Kerala High Court Weekly Round Up: February 14 To February 19, 2022

Citations: 2022 LiveLaw (Ker) 78 - 2022 LiveLaw (Ker) 91

Nominal Index

Beena M.S v. Shino G. Babu, 2022 LiveLaw (Ker) 78

State of Kerala v. Binu Sebastian & Ors, 2022 LiveLaw (Ker) 79

Anoop K.A & Anr. v K.R Jyothylal & Ors, 2022 LiveLaw (Ker) 80

S. Surendran v. Director General of Central Industrial Security Force & Anr, 2022 LiveLaw (Ker) 81

Devarajan v State of Kerala, 2022 LiveLaw (Ker) 82

Joint Registrar (General) of Cooperative Societies & Anr. v. Charley Panthallookaran & Anr, 2022 LiveLaw (Ker) 83

Smitha v. State of Kerala & Ors, 2022 LiveLaw (Ker) 84

Abhijith v. State of Kerala, 2022 LiveLaw (Ker) 85

J. Rajendran Pillai v. B. Bhasi & Ors, 2022 LiveLaw (Ker) 86

Teena v State of Kerala, 2022 LiveLaw (Ker) 87

HDFC Bank Ltd. v. Debts Recovery Tribunal & Ors, 2022 LiveLaw (Ker) 88

Suo motu case, 2022 LiveLaw (Ker) 89

Alli Noushad v. Rasheed & Anr, 2022 LiveLaw (Ker) 90

X v. Y,  2022 LiveLaw (Ker) 91

Judgments This Week

1. Spouse Refusing To Accord Divorce On Mutual Consent Despite Being Convinced That Marriage Failed Amounts To Cruelty : Kerala High Court

Case Title: Beena M.S v. Shino G. Babu

Citation: 2022 LiveLaw (Ker) 78

The Court has held that if one of the spouses is refusing to accord divorce on mutual consent despite being convinced of the fact that the marriage has failed, it is nothing but cruelty to the other spouse.A Division Bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas noted that once the court is able to form an opinion that due to incompatibility, the marriage failed and one of the spouses was withholding consent for mutual separation, it can very well treat that conduct itself as cruelty.

2. K-Rail Silverline Project | Kerala High Court Sets Aside Single Judge Order Staying Land Survey

Case Title: State of Kerala v. Binu Sebastian & Ors

Citation: 2022 LiveLaw (Ker) 79

The Court set aside an interim order issued by a Single Judge directing the State to defer steps for the survey taken in furtherance of its K-Rail Silver Line project of the writ petitioners' properties until the matters are considered again in February. A Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly allowed a batch of appeals filed by the State noting that Social Impact Assessment cannot be seen as an empty formality and that the public is entitled to know the adverse impact and consequences they are likely to suffer.

3. Kerala High Court Directs State Police, Motor Vehicle Dept. To Take Strict Action Against Overloading, Misuse Of Govt Boards On Vehicles

Case Title: Anoop K.A & Anr. v K.R Jyothylal & Ors.

Citation: 2022 LiveLaw (Ker) 80

The Court has directed the State Police and Enforcement Officials of the Motor Vehicles Department to initiate stringent measures against vehicle drivers/owners found disregarding the Road Safety Policy guidelines, particularly against those who overload their vehicles or use a government nameplate without the requisite authorisation. Justice Anil K Narendran issued certain directions to reinforce the strict implementation of the Road Safety Policy, Motor Vehicles Act and the Motor Vehicles (Driving) Regulations in the State as directed by the Supreme Court Committee on Road Safety.

4. Wife & Children Being Employed Not A Ground To Disregard Special Consideration For Compassionate Allowance : Kerala High Court

Case Title: S. Surendran v. Director General of Central Industrial Security Force & Anr.

Citation: 2022 LiveLaw (Ker) 81

The Court recently ruled that a government servant who was dismissed from service may not be denied special consideration for compassionate allowance merely for the reason that his wife and children are employed. While allowing a writ petition, Justice V.G. Arun found that although a government servant removed from service is not entitled to pension/ gratuity, the competent authority can sanction compassionate allowance in cases deserving special consideration.

5. Kerala High Court Issues Directions To Be Followed By Trial Courts While Sentencing

Case Title: Devarajan v State of Kerala

Citation: 2022 LiveLaw (Ker) 82

The Court has recently issued a set of recommendations to be observed by trial courts while sentencing the accused in criminal matters. The guidelines were issued by a Division Bench of Justice K. Vinod Chandran and Justice C. Jayachandran while allowing a criminal appeal, thereby reversing the conviction and sentence imposed by a Sessions Judge on the appellant for murder.

6. Kerala Co-operative Societies Act | Section 68(1) Includes Inquiry Conducted By Vigilance Officer : High Court

Case Title: Joint Registrar (General) of Cooperative Societies & Anr. v. Charley Panthallookaran & Anr.

Citation: 2022 LiveLaw (Ker) 83

The Court recently held that an inquiry under Section 68(1) of the Kerala Co-operative Societies Act includes the inquiry conducted by the Vigilance Officer appointed under Section 68A of the Act, and that it does not have to be necessarily be done by the Joint Registrar (General) of Cooperative Societies himself. Justice P.B. Suresh Kumar and Justice C.S. Sudha added that merely for the reason that an inquiry under Section 65 can be conducted by the Registrar directly, such a report under Section 65 cannot be placed in a better pedestal than an inquiry conducted by the Vigilance Officer.

7. Principle Of Locus Standi Alien To Criminal Law, Magistrate Can't Return Complaint Merely Because It Was Filed By Complainant's Wife: Kerala HC

Case Title: Smitha v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 84

The High Court recently ruled that a Magistrate cannot return a complaint merely on the ground that it was filed by the wife of the complainant. Justice K. Haripal also emphasised that criminal law can be set in motion by anyone and that principle of locus standi does not apply in criminal jurisprudence. 

8. Merely Keeping Tobacco Products At One's Residence Not An Offence: Kerala High Court

Case Title: Abhijith v. State of Kerala

Citation: 2022 LiveLaw (Ker) 85

The Court has recently ruled that mere keeping of tobacco products at one's residence does not attract any offence per se. Holding so, Justice Kauser Edappagath allowed a petition filed by an accused who was charged for storing a collection of tobacco products at his residence, allegedly to sell to children. Since there is no prosecution case that the petitioner had given or caused to be given tobacco products to any minor child, charges under Section 77 of the JJ Act were also dropped.

9. When Can A Co-Owner Maintain An Injunction Suit To Protect His Co-Ownership Right Over Property? Kerala High Court Enumerates

Case Title: J. Rajendran Pillai v. B. Bhasi & Ors.

Citation: 2022 LiveLaw (Ker) 86

The Court has recently laid down the instances when a co-owner can maintain a suit for injunction to protect his co-ownership right over a property. Justice A. Badharudeen was adjudicating upon a matter where one co-owner was attempting to construct a building in the co-ownership property during the pendency of the final decree proceedings before a trial court. The Court found that construction could not be permitted without the knowledge or consent of other co-owners and added that such construction may cause prejudice to the right of enjoyment of the other co-owners as they wish on separation of shares.

10. 'When A Woman Kills Her Progeny, There's More Than Meets The Eye' : Kerala HC Acquits Mother For Allegedly Killing 9 Yr Old Son

Case Title: Teena v State of Kerala

Citation: 2022 LiveLaw (Ker) 87

'God could not be everywhere and therefore he made mothers', quoted the High Court while reversing the trial court's conviction of a woman who was accused of killing her 9-year-old son in an attempt to avenge her disturbed marital life. A Division Bench of Justice K. Vinod Chandran and Justice C. Jayachandran observed that in such cases, there is often more than meets the eye, which sensitivity often the investigators lack. It was also held that the prosecution had failed to establish guilt beyond all reasonable doubt and that the trial court had erred in the marshalling of facts and scrutiny of evidence.

11. 'Central Govt Has Shown Scant Regard To Hardships Of Litigants': Kerala High Court On Absence Of DRT Presiding Officer

Case Title: HDFC Bank Ltd. v. Debts Recovery Tribunal & Ors.

Citation: 2022 LiveLaw (Ker) 88

The Court recently expressed serious concerns regarding the non-availability of the adjudicatory mechanism of Debts Recovery Tribunal in the State for over ten months despite its efforts to kick start its functioning. Justice Bechu Kurian Thomas observed that when the fundamental right to have access to justice is denied due to the absence of Presiding Officers of the forum created under a statute, the aggrieved are entitled to approach the High Court.

12. Duty Of Courts To Safeguard Properties Of Religious Institutions From Wrongful Claims: Kerala High Court

Citation: 2022 LiveLaw (Ker) 89

The Court held that it is the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation. Observing so, a Division Bench of Justice Anil K. Narendran and Justice P.G Ajithkumar withdrew the permission granted by the Travancore Devaswom Board to a Delhi-based trust to organise a nine-day-long 'Ramakatha' recital programme at Pamba area, encroaching upon the pilgrimage path to the Sabarimala temple.

13. Marital Confidence U/S 122 Of Evidence Act Jeopardises Public Interest, Requires A Revisit: Kerala High Court

Case Title: Alli Noushad v. Rasheed & Anr.

Citation: 2022 LiveLaw (Ker) 90

The Court observed that Section 122 of the Evidence Act requires a revisit since it was a legal weapon used by criminals to suppress their crimes, thereby affecting public interest. The said provision recognises the age-old concept of marital confidence, where all communications between spouses during the wedlock are considered sacrosanct. While appreciating the sacrosanctity attached to communications between spouses as laid down by the English Commission of Common Law Procedure report in 1853, Justice K. Vinod Chandran and Justice C. Jayachandran observed that perhaps it was time to reconsider the stand in the light of modern times.

14. Wife Making Frequent Discreet Phone Calls To Another Man At Odd Hours Despite Husband's Warning Is Matrimonial Cruelty: Kerala High Court

Citation: 2022 LiveLaw (Ker) 91

While granting a decree of divorce to a couple, the Court recently ruled that a wife making secret phone calls to a man ignoring her husband's warning against the same amounts to matrimonial cruelty. Justice Kauser Edappagth in his judgment also observed that mere compromise would not amount to condonation of cruelty unless and until the matrimonial life was restored.

Other Developments

15. Plea Before Kerala High Court Accuses State Electricity Board Of Illegally Creating Massive Financial Liabilities On Consumers

Case Title: Kerala High Tension & Extra High Tension Industrial Electricity Consumers' Association v. State of Kerala 

A Public Interest Litigation (PIL) has reached the Court alleging that the Kerala State Electricity Board is running on heavy loss due to its unjustified salary structure which is thereby causing the liability to be passed on to the consumers. A Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly admitted the PIL filed by Kerala High Tension & Extra High Tension Industrial Electricity Consumers' Association.

16. Actor Dileep Approaches Kerala High Court Seeking To Quash FIR In Murder Conspiracy Case

Case Title: P. Gopalakrishnan alias Dileep & Ors v. State of Kerala & Anr.

Malayalam actor Dileep has approached the Court yet again, seeking to quash the FIR filed by the Crime Branch of Kerala Police against him and five others for allegedly conspiring to murder the investigation officials in the 2017 actor rape case, in which Dileep is facing trial as the chief conspirator. The plea filed through Advocate Philip T. Varghese has accused the filing of the impugned FIR as a vindictive, ill-motivated, pre-determined and malafide act executed with oblique motives.

17. Public Prosecutor, DGP Write To Kerala HC Registrar General Accusing Counsel Of Submitting Forged Printout Of Case Status

Additional Public Prosecutor P Narayanan along with the DGP has penned a letter to the Registrar General of Kerala High Court accusing a counsel of the Court of forging a case status. On the day the accused was arrested, his counsel approached the Station House Officer alleging that there was an interim order passed by the Court prohibiting coercive steps in the matter. It is alleged that upon enquiry through the Registry, it was confirmed that no such interim order had been issued by the High Court in the said bail application.

18. Actor Assault Case: Survivor Seeks To Be Heard In Dileep's Plea Before Kerala High Court Against Further Probe

Case Title: P. Gopalakrishnan alias Dileep v. State of Kerala & Anr

The plot thickens in the 2017 sexual assault case as developments ensued before the Court as the survivor in the case filed an impleading petition in the plea moved by actor Dileep seeking to suspend further investigation into the 2017 case. Upon the actress seeking to be heard in the matter, Justice Kauser Edappagath adjourned the case to be called on February 21.

19. Kerala High Court Lawyers Stage Protest Against Proposal To Amend Civil Rules Of Practice, Limit Advocates' Fees

In a major setback for the legal fraternity in Kerala, the Additional Chief Secretary to Government has recently addressed a letter to the Chairman of Kerala Bar Council with a proposal to amend the Rules regarding fees payable to Advocates in the State. Members of the State Bar Council and the Kerala High Court Advocates Association had declared an All Kerala Protest Day on 17th February to mark their protest against the proposed amendments by wearing protest badges while appearing before the court.

20. COVID-19 | Kerala High Court To Continue Virtual Hearings For One Month Or Till TPR Drops To 10%

Through a notice issued by the Registrar General, the Court has notified its decision to continue virtual hearing of cases amid the steady hike of Covid-19 cases in the State. The notice further declared that the earlier arrangements of online hearing will continue for a month or until the Test Positivity Rate drops below 10 per cent, whichever is earlier. At present, the TPR in the State is over 15%.

21. 'Counterblast To Disclosure Against Dileep' : Director Balachadrakumar Moves Kerala High Court Seeking Pre-Arrest Bail In Rape Case

Case Title: P. Balachandrakumar alias Balu v. State of Kerala

Malayalam film director Balachandrakumar has moved the Court seeking anticipatory bail apprehending arrest in a case where he has been accused of raping a woman in 2010 and recording the incident on his cellphone. The director has been charged under Section 376 (i) of IPC (sexual assault) and Section 66 E of the Information Technology Act (violation of privacy).

22. 'Advocate Clerks Reduced To Marginal Players In Legal System': Plea Before Kerala High Court Seeks Their Involvement In E-Filing Procedure

Case Title: Prathap P. v. State of Kerala

A plea has been moved in the Court seeking the inclusion of advocate clerks in the new regime of Electronic Filing Rules for Courts (Kerala), 2021 and digitalised procedures. Justice N. Nagaresh on Friday admitted the case. The petitioner, who is an advocate clerk himself, has alleged that the introduction of e-filing procedure in the Courts across the State has brought in an adverse impact on the fundamental rights of the clerks guaranteed under Article 14, 19 (1) g and 21 of the Constitution.

23. Kerala High Court Asks State To Put A Hold On Its Proposal To Amend Advocate Fee Rule

The Court has decided to request the State government hold off on its proposal to amend the Kerala Advocate Fee Rule till the Court's Rule Committee comes to a conclusion on the same. The intimation was made through a notice issued by the Registrar General of the High Court on Friday, which came as a huge relief to the lawyering community in the State. The notice stated that the Rule Committee had now fixed its meeting on 22 February to consider the matter after consultation with the representatives of the Bar.