Nominal Index [Citations: 2024 LiveLaw (Ker) 480 – 505]Sajid Muhammedkutty v State of Kerala and Another, 2024 LiveLaw (Ker) 480Moidutty Musliyar v Sub Inspector Vadakkencherry Police Station, 2024 LiveLaw (Ker) 481Rasheeda Bano v Union of India, 2024 LiveLaw (Ker) 482Intersource Exports (P) Ltd. Versus Deputy Commissioner Of State Tax, 2024 LiveLaw (Ker) 483XXX V State of Kerala, 2024...
Nominal Index [Citations: 2024 LiveLaw (Ker) 480 – 505]
Sajid Muhammedkutty v State of Kerala and Another, 2024 LiveLaw (Ker) 480
Moidutty Musliyar v Sub Inspector Vadakkencherry Police Station, 2024 LiveLaw (Ker) 481
Rasheeda Bano v Union of India, 2024 LiveLaw (Ker) 482
Intersource Exports (P) Ltd. Versus Deputy Commissioner Of State Tax, 2024 LiveLaw (Ker) 483
XXX V State of Kerala, 2024 LiveLaw (Ker) 484
Mammen Varghese v State of Kerala, 2024 LiveLaw (Ker) 485
B Prakash v Lazitha, 2024 LiveLaw (Ker) 486
A. A. Rahim v State of Kerala and Others, 2024 LiveLaw (Ker) 487
Anupama Padmakumar v State of Kerala, 2024 LiveLaw (Ker) 488
Bharatheeya Jyothisha Vichara Sangham v State of Kerala, 2024 LiveLaw (Ker) 489
National Highway Authority of India v P. V. George and Others, 2024 LiveLaw (Ker) 490
Anujith v State of Kerala, 2024 LiveLaw (Ker) 491
Litty Mary John v Manoj K. Varghese, 2024 LiveLaw (Ker) 492
South Indian Bank v Directorate of Enforcement and Others, 2024 LiveLaw (Ker) 493
The Commissioner Of Income -Tax (Exemptions) Kochi Versus M/S.Kerala Cricket Association, 2024 LiveLaw (Ker) 494
DR. Valsamma Chacko v Leelamma Joseph, 2024 LiveLaw (Ker) 495
Ramesh VV v Jyothi Maruthiyodan, 2024 LiveLaw (Ker) 496
Saneesha M. S. v The Village Officers and Others, 2024 LiveLaw (Ker) 497
Kerala Pradesh School Teacher's Association v State of Kerala & Connected Cases, 2024 LiveLaw (Ker) 498
Dhanya Sajith v M R Binoy Mathew, 2024 LiveLaw (Ker) 499
Tomy T. J. v State of Kerala and Another, 2024 LiveLaw (Ker) 500
Pradeep Kumar v State of Kerala, 2024 LiveLaw (Ker) 501
Sunil P P v State of Kerala, 2024 LiveLaw (Ker) 502
Prakash v Vandana, 2024 LiveLaw (Ker) 503
State v R. Baiju, 2024 LiveLaw (Ker) 504
C K Sasidharan v The Welfare Fund Inspector & Another, 2024 LiveLaw (Ker) 505
Judgments/Orders This Week
Illegal 'Talaq-E-Sunnat' Not Punishable As 'Triple Talaq': Kerala High Court
Case Title: Sajid Muhammedkutty v State of Kerala and Another
Citation: 2024 LiveLaw (Ker) 480
Kerala High Court in a recent judgment held that if the intention is not to pronounce instantaneous and irrevocable talaq, it cannot be considered as talaq–ul–biddat.
The petitioner had sought quashing of the proceedings against him before the Judicial Magistrate First Class.
The respondent had accused him of committing an offence under the Muslim Women (Protection of Rights on Marriage) Act, 2019 by pronouncing instant and irrevocable talaq on her.
Prohibition Of Child Marriage Act Supersedes Muslim Personal Law : Kerala High Court
Case Title: Moidutty Musliyar v Sub Inspector Vadakkencherry Police Station
Citation: 2024 LiveLaw (Ker) 481
The Kerala High Court has ruled that the Prohibition of Child Marriage Act, 2006 will supersede the Muslim Personal Law (Shariat) Application Act, 1937. The Court stated that every Indian citizen regardless of their religion and location is bound to adhere to the law prohibiting child marriage.
Justice P. V. Kunhikrishnan stated that a person's primary status as a citizen of the country takes precedence over religion. The Court stated that citizenship is primary, and religion is secondary. The Court thus noted all citizens, regardless of whether they are Hindu, Muslim, Christian, Parsi, or of any other religion, are bound by the Act.
Case Title: Rasheeda Bano v Union of India
Citation: 2024 LiveLaw (Ker) 482
The Kerala High Court has directed the Union Government to grant Indian citizenship to two women aged 21 and 24, without insisting upon a Renunciation certificate from the Pakistan government.
The Court stated that the government cannot compel the petitioners to produce a Renunciation Certificate since they migrated to India after surrendering their Pakistani passports before attaining the age of majority.
Justice T R Ravi directed the Government to grant Indian citizenship to petitioners based on the non-objection certificate issued by the Pakistani government and because they had surrendered their Pakistani passports upon migrating to India as minors.
Assessments Getting Time Barred By 31.03.2017 Can Continue Only Upto 31.03.2018: Kerala High Court
Case Title: Intersource Exports (P) Ltd. Versus Deputy Commissioner Of State Tax
Citation: 2024 LiveLaw (Ker) 483
The Kerala High Court has held that the assessments that were getting time barred by 31.03.2017 can continue only up to 31.03.2018.
The bench of Justice Gopinath P. has observed that there was no material to conclude that notice was actually issued on 18.03.2018, as it is quite unlikely that a notice dated 18.03.2018 was not served on the petitioner till 25.03.2019. It is also seen from the notice that a hearing was proposed only on 30.03.2019, and it is quite inconceivable that a notice dated 18.03.2018 will propose a hearing more than a year later on 30.03.2019.
Case Title: XXX V State of Kerala
Citation: 2024 LiveLaw (Ker) 484
The Kerala High Court has cautioned the POCSO Courts to be vigilant whilst considering allegations of child's sexual abuse levelled by his/her mother against the father, especially when there are ongoing matrimonial and custody disputes between them.
In this case, the wife, had accused her husband of sexually harassing their 3-year-old daughter. The couple was also engaged in an ongoing marital dispute to get the child's custody.
Justice P.V.Kunhikrishnan found that the complaint made by the mother against the petitioner was false and frivolous to get the child's custody. It stated that making false allegations of child sexual exploitation by the father due to matrimonial disputes causes emotional distress for the accused, child and other family members.
Case Title: Mammen Varghese v State of Kerala
Citation: 2024 LiveLaw (Ker) 485
The Kerala High Court has held that cartoonists, being a part and parcel of the Press and Media, are entitled to Freedom of Expression guaranteed by Article 19 (1) (a) of the Constitution of India.
The Court thus quashed proceedings initiated against the Printer and Publisher, Editorial Director, Managing Editor, Editor and Chief Editor of Kerala news daily 'Malayala Manorama', under Section 2 of Prevention of Insult To National Honour Act, 1971 for allegedly insulting the National Flag.
The specific case was that Malayala Manorama, in connection with the 70th Independence Day celebrations, published a caricature depicting Mahatma Gandhi and the Indian flag, with the top side of saffron portion of the flag outlined with a black line.
Justice P.V.Kunhikrishnan observed that the small picturization of a cartoonist creates powerful visual commentary that engages, provokes and inspires the audience.
Case Title: B Prakash v Lazitha
Citation: 2024 LiveLaw (Ker) 486
The Kerala High Court held that a male child who has attained majority cannot claim maintenance from their father as per the provisions of the Protection of Women from Domestic Violence Act, Section 125 of CrPC and Section 20 (3) of the Hindu Adoption and Maintenance Act.
Justice P.G. Ajithkumar stated, "Thus, none of the said provisions entitles a male child who has attained majority to claim maintenance from his father.”
Case Title: A. A. Rahim v State of Kerala and Others
Citation: 2024 LiveLaw (Ker) 487
The Kerala High Court allowed the appeal filed by Rajya Sabha MP A. A. Rahim challenging the order of Judicial First Class Magistrate – III, Thiruvananthapuram allowing him to hold a diplomatic passport for only two years.
A. A. Rahim has been a Member of Parliament in the Rajya Sabha since April 2022 and a Member of the Parliamentary Standing Committee on Transport, Tourism and Culture.
Kerala High Court Grants Bail To 22-Yr-Old Woman Accused In Kollam Child Kidnapping Case
Case Title: Anupama Padmakumar v State of Kerala
Citation: 2024 LiveLaw (Ker) 488
The Kerala High Court has allowed the bail application of Anupama, a 22-year-old daughter of the family who was allegedly involved in kidnapping a six-year-old minor female child in Kollam district.
The kidnapping of the minor girl for ransom on November 2023 shocked the entire State, with Anupama being named as the third accused in the case. Her parents were arrayed as the first and second accused.
Case Title: Bharatheeya Jyothisha Vichara Sangham v State of Kerala
Citation: 2024 LiveLaw (Ker) 489
The Kerala High Court today invoked its parens patriae jurisdiction to issue directions for ensuring the safety of pilgrims and others during the Balitharpanam and Karkidakavavu rituals conducted by devotees in public places such as Shanghumukham, Thirumullavaram, Varkala and other places during the Karkidakavavu festival on August 3, 2024.
The Division Bench comprising Justice Anil K Narendran and Justice Harisankar V. Menon observed that the police and district authorities must ensure the safety of pilgrims performing the Balitharpanam rituals due to the bad weather conditions in the State.
Case Title: National Highway Authority of India v P. V. George and Others
Citation: 2024 LiveLaw (Ker) 490
The Kerala High Court held that for arbitration proceedings other than under the Arbitration and Conciliation Act, the provisions of the Limitation Act would not apply unless expressly mentioned in the law under which the arbitration proceedings were initiated. It was thus observed that the Limitation act would not apply to arbitration proceedings under the National Highways Act.
The respondent filed a writ petition before the High Court against the rejection and the High Court held that the delay could be condoned. The National Highway Authority of India challenged the decision of the High Court in this appeal. The Division Bench of Acting Chief Justice A. Muhamed Mustaque and Justice S. Manu considered whether provisions of the Limitation Act applied to arbitration proceedings under the National Highway Act.
Case Title: Anujith v State of Kerala
Citation: 2024 LiveLaw (Ker) 491
The Kerala High Court has held that the mode of examining a victim through the Special Court (intermediary) in a POCSO case as per Section 33 (2) of the POCSO Act remains unchanged even if the victim attains the age of majority during the trial.
Justice Bechu Kurian Thomas observed that the benefit of Section 33(2) to a victim cannot be denied depending upon the date of examination of the victim who faced the trauma of sexual abuse as a child. The Court observed that if the method of examination were based on the victim's age at the time of examination, the accused might use clever tactics to delay the trial.
Case Title: Litty Mary John v Manoj K. Varghese
Case Citation: 2024 LiveLaw (Ker) 492
The Kerala High Court has held that a woman who complains of being in a loveless relationship with her husband who is allegedly living a wayward life and acting under the influence of alcohol would not be able to enumerate each and every incident of cruelty.
The Division Bench of Justice Devan Ramachandran and Justice C. Pratheep Kumar were considering an appeal filed against the decision of the Family Court in a divorce petition.
Case Title: South Indian Bank v Directorate of Enforcement and Others
Citation: 2024 LiveLaw (Ker) 493
Kerala High Court has held that even though ECIR is an internal and administrative document, the same can be quashed by the High Court exercising its inherent powers under Section 482 of Code of Criminal Procedure (Cr.P.C).
Justice Bechu Kurian Thomas observed: “Any order passed under the provisions of the Cr.P.C can be given its full effect by issuing appropriate orders under section 482 Cr.P.C. The scope of the power under section 482 Cr.P.C is not limited or constricted by the character or nature of the order under challenge. Even an administrative order can be quashed in exercise of the power under section 482 Cr.P.C, if it is required to give effect to an order issued under the Cr.P.C or if it is necessary to secure the ends of justice.”
Case Title: The Commissioner Of Income -Tax (Exemptions) Kochi Versus M/S.Kerala Cricket Association
Citation: 2024 LiveLaw (Ker) 494
The Kerala High Court has remanding the matter to the Income Tax Appellate Tribunal (ITAT) to determine whether income received by the Kerala Cricket Association during the assessment years 2010-11, 2012-13, and 2013-14 would partake of the nature of exempted income going by the provisions of Section 2(15) of the Income Tax Act.
The bench of Justice A.K. Jayasankaran Nambiar and Justice Syam Kumar V.M. has set aside the impugned orders of the Income Tax Appellate Tribunal and remand the matter to the Tribunal for a fresh determination of the issue in the light of the observations of the Supreme Court in Ahmedabad Urban Development Authority. The Supreme Court held that entities created with the object of advancing general public utility cannot seek exemption under the Income Tax Act 1961 under the heading "charitable purposes” if they are engaging in any trade, business, commerce, or providing any service for any consideration.
Kerala High Court Says It Lacks 'Supervisory Jurisdiction' Over NCDRC
Case Title: DR. Valsamma Chacko v Leelamma Joseph
Citation: 2024 LiveLaw (Ker) 495
The Kerala High Court has held that it can exercise its supervisory jurisdiction under Article 227 of the Constitution only over Courts and Tribunals falling within its territorial jurisdiction.
The Division Bench comprising Justice A.Muhamed Mustaque and Justice S Manu stated that NCDRC falls within the territorial jurisdiction of Delhi High Court and dismissed the petition as not maintainable under Article 227. “….a close reading and comprehensive analysis of the precedents leads us to the conclusion that this Court can exercise the jurisdiction under Article 227 only over those courts and tribunals situated within the territorial limits of this Court. Hence, over the NCDRC, falling falling within the territorial jurisdiction of the Delhi High Court, this Court has no supervisory jurisdiction under Article 227.”
Case Title: Ramesh VV v Jyothi Maruthiyodan
Citation: 2024 LiveLaw (Ker) 496
The Kerala High Court has held that an appellate Court cannot direct a party to deposit part of the amount covered by impugned verdict, as a prerequisite to condone the delay in filing the appeal.
The delay condonation plea and the appeal filed by the revision petitioner were dismissed by the Sessions Court citing non-compliance with its order to pay maintenance arrears.
Justice A. Badharudeen observed that it was legally impermissible for the First Appellate Court to impose a condition directing payment of any amount covered in the impugned appeal for considering the delay condonation petition.
Case Title: Saneesha M. S. v The Village Officers and Others
Citation: 2024 LiveLaw (Ker) 497
The Kerala High Court has held that 'Group of Companies' doctrine is not applicable when the third party is not even referred to the arbitration. The Supreme Court adopted the 'Doctrine of Group of Companies' in Cox and Kings Ltd. v SAP India Private Limited and Other (2023).
The Apex Court held that a non- signatory affiliate or a sister or parent company can be a party to the arbitration agreement, if there is mutual intention of the signatories and non-signatories to this effect. The Supreme Court observed that the non-signatory's casual connection with the negotiation and execution of the contract is a factor to determine the mutual intent to arbitrate.
Case Title: Kerala Pradesh School Teacher's Association v State of Kerala & Connected Cases
Citation: 2024 LiveLaw (Ker) 498
The Kerala High Court has quashed the decision of the Director of General Education in so far as it makes 25 Saturdays as working days out of 35 Saturdays in an academic year. The Court observed that the decision to implement a six day working week with Saturdays working was made without considering its adverse effects on the mental health of students.
In this case, several writ petitions were filed by teachers, their associations, students and parents challenging the competence of the Director of General Education by publishing the academic calendar for 2024-25 by making 25 Saturdays as school working days.
Justice Ziyad Rahman A.A. stated that the decision was taken without hearing the views of students, teachers, parents and other stakeholders. The Court observed that the decision was made without considering its advantages and disadvantages through any expert studies.
Case Title: Dhanya Sajith v M R Binoy Mathew
Citation: 2024 LiveLaw (Ker) 499
The Kerala High Court has stated that the untimely death of the husband is sufficient reason to condone 20 days delay in filing an application seeking leave under Section 394 of CrPC.
Section 394 of CrPC provides for abatement of criminal appeal on the appellant's death. As per the provision, near relatives can apply for leave to continue the appeal within 30 days of the death of the appellant against the sentence of death or imprisonment.
Here, the wife filed an application seeking leave to continue appeal after 50 days of her husband's death.
Case Title: Tomy T. J. v State of Kerala and Another
Citation: 2024 LiveLaw (Ker) 500
The Kerala High Court held that a Trial Court can compare the disputed handwriting and prove the handwriting of a person in a case where the accused had already admitted his signature in a cheque dishonour case.
In the present case, the accused was charged under Section 138 of the Negotiable Instruments Act and had claimed that while the signature on the offending cheque was his, the contents on the cheque were not filled by him.
Justice K. Babu invoked the trial court's power under Section 73 of the Evidence Act, and held: “Therefore if the accused makes a request for comparison of his admitted or proved writings with disputed writings, the Trial Court shall invoke Section 73 of the Evidence Act.”
Case Title: Pradeep Kumar v State of Kerala
Citation: 2024 LiveLaw (Ker) 501
The Kerala High Court has stated that serious offences alleged against the accused like rape cannot be quashed merely based on a settlement affidavit filed by the defacto complainant.
Justice A. Badharudeen dismissed the petition filed by the accused stating that whether the relationship was consensual or not were matters to be decided in a trial. It was held that: “Whether the relationship is consensual, is a matter to be decided during evidence and merely relying on the affidavit filed by the defacto complainant, this Court cannot quash the proceedings, holding that there are no materials, prima facie, to go for trial.”
Case Title: Sunil P P v State of Kerala
Citation: 2024 LiveLaw (Ker) 502
The Kerala High Court has dismissed a petition filed by a doctor and hospital staff who approached the Court to quash proceedings initiated against them for allegedly taking and sharing videos and images of a woman undergoing a cesarean operation to deliver three children, through WhatsApp.
The crime was registered against the doctors under Section 354(C) (Voyeurism) of IPC, Sections 66(E) (Punishment for violation of Privacy) and 67 (Punishment for publishing or transmitting obscene material in electronic form) of the Information Technology Act.
Justice A. Badharudeen observed that a prima facie case was made out against petitioners involving serious allegations.
Case Title: Prakash v Vandana
Citation: 2024 LiveLaw (Ker) 503
The Kerala High Court quashed a defamation case against media persons of Reporter Channel who aired a show called 'Big Story' that discussed a book about Mata Amritanandamayi and her Math. The Court stated that media persons can conduct discussions about books available in the public domain and doing so would only constitute fair comment or criticism, which falls under their freedom of speech.
Justice P.V.Kunhikrishnan noted that the book 'Holy Hell' is available on Amazon and other public domains, and it has also been translated into Malayalam. The Court stated that petitioners being media persons cannot be expected to stay mum and not discuss about a book available on the public domain. The Court also observed that if Mata Amritanandamayi Math or its devotees were not taking action against the author or publisher of the book, they could not pursue defamation claims against media personnel for discussing the book which is available on public domain.
Kerala High Court Alters Murder Conviction Of Ex-CPI(M) Leader Who Was Sentenced To Death
Case Title: State v R. Baiju
Citation: 2024 LiveLaw (Ker) 504
The Kerala High Court has set aside the death sentence awarded to former CPI(M) local leader and Chairman of Cherthala Municipal Standing Committee, R. Baiju convicted by the Additional Sessions Judge, Alappuzha of murdering Divakaran, a member of the Indian National Congress.
A division bench of Justice P. B. Suresh Kumar and Justice M. B. Snehalatha found that the charge of murder was not proved against him and held he could be found guilty of only culpable homicide not amounting to murder.
Kerala Toddy Workers Welfare Fund, Employee Of Licensee, Not An Employer: Kerala High Court
Case Name: C K Ssidharan v The Welfare Fund Inspector & Another
Citation: 2024 LiveLaw (Ker) 505
A single judge bench of the Kerala High Court, comprising Justice Dinesh Kumar Singh, while deciding writ petitions held that an employee who is merely associated with the conduct of business and not in a position to employ others on his own behalf, cannot be said to be an employer.
The definition of “employer” under Section 2© of the Kerala Toddy Workers Welfare Fund Act, 1969 was examined by the court. It was noted that the definition included any person who employs, directly or indirectly, other persons in the establishment. However, it was concluded by the court that the employee did not meet this definition since he was merely an employee and not in a position to employ others on his own behalf.
Based on the above findings, the writ petitions were allowed. The impugned orders that held the employee liable for the welfare fund contributions were set aside by the court. It was concluded that he was merely an employee and not an employer, as defined under the Kerala Toddy Workers Welfare Fund Act, 1969.
Other Important Developments This Week
Police Officer In Kerala Accused In Passport Fraud Case; Matter To Be Investigated By Crime Branch
Case Title: Ansil v State of Kerala
Case No: BA 5853 of 2024
The probe into alleged involvement of two Kerala police officials in a passport fraud will be probed by the Crime Branch, the High Court was told on Friday.
Anzil A., an officer in Thumba Police Station, Trivandrum was booked for hatching a conspiracy with 4 other persons to obtain passports for various persons using forged documents.
Case Title: P. V. Jeevesh v Union of India and Others
Case No.: WP(C) 19240/2024
While hearing a PIL challenging Hindi titles for the new criminal laws, the Kerala High Court today asked if it has the power to direct the Parliament to change the names of the enactments.
The Division Bench comprising Acting Chief Justice A. M. Mustaque and Justice S. Manu while reserving the matter for orders orally remarked, “Can this Court direct the Parliament to rename the enactments…Can this Court issue mandamus saying that, sort of mandamus…like specific order to change title of the Act?”
Justice CS Dias adjourned Anzil's bail plea after Public Prosecutor informed the Court that the matter is now being investigated by Crime Branch.
Case Name: Dr. Mathew A. Kuzhalnadan v Pinarayi Vijayan and Others
Case No: Crl. Rev. Pet. 588/2024
The Kerala government has informed the High Court that Chief Minister Pinarayi Vijayan received no personal gains from the transactions between State-owned Cochin Minerals and Rutile Limited (CMRL) and Exalogic Solutions, a company owned by his daughter Veena Thaikandiyil.
Director General of Prosecution TA Shaji informed single bench of Justice K. Babu that the transactions were based on a "legal agreement" between the two companies, all properties in relation to the transactions were "legally accounted for" and the CM received no money therefrom.
Case Title: Adv N Sasi And Others v Union of India
Case Number: WP(C) NO. 24095 OF 2024
The Kerala High Court has directed the Debt Recovery Tribunal Advocates Association, the Union Government, and the Registrar of DRT to submit statements with their suggestions on how to best utilize the available space for the benefit of lawyers practising in DRT, Ernakulam
Justice V G Arun directed the parties to specifically address the issue of providing toilet facilities for female lawyers practising in the DRT.
Wayanad Landslides: Kerala High Court To Hold Full Court Reference To Condole Loss Of Lives
The Kerala High Court will hold a reference on 2nd August at 10:15 am to condole the large-scale loss of lives and to express solidarity with the survivors who lost their homes and family members in the landslides in Wayanad. The reference will be held in the court of the Chief Justice.
The Kerala High Court today held a Full Court reference to express condolences for the loss of lives and to show support to the survivors of the landslides in Wayanad, which affected the areas of Mundakkai and Choormala. The death toll from the disaster is nearing 300, with several persons still missing. The Acting Chief Justice A. Muhamed Mustaque expressed his collective solidarity and unwavering support with the victims and survivors of Wayanad landslide that took place in the wee hours of July 30, 2024.
“Today as we pay homage to the victims we acknowledge the unfathomed loss experienced by their families and friends. Each life loss represents a unique story, a beloved member of a family, a cherished friend and a vital being out to the community.”