Kerala High Court Weekly Round-Up: December 19 To December 25, 2022

Nominal Index [Citation 2022 LiveLaw (Ker) 658- 666]

Dr Asha Sreedhar v. Dr Shahinamole S and Connected Cases 2022 LiveLaw (Ker) 658

Amaldev v. Preeja & Anr. 2022 LiveLaw (Ker) 659

Ressy Mol Babu & Anr. v. State of Kerala & Ors. 2022 LiveLaw (Ker) 660

Sreeja T. & Ors. v. Rajaprabha 2022 LiveLaw (Ker) 661

Fiona Joseph v. State of Kerala 2022 LiveLaw (Ker) 662

Devananda P P v. Department of Health and Family Welfare and Ors. 2022 LiveLaw (Ker) 663

Mohammed Nazer M.P. & Ors. v. Union Territory of Lakshadweep & Ors. 2022 LiveLaw (Ker) 664

Vysakh K.G. v. Union of India & Anr. And Other Connected Cases 2022 LiveLaw (Ker) 665

Dr. K.K. Ramachandran v. Sub Inspector of Police & Anr. 2022 LiveLaw (Ker) 666

Orders/Judgments This Week

[Professor Appointment] Teaching Experience Can Only Be One That Is Gained After Acquiring Essential PG Qualification: Kerala High Court

Case Title: Dr Asha Sreedhar v. Dr Shahinamole S and Connected Cases

Citation: 2022 LiveLaw (Ker) 658

The Kerala High Court on Tuesday reiterated that the teaching experience prescribed under the Special Rules in force for promotion to the post of Professor (in the Department of Prasuti Tantra and Striroga) has to be read along with the provisions of Rule 10 (ab) of Part II Kerala State & Subordinate Service Rules (KS & SSR) and thereby, it observed that teaching experience can only be one that is gained after the acquisition of the essential qualification.

Division Bench consisting of Justice A K Jayasankaran Nambiar and Mohammed Nias C P observed that,

"When we read the provisions in the Special Rules along with Rule 10 (ab) of Part II KS & SSR, as the Tribunal did in the instant case, the conclusion is inescapable that the teaching experience of ten years mentioned for the post of Professor is one that has to be gained after obtaining the basic PG qualification required for the post".

Kerala High Court Deprecates 'Clever Attempts' Made By Qualified Persons To Establish Less Income In Maintenance Proceedings

Case Title: Amaldev v. Preeja & Anr.

Citation: 2022 LiveLaw (Ker) 659

The Kerala High Court on Monday deprecated attempts made by qualified persons to establish less income by producing salary certificates issued from private entrepreneurs, without opportunity to the other side to cross-examine the author of the document, in order to avoid paying maintenance to wife and children.

The Single Judge Bench of Justice A. Badharudeen observed that courts shall consider the entire evidence, the professional or other qualifications, otherwise the physical condition and all other attenuating circumstances of the husband/respondent, while quantifying the maintenance allowance.

"Clever attempts of qualified persons to establish less income by producing salary certificates issued from private entrepreneurs, without opportunity to the other side to cross-examine the author of the document to test its genesis, shall not be the sole basis of considering the income of the husband/respondent in a maintenance petition and such certificates alone shall not be decisive in determining the income also. The courts shall consider the entire evidence, the professional or other qualifications, otherwise the physical condition and all other attenuating circumstances of the husband/respondent, while quantifying the maintenance allowance".

Can't Stick On Technicalities Like Cut-Off Dates To Refuse Benefits: Kerala HC Asks State To Write Off Loans Taken For Endosulfan Victim's Treatment

Case Title: Ressy Mol Babu & Anr. v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 660

The Kerala High Court recently directed the State Government to consider the debts incurred by the family of an endosulfan victim as debts qualified for waiver under Debt Waiver Scheme for Endosulfan Victims, and to write off the loans immediately. The direction comes after State refused to write off loans on the ground that the concerned GO for writing off loans up to Rs.3 Lakhs was applicable only to loans availed upto 30.06.2011.

Justice V.G. Arun observed, "Neither the State nor this Court can pretend to be oblivious of the plight of the endosulfan victims and their families in Kasaragod. It is pertinent to note that the NHRC recommended to pay Rs.5 Lakhs as compensation to victims like Ann Mariya. The Commission has also recommended to increase the quantum of relief and rehabilitation to victims and their families. Of course, the State came out with relief and rehabilitation packages. The daunting question is whether, in a case of this nature, the State and its officers can stick on technicalities like cut off dates for refusing the benefits due to the family of a victim".

Section 125 CrPC | Maintenance Must Be Granted From Date Of Filing Of Petition: Kerala High Court

Case Title: Sreeja T. & Ors. v. Rajaprabha

Citation: 2022 LiveLaw (Ker) 661

The Kerala High Court recently held that a petitioner under Section 125 CrPC must be granted maintenance from the date of filing of petition and not just date of passing of order.

Expressing shock at a Family Court's decision of granting maintenance from the date of order and not from the date of filing of petition, Justice A. Badharudeen said any deviation must come with reasons recorded in the order.

"...when a party claims allowance of maintenance by filing a petition, the party must get the maintenance from the date of the petition onwards and the same is the sanction of law. No doubt, deviation therefrom can be had for specified reasons to be recorded in writing and not otherwise. In the order impugned, the learned Family Court Judge not stated any reasons to deny maintenance from the date of petition and to grant the same from the date of order. Before this Court also nothing available to disallow maintenance from the date of the petition. In fact, there is no justifiable reason to uphold the said finding. To the contrary, it is held that the denial of maintenance allowance from the date of the petition without recording specific reasons is not the sanction of law and therefore, the said order is liable to be set aside..."

'In Ideal Society, Girls & Women Must Be Able To Walk On Streets At Any Point Of Time': Kerala High Court

Case Title: Fiona Joseph v. State of Kerala

Citation: 2022 LiveLaw (Ker) 662

The Kerala High Court on Thursday said that in an ideal society, girls and women must be able to walk on the streets at any point of time, be that day or night. However, it said such an atmosphere will require the security systems to be as advanced.

Observing that concerns of parents could not brushed aside just because the children had attained age of majority, Justice Devan Ramachandran said it is also necessary that the children grow up without being under the cloak of patriarchy. 

"Our children have the right to experience life in all its vicissitudes and manifestations, and cannot be locked up or secluded even on the ground of offering them protection. It is the ... duty of the society to offer the protection, and to make our streets and public spaces safe, be that day or night. The petitioners have been constrained to approach this court because somewhere along the line, the society has not yet been able to offer them such. Since this is not an ideal world, certainly, concerns of protection and requirements of security would certainly have to be given the primacy that it requires, however, without boxing in our girls, and making them feel that they require a man to protect them. They certainly have to be made ready for the world, and as they say, even though we may not be able to prepare the future for our youth, we can prepare our youth for the future," it observed.

Form ICC For Sexual Harassment Complaints In All Colleges : Kerala High Court

Case Title: Fiona Joseph v. State of Kerala

Citation: 2022 LiveLaw (Ker) 662

The Kerala High Court on Thursday directed the competent authorities of colleges and other statutory authorities to constitute an Internal Complaints Committee under the UGC (Prevention, Prohibition, and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, in every college in the State.

Justice Devan Ramachandran passed the above order while disposing the petitions challenging the notification issued by the Higher Education Department barring female students from going out of the Hostel after 9.30 PM. 

It directed that the same shall be done within 2 months from the date of receipt of copy of the judgment. "....I direct the competent authorities of colleges and such other statutory authorities to ensure that the Internal Committee in terms of the UGC Regulations Against Sexual Harassment is constituted in every college and notifications to that effect is constituted and published within 2 months from the date of receipt of copy of judgment. As far as UGC Regulations on Implementation of Promotion of Equity in Higher Educational Institutions is concerned, the guidelines therein shall also be fully implemented in all colleges and they shall be ensured by the supervising authorities without fail", it was observed.

Kerala High Court Allows 17-Year-Old Minor To Donate Liver For Her Father; Says "Blessed Are Parents Who Have Children Like Her"

Case Title: Devananda P P v. Department of Health and Family Welfare and Ors.

Citation: 2022 LiveLaw (Ker) 663

The Kerala High Court on Tuesday granted permission to a 17-year-old minor girl to donate a portion of her liver for conducting her father's transplantation surgery, subject to the other requirements of the Transplantation of Human Organs and Tissues Act, 1994 and the Rules.

Justice V G Arun while passing the order said that it is heartening to note that the unrelenting fight put up by Devananda has finally succeeded.

"I applaud the petitioner's fight to save her father's life. Blessed are parents who have children like Devananda...The writ petition is disposed of permitting the petitioner to donate a portion of her liver for conducting her father's transplantation surgery, subject to the other requirements of the Act and the Rules".

Kerala High Court Says Chief Judicial Magistrate May Have Forged Evidence In Trial, Orders Lakshadweep Administrator To Suspend Him Pending Enquiry

Case Title: Mohammed Nazer M.P. & Ors. v. Union Territory of Lakshadweep & Ors.

Citation: 2022 LiveLaw (Ker) 664

The Kerala High Court on Friday said that former Chief Judicial Magistrate at Amini island in Lakshadweep seems to have forged evidence in a criminal trial and is liable to be proceeded against under law.

Justice P.V. Kunhikrishnan directed Lakshadweep Administrator to place K. Cheriyakoya, who is currently working as Secretary of the District Legal Services Authority, under suspension forthwith and conduct a detailed enquiry into his actions.

"Even if a person is occupying the post of Magistrate or Judge, the law of the land is applicable to all. If there is any dereliction of duty, the constitutional courts should step in to strengthen the trust of the people in the judiciary. The Magistrate, Judges and other presiding officers are not above the law and if they commit any dereliction of duty, they have to face the consequences. This should be a lesson to all," said the court

Right To Be Forgotten - Kerala High Court Allows Litigants To Seek Deletion Of Personal Identities In Family Cases & In-Camera Trials

Case Title: Vysakh K.G. v. Union of India & Anr. And Other Connected Cases

Citation: 2022 LiveLaw (Ker) 665

Pronouncing a significant verdict on the "right to be forgotten", the Kerala High Court on Thursday held that personal information of the parties may not be published on the High Court website in respect of the family and matrimonial cases if the parties in those cases make such a request.

While holding that the claim for protection of personal information based on right to privacy cannot coexist in open court justice system, the Court however permitted the masking of personal identities in matrimonial cases and in cases where the law does not recognize the open court system (cases for rape and sexual offences where the trial is held in-camera).

The Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen, said, "In family and matrimonial cases arising in family court and jurisdictions otherwise, and also in other cases where the law does not recognize open court system, the registry of the Court shall not publish personal information of the parties or shall not allow any form of publication containing the identities of parties in the website or any other information system maintained by the Court if the parties to such litigations so insist".

Right To Be Forgotten | Kerala High Court Says Legislature Alone Competent To Enumerate Grounds But Till Then Courts Can Decide On Case-To-Case Basis

Case Title: Vysakh K.G. v. Union of India & Anr. and other connected cases

Citation: 2022 LiveLaw (Ker) 665

Observing that legislature alone is competent to enumerate grounds for claiming right to be forgotten and carve out exceptions to the claims of such a right, the Kerala High Court on Thursday said in the absence of legislation, the court may have to recognise the right and direct removal of such content available online on a case-to-case basis.

The division bench Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen, therefore took the view that the court cannot prevent the dissemination of case details in the public domain citing the privacy of individual litigants.

"In individual cases, the Court may, after adverting to time and space, order the erasure of past records. However, nothing prevents the Legislature from bringing in Legislation recognizing the right to be forgotten to erase such records after the expiry of such period as it deems fit to fix. Further, laying down the grounds when such a right to be forgotten can be exercised is the prerogative of the Legislature. As the right to be forgotten is not an absolute right, it is crucial that the legislature enumerates the grounds when an individual can claim this right," the Court observed.

Reporting And Publishing Of Judgments Part Of Freedom Of Speech And Expression, Cannot Be Taken Away Lightly: Kerala High Court

Case Title: Vysakh K.G. v. Union of India & Anr. And Other Connected Cases

Citation: 2022 LiveLaw (Ker) 665

The Kerala High Court on Friday ruled that reporting and publishing of judgments are part of freedom of speech and expression.

Dealing with petitions seeking enforcement of the 'right to be forgotten' against uploading of court orders or judgements on the internet, the division bench of Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen said: "The Courtroom is open to all. The Court cannot gloss over the protection available to publishers of judgments under Article 19(1)(a) of our Constitution. Reporting and publishing judgments are part of freedom of speech and expression and that cannot be taken away lightly without the aid of law."

The Court said the identity of the judiciary based on public confidence is not ordinarily possible without there being free flow of information on judicial functioning.

Section 294 IPC | Doctor's Consultation Room Not A 'Public Place': Kerala High Court Quashes Case Against Paediatrician

Case Title: Dr. K.K. Ramachandran v. Sub Inspector of Police & Anr.

Citation: 2022 LiveLaw (Ker) 666

The Kerala High Court on Tuesday held that the consultation room of a doctor in a hospital is not a 'public place' in terms of Section 294(b) of IPC, while quashing a case of harassment against a doctor. The police had booked the doctor under Section 294(b) and Section 354A of the IPC.

Justice Kauser Edappagath observed that Section 294(b) of IPC is attracted when the offender sings, recites or utters any obscene song or word in or near any public place, to the annoyance of others. "If the act is not obscene, or is not done in any public place, or the song recited or uttered is not in or near any public place or that it caused no annoyance to others, no offence is committed," said the court.

It further noted that the place of occurrence was the consulting room of the doctor at a hospital.

"It can never be termed as a public place or near public place. That apart, in order to satisfy the definition of obscenity to attract Section 294(b) of IPC, the words uttered must be capable of arousing sexually impure thoughts in the minds of its hearers. There is no case for the prosecution that the words allegedly uttered by the petitioner aroused sexually impure thoughts in the minds of the hearers. In these circumstances, I am of the view that the basic ingredients of Section 294(b) of IPC are not attracted," said the court

Other Significant Developments This Week

High Court Pulls Up Kerala Govt For Delay In Recovering ₹5.2 Crore Damages From PFI, Says State's Attitude Disrespectful, Callous

Case title: Kerala Chamber of Commerce and Industry v. State of Kerala and Malayalavedi v. State of Kerala

The Kerala High Court on Monday pulled up the State over the delay in recovery of damages from banned Popular Front Of India (PFI) and its office bearers. The government had earlier initiated recovery proceedings against PFI for realisation of Rs 5.20 Crore, the amount estimated towards the damage caused during the flash hartal in September.

The division bench Justice A. K. Jayasankaran Nambiar and Justice Mohammed Nias C.P. said despite the issuance of peremptory directions to proceed against the assets of PFI and its office bearers including the Secretary, "nothing substantial" has been done by the State.

Kerala High Court Directs Govt Medical Colleges To Implement Order Relaxing Timings Of Hostels

Case Title: Fiona Joseph v. State of Kerala

The Kerala High Court on Tuesday directed all Principals and other concerned authorities of Medical Colleges to act in terms of the Government Order dated 06.12.2022, which has substantially relaxed the timings of Government Medical College Hostels, with immediate effect.

Justice Devan Ramachandran, noted that the said GO although stipulates the closing time of gates for both girls and boys to be 9.30 P.M., does give sufficient leeway to the students to enter it after that time, subject to certain bare minimum conditions.

"Prima facie, I find this order to be a welcome step forward, particularly when Smt.Parvathy Menon – learned Standing Counsel for the Kerala Women's Commission, affirms that it does not brook of any gender discrimination", the Court observed.

'Sleepless Nights & Nightlife Not Meant For Students; Absolute Freedom Not Good': University Defends Girls Hostel Curfew

Case Title: Fiona Joseph v. State of Kerala

A written statement has been filed by the Kerala University of Health Sciences in the issue pertaining to the notification issued by the Higher Education Department barring female students from going out of the Government Medical College hostels after 9.30 PM.

In the statement filed through the Standing Counsel of the University, Advocate P. Sreekumar, it has been averred that the writ petition was filed by certain girl students of the Government Medical College Kozhikode without properly understanding the import and purpose of the impugned Government Order (G.O.). The counsel averred that there was no element of discrimination involved in the issuance of the said G.O., and that it was issued taking into account the right to have equal treatment to the students without any gender bias.

Kerala High Court Asks Govt To Take Decision On Proposal For Enhancing Superannuation Age Of High Court Staff

Case Title: Sajeev Kumar P.P. v. State of Kerala

The Kerala High Court on Tuesday asked the state government to consider and take a decision at the earliest on the proposal made by a Committee of Judges regarding enhancement of age of superannuation of its staff, in light of judicial reforms proposed on the basis of 'Model Digital Court'.

Justice Devan Ramachandran said:

"It is thus clear that, on one side, it is obligatory on the Government to consider the proposal of this Court in its proper perspective; while, on the other, the requirement of experienced staff for it, during the transitory period, is unexpendable. To obtain a balance, I am certain that Government must take a decision on Ext.P3 at the earliest, keeping in mind the above important aspects, especially that the 'transitory stage' is commencing soon".

Plea In Kerala High Court Challenges Appointment Of NUALS Registrar

Case Title: Adv. Sanjai D. Rajan v. The National University of Advanced Legal Studies & Ors.

A plea has been filed in Kerala High Court by a lawyer, challenging the appointment of the Registrar of the National University of Advanced Legal Studies (NUALS) Mahadev M.G.

In the plea filed by Advocate Sanjai D. Rajan, it has been averred that the appointment of the Registrar of NUALS was made in violation of the University Grants Commission Regulations and mandates.

According to the petition, Mahadev M.G. only has 2 years and 8 months of experience as Deputy Registrar, 1 year and 1 month experience as Assistant Registrar, and less than 4 years and 2 years experience as Private Secretary to the Vice Chancellor. He does not have the requisite minimum qualifications, the plea argues.

Human Sacrifice Case | Kerala High Court Reserves Order On Laila Bhagawal Singh's Bail Application

Case Title: Laila Bhagaval Singh v. State of Kerala

The Kerala High Court on Friday reserved its order on the bail application moved by Laila Bhagawal Singh, one of the accused in the Human Sacrifice Case.

Justice Bechu Kurian Thomas has asked for the Case Diary to be placed before the court for consideration.

"In this case, I was impressed with your [argument] that she was only a spectator and she had no active role but now the prosecution says she has specific role in it, that is where they can satisfy prima facie the Court's conscious. I was going to pass orders today but now I will go through the case diary and consider it". 

Cycle Polo Player Death: Kerala High Court Issues Contempt Notice To Cycle Polo Federation Of India Secretary, Others

Case Title: Kerala Cycle Polo Association v. Dinesh Sanwe

The Kerala High Court on Friday issued notice to Cycle Polo Federation Of India's Secretary and others in the contempt case filed in connection with the death of Nida Fathima, a cycle polo player.

Justice V G Arun, while adjourning the case for January 12, directed them to appear before the court on that day.

Kerala Cycle Polo Association has approached the Court, seeking initiation of a contempt of court case against Dinesh Sanwe, the Secretary of Cycle polo federation of India and Praveen Chandra, Secretary, Cycle Polo Association of Kerala.

PFI Hartal : Kerala Government Tenders Unconditional Apology Before HC For Delay In Recovering Damages From Popular Front

Case Title: Kerala Chamber of Commerce and Industry v. State of Kerala and Malayalavedi v. State of Kerala

The Kerala High Court on Friday took note of the assurance given by the Additional Chief Secretary, Home Department, Dr. Venu IAS, that clear instructions would be issued in order to ensure that the directions issued by the Court in matters of public interest would be promptly supplied with, and acted upon by the executive.

The Division Bench comprising Justice A.K. Jayasankaran Nambiar and Justice Mohammed Nias C.P., expressed hope that the same would augur well for the coming year in improving the executive-judiciary relations.