Kerala High Court Weekly Round-Up: August 15 To August 21, 2022

Nominal Index [Citation 2022 LiveLaw (Ker) 432-446]

 K.J. Varghese v. State of Kerala & Ors. 2022 LiveLaw (Ker) 432

xxxxxxx v. xxxxxxxxxx 2022 LiveLaw(Ker) 433

Basil George v. Shaji Salim & Ors.  2022 LiveLaw (Ker) 434

 Gaurav Tewari v. Union of India 2022 LiveLaw (Ker) 435

Abhilash Kumar R. & Ors. v. Kerala Books and Publication Society & Ors. 2022 LiveLaw (Ker) 436

Salikuttan N. v. State of Kerala & Ors. 2022 LiveLaw (Ker) 437

Santhosh Kumar v. State of Kerala & Ors. 2022 LiveLaw (Ker) 438

XXXXXXXXXX v. Union of India & Ors. 2022 LiveLaw (Ker) 439

Swapna Prabha Suresh v. State of Kerala 2022 LiveLaw(Ker) 440

Mathew Daniel v. Leena Mathew 2022 LiveLaw(Ker) 441

Pauly Vadakkan v. Corporation of Cochin 2022 LiveLaw (Ker) 442

Shybu B. v. Sajeev 2022 LiveLaw (Ker) 443

Shibu & Anr v. Sreekumaran & Anr.  2022 LiveLaw (Ker) 444

M. P. Chothy v. Registrar General & Ors. 2022 LiveLaw(Ker) 445

Flemingo Duty Free Shop Private Ltd. versus Airports Authority of India  2022 LiveLaw(Ker) 446

Judgements/Orders This Week

Reservations For Differently Abled Should Be Implemented In Aided School Appointments: Kerala High Court

Case Title: K.J. Varghese v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 432

The Kerala High Court recently held that the reservations earmarked for persons with disabilities should be enforced in educational institutions aided by the government during their recruitment process. The Court further held that appointments made post-2018 shall not be implemented unless such reservations were awarded.

While clarifying that approval of appointments already granted shall not be unsettled, Justice Raja Vijayaraghavan V. added that the right of reservation in employment conferred to the disabled under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 and the Rights of Persons With Disabilities Act 2016 cannot be taken away by placing stumbling blocks.

Preservation Of Unworkable Marriage Causes Great Misery, Marital Bond Should Be Severed On Irretrievable Breakdown : Kerala High Court

Case Title: xxxxxxx v. xxxxxxxxxx

Citation: 2022 LiveLaw(Ker) 433

The Kerala High Court recently, while dismissing a Matrimonial Appeal, observed that when a marriage has broken down beyond repair, the law should take notice of the fact as refusing to serve the legal tie of such marriages would be injurious to the interest of the parties as well as the society.

Division Bench, Consisting of Justice Anil K Narendran and Justice C S Sudha observed that nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist.

Husband's Repeated Taunts, Comparisons With Other Women Qualify As Mental Cruelty: Kerala High Court

Case Title: xxxxxxxx v. xxxxxxxxxx

Citation: 2022 LiveLaw(Ker) 433

The Kerala High Court recently observed that constant and repeated taunts of the husband that his wife did not meet his expectations and comparisons with other women would amount to mental cruelty as contemplated under Section 10(x) of the Divorce Act, 1869 for the purpose of dissolution of marriage.

A Division Bench of Justice Anil K Narendran and Justice C. S. Sudha observed that for the conduct of a spouse to fall within the ground of cruelty, it should be 'grave and weighty' to the extent that the petitioner's spouse cannot be reasonably expected to live with the other spouse, and should be serious that "ordinary wear and tear of married life".

Can An Elector Seek To Be Impleaded In An Election Petition? Kerala High Court Answers

Case Title: Basil George v. Shaji Salim & Ors.

Citation: 2022 LiveLaw (Ker) 434

The Kerala High Court last week ruled that an elector has a limited right to get impleaded in an election petition and that such right can only be exercised if all the relevant provisions under the Kerala Municipality Act are complied with.

Upon analysing the provisions of the Municipality Act and the declaration of law by the Supreme Court, Justice C.S. Dias took the view that the ring is closed for a ranked outsider to get himself impleaded in an election petition if his aspiration is beyond the scheme of the Act.

Kerala High Court Urges Authorities to Expedite Action To Mitigate Human-Wildlife Conflicts

Case Title: Gaurav Tewari v. Union of India

Citation: 2022 LiveLaw (Ker) 435

The Kerala High Court recently asked the concerned authorities to speed up the process of implementing the guidelines proposed to deal with human-animal conflict in the State.

A Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly observed that though proposals had already been introduced to deal with the issue, they were yet to be implemented in practice.

Pension Is Deferred Salary, Right To Pension A Constitutional Right: Kerala High Court

Case Title: Abhilash Kumar R. & Ors. v. Kerala Books and Publication Society & Ors.

Citation: 2022 LiveLaw (Ker) 436

The Kerala High Court recently held that the right to pension is a constitutional right and that pensions cannot be paid to retired employees merely at the whims and fancies of the employers.

Justice V.G Arun observed that pension is deferred salary and the right to the same is akin to the right to property under Article 300A of the Constitution of India.

Unrelated Organ Transplantation | Local Level Committee Can't Insist On Police Verification Report: Kerala High Court

Case Title: Salikuttan N. v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 437

The Kerala High Court recently reiterated that the Local Level Committee for Renal Transplantation cannot insist on the production of a police verification report to forward an application for unrelated organ transplantation filed under the Transplantation of Human Organs and Tissues Act to the District Level Authorisation Committee.

Justice V.G. Arun also expressed dissatisfaction over the fact that the Committee was taking insisting on the report even when a life was at stake, despite the matter being already settled in Shoukathali Pullikuzhiyil v. District Level Authorization Committee.

Non-Joining Duty Vacancies Should Be Treated As Fresh Vacancies: Kerala High Court

Case Title: Santhosh Kumar v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 438

The Kerala High Court on Tuesday held that the Non Joining Duty (NJD) vacancies that arose in the post of Preventive Officer at the Public Service Commission (PSC) after the amendment of Part III of Kerala State & Subordinate Service Rules (Special Rules) will have to be filled as per the amended Rules and not the erstwhile Rules.

A Division Bench of Justice A.K. Jayasankaran Nambiar and Justice Mohammed Nias C.P also reiterated that a vacancy that arises due to an advised candidate not reporting for duty pursuant to the advice has to be treated as a fresh vacancy.

"Grave Injury to Mental Health": Kerala High Court Allows Termination of 28 Week Pregnancy of 14 Year Old Rape Survivor

Case Title: XXXXXXXXXX v. Union of India & Ors.

Citation: 2022 LiveLaw (Ker) 439

The Kerala High Court on Tuesday allowed a Writ Petition that was filed to terminate the 28 week old pregnancy of a 14 year old rape survivor.

The Single Judge Bench of V.G. Arun, while allowing the Writ, took note of the Medical Board's recommendation for the medical termination of pregnancy on the ground that,

"The continuation of pregnancy may cause grave injury to the mental health of the girl", the Court noted.

Kerala High Court Dismisses Swapna Suresh's Plea To Quash FIR Registered Against Her Over Allegations Against CM

Case Title: Swapna Prabha Suresh v. State of Kerala

Citation: 2022 LiveLaw(Ker) 440

The Kerala High Court on Friday dismissed the two petitions filed by Swapna Suresh seeking to quash the FIR registered against her for allegedly spreading false information against MLA K.T Jaleel, Chief Minister Pinarayi Vijayan and the Government.

The bench of Justice Ziyad Rahman A. A, while dismissing her plea to quash the FIR, observed that for the purpose of conducting an investigation for the offence under section 153 IPC, the contents of the FIR are sufficient.

DV Act | Magistrate Empowered To Refer Matters To Mediation, Record Compromise & Pass Order For Settlement: Kerala High Court

Case Title: Mathew Daniel v. Leena Mathew

Citation: 2022 LiveLaw(Ker) 441

The Kerala High Court on Tuesday held that the Magistrate exercising jurisdiction under the Protection of Women from Domestic Violence Act, 2005 (DV Act) has the power to refer the matter before it to mediation as per Section 89 of Civil Procedure Code (CPC), record the compromise and pass an order in terms of the settlement applying the principles of Order XXIII Rule 3 of CPC.

District Collectors Will Be Answerable For Accidents Caused By Road Potholes ;Principles Of Constitutional Tort Will Apply : Kerala High Court

Case Title: Pauly Vadakkan v. Corporation of Cochin

Citation: 2022 LiveLaw (Ker) 442

The Kerala High Court on Friday ordered that every future road accident caused by potholes would have to be explained by the District Collectors. It further directed that the officers under the various District Collectors - in their capacity as Chairman or Chairperson of the Disaster Manager Authority - ought to be instructed to visit and watch every road and ensure that all of them are kept free of disaster lest another accident happens.

Civil Courts Obliged To Await Mediation Report Before Passing Further Orders When Parties Referred For Mediation: Kerala High Court

Case Title: Shybu B. v. Sajeev

Citation: 2022 LiveLaw (Ker) 443

The Kerala High Court recently held that when a civil court has referred parties to a civil suit to mediation under Section 89 of the Civil Procedure Code, there is an obligation to await the mediation report before passing further orders in the suit.

Justice C.S. Dias, while adjudicating the matter, and deciding as to whether the court below had erred in dismissing the suit as 'not pressed', further observed that, it is statutory that when a suit is settled under Section 89 of the Code, without adjudication, the plaintiff is entitled for refund of the entire court fee as provided in Section 69 (A) of the Kerala Court Fees and Suit Valuation Act, 1959.

No Remedy Under Article 227 For Orders Revisable U/S 115 CPC: Kerala High Court

Case Title: Shibu & Anr v. Sreekumaran & Anr.

Citation: 2022 LiveLaw (Ker) 444

The Kerala High Court recently held that an Original Petition filed under Article 227 of the Constitution is not the remedy in relation to an order which is revisable under Section 115 of the Civil Procedure Code.

Justice A. Badharudheen while holding so, further observed that where there is an allegation of obstruction of natural right (to get light and air to the property) in a civil suit, it is the civil courts that would have jurisdiction over the same, and the Tribunal for Local Self Government cannot address such violation.

Copies Of 'A' Diary Of Civil And Criminal Postings In Courts Cannot Be Obtained Under RTI Act: Kerala High Court

Case Title: M. P. Chothy v. Registrar General & Ors.

Citation: 2022 LiveLaw(Ker) 445

The Kerala High Court recently, while dismissing a writ petition, held that copies of 'A' diary of civil and criminal postings in the courts could not be obtained under the Right to Information Act.

Justice Murali Purushothaman observed that since copies of 'A' diary of civil and criminal posting of cases can be obtained by filing applications under rules made by the High Court, the provisions of the RTI Act shall not be restored.

Substitution Of Arbitrator On Ground Of Bias Will Not Come Within The Scope Of Substitution Under Section 29A (6) Of A&C Act: Kerala High Court

Case Title: Flemingo Duty Free Shop Private Ltd. versus Airports Authority of India

Citation:  2022 LiveLaw(Ker) 446

The Kerala High Court has ruled that allegation of bias cannot be raised as a ground to seek substitution of Arbitrator under Section 29A of the Arbitration and Conciliation Act, 1996 (A&C Act).

The Single Bench of Justice Sathish Ninan held that there is a stark difference between the substitution of an Arbitrator under Section 15(2) and the substitution of the Arbitrator under Section 29A (6) and hence, the request for substitution of an Arbitrator on the ground of bias will not come within the scope of substitution under Section 29A (6) of the A&C Act.

Other Significant Developments

"Why Multiple Summons Were Issued On Same Information?": Kerala High Court Asks ED In KIIFB's Plea

Case Title: Kerala Infrastructure Investment Fund Board(KIIFB) v. Director, Directorate of Enforcement

The Kerala High Court on Tuesday while adjourning the plea filed by KIIFB challenging the summons issued by the Directorate of Enforcement observed that the repeated issuance of summons by the ED to the KIIFB, for producing the same documents, indicates a lack of application of mind on the part of the Investigating Agency.

Justice V. G. Arun taking note of the fact that the ED had issued repeated summons for obtaining the same documents relating to the usage of the funds collected through the Masala Bonds, orally remarked that it indicates a lack of application of mind.

'Will Give A Wrong Message To Society': Kerala Court Denies Bail To YouTuber For Insulting ST Woman Through Social Media

Case Title: Sooraj V. Sukumar v. State of Kerala & Ors.

A Sessions Court in Kerala recently denied bail to a YouTuber who allegedly insulted a woman belonging to a Scheduled Tribe through an interview published on social media on the ground that he had intentionally telecasted the video to humiliate the woman.

Ernakulam Sessions Judge Honey M. Varghese dismissed the bail application observing that enlarging him on bail at this stage would send a wrong message to the society, particularly since he had reiterated his stand against the woman despite having been denied bail by the High Court.

While The World Celebrates Onam, They Stay Hungry': Kerala High Court Condemns Delay In Disbursing Pending Salaries To KSRTC Employees

Case Title: R. Baji & Ors. v. KSRTC & Ors.

The Kerala High Court on Wednesday voiced its disappointment at the delay in disbursing the pending salary of the KSRTC employees and thereby asked the authorities to utilise the assets of the KSRTC to pay the salaries of the employees.

Justice Devan Ramachandran expressed his discontent at the delay even after repeated orders have been passed by the Court.

Sexual Harassment Complaint Will Not Prima Facie Stand When Woman Was Wearing Sexually Provocative Dress : Kerala Court In Bail Order

Case Title: Civic Chandran@ C. V. Kuttan v. State of Kerala

While granting anticipatory bail to author and social activist Civic Chandran in a sexual harassment case, a Kerala Court observed that the offence under Section 354A of the Indian Penal Code is not prima facie attracted when the woman was wearing 'sexually provocative dresses'.

The 74-year-old accused had produced the photographs of the woman along with the bail application.

"The photographs produced along with the bail application by the accused would reveal that the defacto complainant herself is exposing to dresses which are having some sexual provocative one. So Section 354A will not prima facie stand against the accused", the Kozhikode Sessions Court noted in the order.

State Moves Kerala High Court Against Bail Granted To Civic Chandran In Sexual Harassment Case

Case Title: State of Kerala v. Civic Chandran & Anr.

The Kerala Government has moved the Kerala High Court challenging the anticipatory bail granted to the author and social activist Civic Chandran in a sexual harassment case filed by a Dalit Writer.

The Kerala State Government has approached the Kerala High Court through Additional Public Prosecutor challenging the anticipatory bail granted to Writer-Activist Civic Chandran, citing that the order is against the spirit of the Special Law enacted for Prevention of Atrocities against the people belonging to SC/ST community.

Plus One Admission : CBSE Student Moves Kerala High Court Challenging State's Bonus Points Policy As Unduly Favouring State Board Students

Case Title: Lakshmi Sajeev v. State of Kerala & Ors.

A Student has moved the Kerala High Court challenging the policy of the State policy to award bonus marks for Plus One Admissions on the ground that it is unduly favouring students from the State Board.

The petition has been moved through Advocates Aji V. Dev and Alan Priyadarshi Dev, challenging the policy of the State to award bonus marks for Plus One Admission on the grounds that it is arbitrary and therefore violative of Articles 14 and 15(1) of the Constitution of India.

Madhu Lynching Case| Kerala Court Cancels Bail Of 12 Accused For Influencing Witnesses

Case Title: State v. Hussain & Ors.

The Special Court for SC/ST (Prevention of Atrocities) Act, Mannarkkad, on Saturday, cancelled the bail granted to 12 of the 16 accused in the lynching case the tribal youth, Madhu in Attappady in Kerala in February 2018.

The Special Court Judge K.M. Retheesh Kumar, while cancelling the bail, importantly observed that granting of bail is not an unfettered freedom granted to the accused, and if it is found that there is likelihood of accused fleeing from justice, then bail granted to the accused can be cancelled and his personal liberty can be curtailed invoking authority under section 437(5) and 439(2) Cr.PC.