine.
Justice Devan Ramachandran observed that the protection offered to judicial officers under the Judges (Protection) Act, 1985 was plenary and protects them from any action initiated qua an act, thing or word committed, done or spoken by him/her during the discharge of their official or judicial duties.
“In the case at hand, it is indubitable that the learned Magistrate was acting in performance of judicial duties and the error committed by her, or her office, is that the order was not anonymised qua the petitioner. This Court cannot, therefore, find the request of the petitioner, for initiation of action against the learned Magistrate under Section 228 A of the IPC, to be worthy of grant, specifically within the ambit of the said Section, read with the provisions of the Judges (Protection) Act, 1985. “, the Court stated.
Case Title: Abedur Shekh v State Of Kerala
Citation: 2023 LiveLaw (Ker) 759
“ There is no Keralite alone or Bengali alone or Kannadiga alone or Tamilian alone. All are brothers and sisters”, observed the Kerala High Court while holding that Courts cannot insist that surety should be from a particular state. It stated that such bail conditions would be unmindful of the fact that we are all Indians.
Aggrieved by the bail condition that one surety should be from the Idukki district itself, the petitioner who was a native of West Bengal has approached the Court.
Justice P.V. Kunhikrishnan observed that all persons are citizens of this country and Courts cannot insist that surety should belong to a particular area.
“If a Keralite unfortunately became an accused in West Bengal, he would find it extremely difficult to get a surety at West Bengal as he is not a resident of that State. He can produce a surety from his native place where his kith and kin are residing. Similar is the case if a native of West Bengal becomes accused of an offence in Kerala. All are citizens of this country. The sureties are executing the bond to produce the accused as and when required. It cannot be insisted that the sureties residing within the jurisdiction of the Court should execute a bond in all situations.”
Case Title: Biju Sundar v State of Kerala
Citation: 2023 LiveLaw (Ker) 760
The Kerala High Court has made it clear that a fine balance has to be found between the requirements of administration and the imperative to provide greater opportunities to PwD Candidates.
The petitioner, in this case, challenged the 2023 notification for appointment as District & Sessions Judge in Kerala State Higher Judicial Service (KSHJS) by direct recruitment from bar (hereafter, notification) for being violative of the rights of disabled persons.
Disposing of the writ petition, Justice Raja Vijayaraghavan V issued directions for the identification of posts, working out backlog vacancies, providing age relaxation, granting grace marks and filling up backlog vacancies through a special recruitment drive for ensuring full and equal rights to disabled persons to fulfil the constitutional mandate as per the Right of Persons with Disabilities Act, 2016.
Case Title: XXX v State of Kerala
Citation: 2023 LiveLaw (Ker) 766
The Kerala High Court has held that a consumer in a brothel house comes within the purview of Section 5 of the Immoral Traffic (Prevention) Act, 1956 (ITP Act). Section 5 makes persons liable who procure, induce or take persons for prostitution.
Justice P.G. Ajithkumar observed that since the word 'procure' had not been defined in the ITP Act, it has to be understood to achieve the object behind the statute. The Court stated that the statute was enacted to prevent commercialisation of the vices and trafficking among women and girls, a consumer in a brothel house can also be made liable for procuring a person for prostitution under Section 5 of the Act.