Despite the State having been affected by the COVID-19 pandemic for the second year running and the Court functioning on virtual mode until very recently, the Kerala High Court managed to issue quite a few crucial judgments this year. Here are 25 handpicked key judgments delivered by the Kerala High Court in 2021:1. Marital Rape A Valid Ground For Divorce[X v. Y]A Division Bench of Justice...
Despite the State having been affected by the COVID-19 pandemic for the second year running and the Court functioning on virtual mode until very recently, the Kerala High Court managed to issue quite a few crucial judgments this year. Here are 25 handpicked key judgments delivered by the Kerala High Court in 2021:
1. Marital Rape A Valid Ground For Divorce
[X v. Y]
A Division Bench of Justice A. Muhamed Mustaque and Justice Kauser Edappagath in a significant judgment upheld that marital rape, although not penalised in India, is a good ground to claim divorce although the law does not recognise marital rape under penal provisions. The Court while empathising with the situation of the woman observed that a husband's licentious disposition disregarding the autonomy of the wife is marital rape, albeit such conduct cannot be penalised, it falls in the frame of physical and mental cruelty.
2. Muslim Women Entitled To Invoke Extra-Judicial Divorce
[X v. Y and other connected matters]
Overruling a 49-year-old judgment that barred Muslim women from resorting to extrajudicial modes of dissolving marriage, a Bench of Justice A. Muhamed Mustaque and Justice C.S Dias upheld the validity of these modes, finding that the Dissolution of Muslim Marriages Act did not contemplate the undoing of the extra-judicial divorce modes available to women under personal law. The Court also specially instructed Family Courts not to adjudicate upon extra-judicial divorce unless it was called upon to do so in an appropriate manner since the Courts were overburdened with a large number of cases.
3. COVISHIELD To Be Administered Only After Prescribed Dose Interval Of 84 Days
[Secretary to Government of India v. Kitex Garments Ltd & Ors]
In a momentous move, a Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly allowed the appeal preferred by the Central Government against the Single Judge decision allowing the second dose of COVISHIELD to be administered prior to the prescribed interval of 84 days. The Court ruled that expert advice on the basis of scientific study cannot be substituted by a judgment of Constitutional Courts, especially when no materials are produced before the Court to show that the scientific advice given to the Government was hasty, bad or ill-advised.
4. Rummy A Game Of Skill: Ban On Online Rummy Lifted
[Head Digital Works Pvt. Ltd v. State of Kerala & Ors]
Justice T.R Ravi while lifting the ban on Online Rummy in the State clarified that online rummy played either with stakes or without stakes remains to be a 'game of skill'. The Court further added that Rummy will not come under "gambling" since "gambling" can only be on a game of chance and that the notification prohibiting Online Rummy played for stakes was not a reasonable restriction under Article 19(6) of the Constitution of India. It was thereby declared arbitrary, illegal and violative of the fundamental rights guaranteed to the petitioners under Articles 14 and 19(1)(g) of the Constitution of India and hence not enforceable.
5. Wedding Gifts From Parents For Daughter's Welfare Not Dowry
[Vishnu R. v. State of Kerala & Ors.]
Justice M.R. Anitha ruled that presents given to the bride by her parents at the time of her marriage for her welfare will not count as dowry under the ambit of the Dowry Prohibition Act, 1961 if no demand was made on that behalf. It was also elucidated that such gifts should also have been entered in a list maintained in accordance with rules made under this Act to not come within the purview of Section 3(1) of the Act which prohibits giving or taking of dowry.
6. Swap Transplants Permissible Even If Donor-Recipients Not Near Relatives
[Moideenkutty & Ors v. District Level Authorisation Committee for Transplantation of Human Organs]
In a crucial judgement concerning organ transplantation laws in India, Justice N. Nagaresh ruled that swap transplants, with prior approval of the Authorisation Committee, are permissible even if each pair of donor- recipients are not near relatives, provided there exists a special reason for the donor to donate their organ. It was noted that Section 9(3) of the Transplantation of Human Organs and Tissues Act unambiguously permits the same and thereby rendered inoperative the head 'Swap Donation' in the State Guidelines for Altruistic and Exchange Donation to the extent it permits Swap Donations only between near relatives.
7. Son-In-Law Has No Legal Right In Father-In-Law's Property
[Davis Raphel v. Hendry Thomas]
While dismissing a second appeal with costs, Justice N. Anil Kumar ruled that a son in law cannot have any legal right in his father in law's property and building, even if he has spent an amount for the construction of the building. The Court went to the extent of observing that when the father-in-law is in possession of the property, the son-in-law cannot plead that he had been adopted as a member of the family. It was reiterated that the residence of son-in-law, if any, in the building is only permissive in nature.
8. Unequal Treatment Of Wives A Valid Ground For Divorce For Muslim Women
[Ramla v. Abdul Rahuf]
A Division Bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas ruled that the refusal of a Muslim man to perform his marital obligations with his first wife after a second marriage is a good ground for divorce. It was further held that if there exists a marriage with another lady during the subsistence of the previous marriage, the burden is on the husband to prove that he had treated both wives equitably in accordance with the injunctions of Quran.
9. Settlement Via Marriage Not A Ground To Quash Proceedings Against Rape Accused Under POCSO
[Rahul P.R & Anr. v. State of Kerala]
In a noteworthy ruling, Justice V. Shircy held that a compromise of marriage between the parties is not a ground to quash the criminal proceedings against the accused under the provisions of POCSO. The Court found that rape is not only an offence committed towards the victim but it also causes a grave impact upon her relatives and society as a whole. Considering the gravity of the crime, it was decided that a settlement between the parties will not excuse the accused from judicial scrutiny.
10. Article 21 Applies Till One's Body Is Cremated
[Kerala Medico-Legal Society & Anr. v. Government of Kerala & Ors.]
While directing the State government to supply adequate facilities and staff in all the Government Medical Colleges in the State to facilitate the conduct of night autopsies, Justice P.V. Kunhikrishnan observed that Article 21 of the Constitution is not only available to a living man but also to his dead body. It was also held that a decent burial of a dead body immediately after death if intended by the kith and kin of the deceased is far more important than legal formalities to be conducted if it is an unnatural death.
11. Bar Associations Should Verify With Bar Council Before Admitting New Members
[Sessy Xavier v. State of Kerala & Ors.]
While denying pre-arrest bail to Sessy Xavier who practised as an Advocate for over two years without enrolment, Justice Shircy V observed that it is advisable that Bar Associations verify with the Bar Council before admitting new members to prevent such incidents in future. The Bench also noted that the lawyers' profession is considered to be one of the noblest professions and that misrepresenting as an Advocate before a client and obtaining a brief itself would amount to cheating the public.
12. Penetrative Sexual Act Between The Thighs Of Victim Held Together Is Rape U/S 375 IPC
[Santhosh v. State of Kerala]
A Division Bench of Justice K. Vinod Chandran and Justice Ziyad Rahman A. A held that when the body of the victim is manipulated to simulate a sensation akin to penetration of an orifice, the offence of rape is attracted. It was thus observed that when penetration is made in between the thighs so held together, it would certainly amount to "rape" as defined under Section 375 since it was an act of manipulation of the body of the victim to obtain sexual gratification if culminated in ejaculation.
13. Consuming Liquor In Private Place Without Causing Nuisance Not An Offence
[Salim Kumar B.S. v. State of Kerala & Anr.]
While quashing the proceedings pending against the petitioner before a Judicial Magistrate, Justice Sophy Thomas ruled that consuming alcohol in a private place does not constitute an offence under Section 118(a) of the Kerala Police Act as long as they do not cause any nuisance or annoyance in the public. The Court also clarified that the mere smell of alcohol cannot be construed to mean that the person was intoxicated or was under the influence of any liquor.
14. No Person Supposed To Share Driver's Seat In 3 Wheeler Goods Carriage
[Bajaj Allianz General Insurance Co. Ltd v. Bheema & Anr.]
Justice A. Badharudeen held that in a three-wheeler goods carriage, no other person whether a passenger or the owner of the vehicle is supposed to share the seat of the driver and any such action is a violation of the insurance policy conditions and that such persons would be considered as gratuitous passengers. Observing so, the Court set aside the liability fastened on the insurance company by the Motor Vehicles Tribunal to compensate such a passenger.
15. Agreement Clauses That Prohibit Keeping A Pet In Residential Units Illegal, Unenforceable In Law
[People For Animals v. State of Kerala & Ors.]
A Division Bench of Justice A.K. Jayasankaran Nambiar and Justice Gopinath P. established that clauses in a bye-law or an agreement that prohibit a person from keeping a pet in their residential premises shall be void and unenforceable in law. Consequently, resident owners' associations and resident welfare associations were directed to desist from putting up notice boards and signposts prohibiting the keeping or entry of pets in their respective premises.
[Sadhiya Siyad v. State of Kerala & Ors.]
Justice P.B. Suresh Kumar held that a medical graduate from a foreign university who has fulfilled all requisite qualifications as per the norms prevailing in that country to become eligible to be enrolled as a medical practitioner therein, need not undergo another internship in the State to be registered with the State Medical Council to practice Medicine in terms of the Travancore Cochin Medical Practitioners Act, 1953. However, it was clarified that the Council may persuade foreign medical graduates to undergo internships for diseases and treatments peculiar to the State.
17. Driving Slow But Recklessly Amounts To Rash & Negligent Driving
[Suo Motu v. Travancore Devaswom Board & Ors]
A Division Bench of Justice Anil K. Narendran and Justice P.G Ajithkumar ruled that driving a vehicle in a reckless and negligent manner even if it is done at a low speed, would still amount to 'rash and negligent driving' under Section 279 of the Indian Penal Code (IPC). The Court further observed that a person driving a vehicle on the road is liable to be held responsible for the act as well as for the result and that it may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently.
18. Plea Seeking Removal Of Prime Minister's Photograph From Covid-19 Vaccination Certificate Dismissed With 1 Lakh Cost
[Peter Myaliparampil v. Union of India & Anr.]
Justice P.V. Kunhikrishnan dismissed the plea challenging the photograph of Prime Minister Narendra Modi being affixed on the vaccination certificates issued to citizens upon being vaccinated against Covid-19 and imposed a hefty cost of Rs. one lakh on the petitioner. The Court also noted that filing such frivolous cases was a waste of judicial time while adding that it is the duty of the citizens to respect the Prime Minister of India.
The Kerala High Court on Friday quashed orders of the Kerala Government announcing scholarships to Muslim students and Latin Catholic/Converted Christians in the ratio 80:20.
Declaring that the orders could not be legally sustainable, Justice Shaji P Chaly, speaking for the Bench of himself and Chief Justice Manikumar directed the State to provide merit-cum-means scholarships to members of notified minority communities equally.
"We hereby direct the State Government to pass requisite and appropriate Government Orders providing merit-cum-means scholarship to the members of the notified minority communities within the state equally, in accordance with the latest population census available with the State Minority Commission", the operative part of the judgment states.
With this, the Court allowed a petition filed by lawyer Justine Pallivathukal. The petition alleged that the State Government was giving undue preference to the Muslim Community over the members of other minority communities in the state.
The Supreme Court is at present considering the state's appeal against this judgment.
20. Father Legally Bound To Provide Maintenance To Child Born Out Of Interfaith Marriage
[J.W. Aragadan v. Hashmi N.S & Anr.]
In a significant decision, a Division Bench comprising Justice A. Muhamed Mustaque and Justice Kauser Edappagath ruled that a father is legally obligated to provide maintenance for his child born out of an inter-faith marriage. It was observed that caste, faith or religion cannot have any rational basis for determining the parental duty of a father. All the children have to be treated alike irrespective of the faith or religion professed by the parents.
[Shankara Bhat v. State of Kerala & Ors]
Justice Sunil Thomas ruled that for offences like falsification of accounts, breach of trust and misappropriation of funds or acts which are ex facie criminal, no prior approval as prescribed under section 17A of Prevention of Corruption Act is required. It was recorded that noted that scope of section 17A is specifically confined to "any recommendation made or decision taken by public servant" which alone falls within the protection under section 17A.
[Radhakrishna Pillai v. District Level Authorization Committee for Transplantation of Human Organs]
Justice P.V. Kunhikrishnan ruled that the criminal antecedents of a donor are not criteria to be considered by the authorization committee for transplantation of human organs. The Court observed that there is no organ in the human body like a 'criminal kidney' or 'criminal liver'. and that there was no difference between the organ of a person without a criminal antecedent and the organ of a person who has no criminal antecedents.
[X. v Principal Secretary, Local Self Government Department]
Justice Raja Vijayaraghavan V directed the State and concerned authorities to take steps to ensure that economically weak students are not sidelined by the digital divide and that they are also able to pursue education like other children who have access to such gadgets. The court also inquired regarding the prospects of putting up a website with the assistance of the IT mission where schools/needy students could get themselves registered so that individuals/Companies/NRI's/NGO's could voluntarily contribute to the purchase of phones/ digital gadgets or supply them.
[X v. State of Kerala & Ors]
Justice Sathish Ninan held that requiring single women, who conceived through Assisted Reproductive Technologies, to furnish the father's name for registering the births and deaths of their children necessarily affects the right of dignity of the mother as well as the child. As such, the Court directed the State to immediately take necessary steps to provide separate forms for registration of births and deaths and for issuance of certificates for children born out of such conceptions.
25. Article 25 Does Not Exempt Salaries Of Nuns & Priests Working As Teachers From TDS
[Provincial Superior, Nirmal Rani Provincial House v. Union of India]
Upholding the rider of a Single Bench, a Division Bench of Justice S.V Bhatti and Justice Bechu Kurian Thomas ruled that salaries paid to nuns and priests of religious congregations, working as teachers in educations institutions are liable for tax deduction at source while dismissing a batch of nearly 50 writ appeals. The Court further noted that Article 25 does not provide any immunity from taxation on the basis of religion.
After a series of elaborate hearings, the Kerala High Court on Wednesday delivered its judgment in a plea moved by a minor girl who, along with her father, were harassed by a pink police officer in a public road, casting accusations of theft on the duo. (Pink police is a special women protection squad of Kerala police).
While granting compensation to the girl, a single bench of Justice Devan Ramachandran in its decision recorded:
The Court placed reliance on the decision of Nilabati Behera v. State Of Orissa where it was held unequivocally that compensation under public law is an acknowledged remedy, and noted that this salutary principle had stood the march of time. The Judge further pointed out that the Apex Court had granted a hefty compensation amounting to Rs. 1 crore to Nambi Narayan on the very same principle.