Kerala High Court Weekly Round-Up: December 5 To December 11, 2022
Navya Benny
12 Dec 2022 9:30 AM IST
Nominal Index [Citation 2022 LiveLaw (Ker) 632-643]Dr V. V. Haridas MD v. State of Kerala and ors. and Kinder Women's Hospital and fertility centre v. State of Kerala and Ors. 2022 LiveLaw (Ker) 632A. Salim v. M/S Asianet Satellite Communication Ltd. 2022 LiveLaw (Ker) 633Najeeb Kanthapuram v. K.P. Mohammed Musthafa @ K.P.M. Musthafa & Ors. 2022 LiveLaw (Ker) 634Suneesh v. State of...
Nominal Index [Citation 2022 LiveLaw (Ker) 632-643]
Dr V. V. Haridas MD v. State of Kerala and ors. and Kinder Women's Hospital and fertility centre v. State of Kerala and Ors. 2022 LiveLaw (Ker) 632
A. Salim v. M/S Asianet Satellite Communication Ltd. 2022 LiveLaw (Ker) 633
Najeeb Kanthapuram v. K.P. Mohammed Musthafa @ K.P.M. Musthafa & Ors. 2022 LiveLaw (Ker) 634
Suneesh v. State of Kerala & Anr. 2022 LiveLaw (Ker) 635
M. S. Anil and Anr. v. M/S Hil (India) Ltd and Ors. 2022 LiveLaw (Ker) 636
Anvar Sadath Ibrahimkutty and Anr. v. The Chief Registrar General of Marriage and Ors. 2022 LiveLaw (Ker) 637
Haneefa and Ors. v. State of Kerala and Anr. 2022 LiveLaw (Ker) 638
Mathew v. State of Kerala 2022 LiveLaw (Ker) 639
Anup Disalva & Anr. v. Union of India 2022 LiveLaw (Ker) 640
Biju P. Cheruman @ Aadi Margi Maha Chandala Baba v. Election Commission of India and Ors. and Vayalar Rajeevan v. Saji Cherian MLA and Ors. 2022 LiveLaw(Ker) 641
Dr. Dileep Kumar S.R. v. Veena S. Nair & Ors. and Other Connected Cases 2022 LiveLaw (Ker) 642
Cochin International Airport Ltd. v. The State Information Commission & Anr. and other connected cases 2022 LiveLaw (Ker) 643
Orders/Judgments This Week
Case Title: Dr V. V. Haridas MD v. State of Kerala and ors. and Kinder Women's Hospital and fertility centre v. State of Kerala and ors.
Citation: 2022 LiveLaw (Ker) 632
The Kerala High Court on Tuesday, while dismissing two Writ Petitions, observed that Section 191 of Kerala Panchayat Raj Act, 1994 is an efficacious, alternate statutory remedy against any resolutions or decisions taken by the panchayat.
Section 191 of the KPR Act deals with the power of cancellation and suspension of resolutions etc. and the Court observed that as per the provision, the Government is well-equipped to decide the legality of any resolution passed or decision taken by the Panchayat.
Justice Murali Purushothaman rejected the contention that approaching the government under the provision is futile because the decision impugned is taken by government functionaries and observed, "The power conferred on the Government under Section 191 of the K P R Act is quasi-judicial and any administrative decision of the functionaries of the Government cannot preclude the Government from exercising its quasi-judicial functions".
Case Title: A. Salim v. M/S Asianet Satellite Communication Ltd.
Citation: 2022 LiveLaw (Ker) 633
The Kerala High Court recently held that arbitration under the Arbitration and Conciliation Act, 1996 is barred in respect of matters which are within the exclusive jurisdiction of Telecom Disputes Settlement and Appellate Tribunal (TDSAT) under the Telecom Regulatory Authority of India Act, 1997 (TRAI Act).
Justice N. Nagaresh observed that TRAI Act is a special law and would prevail over the Arbitration Act, which is a general law.
"The Telecom Regulatory Authority of India Act, 1997 being a later statute and having been specially enacted for the Telecom Sector, will certainly prevail over the Arbitration and Conciliation Act, 1996. The Telecom Regulatory Authority of India Act, 1997 was enacted in the year 1997 and the Arbitration and Conciliation Act was enacted in the year 1996. When the Telecom Regulatory Authority of India Act, 1997 was enacted, the Parliament was aware of the remedy of arbitration available under the Arbitration and Conciliation Act, 1996. Even then, the Parliament chose not to exclude the Arbitration and Conciliation Act, 1996 from the ambit of the Act, 1997", it observed.
Case Title: Najeeb Kanthapuram v. K.P. Mohammed Musthafa @ K.P.M. Musthafa & Ors.
Citation: 2022 LiveLaw (Ker) 634
Rejecting Perinthalmanna MLA Najeeb Kanthapuram's objections against an election petition pending against him, the Kerala High Court recently said the case will go for trial for a decision on the rejection of 348 ballot papers in the matter.
Justice A. Badharudeen in the ruling considered the question whether it is necessary to plead all essential facts in detail and if deviation or lack of pleadings would lead to summary rejection of the plaint. The counter argument before the court was that the importance of pleadings and its meticulous evaluation would apply only in such cases where the election is challenged on the ground of any corrupt practice.
The court said when corrupt practice is alleged to set aside the election of a returned candidate, the very minute details of the allegation are required to be specifically pleaded as provided under Section 83(1)(b) of the R.P Act and any sort of omission is a reason to reject the Election Petition. "However, when the election of a returned candidate is put under challenge specifically for the ground (iv) of S.100(1)(d), for any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, then also the Election Petition shall contain a concise statement of the material facts on which the petitioner relies as mandated under Section 83(1)(a) of the R.P Act with sufficient pleading highlighting the non-compliance with the provisions of the Constitution or of the R.P Act or of any rules or orders under the R.P Act," the court added.
Case Title: Suneesh v. State of Kerala & Anr.
Citation: 2022 LiveLaw (Ker) 635
The Kerala High Court on Monday reiterated that the penalty provided under Section 31 of the Protection of Women from Domestic Violence Act would attract only for the breach of the protection orders passed under Section 18 of the Act and in case of violation of any other order passed under the 2005 enactment, the provisions of CrPC can be resorted to.
The breach of a protection order passed under Section 18 is an offence under Section 31 and can lead to imprisonment of one year. Justice A. Badharudeen in the decision dated December 5 considered the question that whether failure to comply with the order passed under Section 20 (monetary reliefs) would also attract penal proceedings under Section 31. The court said while incorporating provisions under Section 31 to impose penalty for breach of 'protection order', the legislature never intended to impose penalty for violation of 'residence orders' or 'monetary reliefs' under the Act.
"Based on this principle, this Court in Velayudhan Nair v. Karthiayani's case held that Section 31 of the D.V Act would apply only on violation of the interim order or final protection order passed under Section 18 of the D.V Act and it was held further that in case of violation of any order passed other than an order passed under Section 18 of the D.V Act, the provisions of the Cr.P.C can be resorted to," said Justice Badharudeen.
Case Title: M. S. Anil and Anr. v. M/S Hil (India) Ltd and Ors.
Citation: 2022 LiveLaw (Ker) 636
The Kerala High Court on Monday reiterated that the convenience of the retired employee must be given preference in petitions filed for claiming terminal benefits admittedly due to them. The aforesaid petitions can be moved before the Court having territorial jurisdiction over the place where he belongs to and was receiving pension at.
Justice Anu Sivaraman observed, "To now require the petitioners who are service pensioners to approach the High Courts at Delhi and Bombay for receiving amounts which are admittedly due to them, according to me, is a complete misconception and would amount to denial of the petitioners' valuable rights".
Case Title: Anvar Sadath Ibrahimkutty and Anr. v. The Chief Registrar General of Marriage and Ors.
Citation: 2022 LiveLaw (Ker) 637
The Kerala High Court recently held that authorities can entertain an application under Rule 13 of Kerala Registration of Marriages Rules 2008 for correction or cancellation of entries in the Register of Marriages (Common) only at the instance of the parties to the marriage.
Justice P. V. Kunhikrishnan observed that a third person who is not a party to the marriage cannot file an application for correction or cancellation of entries in the Register of Marriages (Common).
"From a plain reading of Rule 13 of Rule 2008, it clear that the 'application of the parties' referred to in Rule 13(1) means the parties to the marriage. Parties to the marriage means the spouses, that is husband and wife. A third person who is not a party to the marriage cannot file an application for correction or cancellation of entries".
Case Title: Haneefa and Ors. v. State of Kerala and Anr.
Citation: 2022 LiveLaw (Ker) 638
The Kerala High Court on Wednesday quashed trial court proceedings in a criminal case accusing two men and a woman of creating a "parallel telephone exchange", after ruling that the police could not have initiated a probe in the case, alleging commission of non-cognizable offences, without obtaining an order from the Magistrate.
"Incorporation of a cognizable offence at the time of filing of the final report cannot be utilized as a method or as a device to circumvent the mandate of S.155(2) Cr.P.C. by the officer in charge of the police station or any investigating officer." said the court.
Justice Bechu Kurian Thomas said Section 155(2) of Cr.P.C prohibits not only an investigation but even the commencement of an investigation by the police without orders from the Magistrate concerned in cases where only non-cognizable offences are alleged.
Brothel Customer Can Be Prosecuted U/S 7 Of Immoral Traffic (Prevention) Act: Kerala High Court
Case Title: Mathew v. State of Kerala
Citation: 2022 LiveLaw (Ker) 639
The Kerala High Court on Wednesday observed that a 'customer' in a brothel can be proceeded against criminally under Section 7 of the Immoral Traffic (Prevention) Act, 1956 if the conditions specified in the provision are satisfied.
Section 7 of the Act makes prostitution in certain specific areas punishable and the Court in this instant case observed that the words 'person with whom such prostitution is carried on' as appearing in section 7(1) of the Act will include a 'customer'.
Justice Bechu Kurian Thomas observed, "In the absence of the customer falling within the penal umbrella of the statute, the objects of the enactment can never be achieved. Thus, in my considered opinion, the words 'person with whom such prostitution is carried on' as appearing in section 7(1) of the Act will include a 'customer'".
Case Title: Anup Disalva & Anr. v. Union of India
Citation: 2022 LiveLaw (Ker) 640
The Kerala High Court on Friday held that the fixation of the minimum period of separation of one year under Section 10A of the Divorce Act, 1869 is violative of the fundamental rights and struck it down.
The Division Bench comprising Justice A. Muhamed Mustque and Justice Shoba Annamma Eapen, noted that the Legislature had imposed such a period in its wisdom, in order to act as a safeguard against impulsive decisions that may be taken by parties to separate and rid themselves of the marriage. "This period will insulate possible peril that may ensue for the parties as a follow-up of the decision for mutual separation. In the Indian social context, though marriages are solemnized by two individuals, it is seen more as a union for laying the foundation for a strong family and society. Many laws have been made and many rights have been created based on familial relationships. The legislature, therefore, decided that a minimum period of separation must precede before presentation of a petition for divorce on the ground of mutual consent".
However, the Court was quick to note that in the instant case, it was posed with the question as to whether, in the absence of any provisions allowing the parties to a marriage to move the Court before the lapse of one year from the date of marriage or the date of separation, the provisions could stand the test of constitutional scrutiny. "We would not have thought of interfering with a minimum period as it carries a laudable object behind it. But we are constrained to note that no remedy is provided by statute in exceptional and depraved conditions for a spouse to approach the Courts to get rid of the minimum period. The legislature in their wisdom felt that some provisions are to be made to relax the rigour of the minimum period to entertain a petition within the waiting period of separation in other statutes. This essentially ensures that efficacious judicial remedy is provided in cases of exceptional hardships to the parties. The denial of such a remedy to Christians bothers us", it observed.
Case Title: Anup Disalva & Anr. v. Union of India
Citation: 2022 LiveLaw (Ker) 640
The Kerala High Court on Friday said that the Union Government should seriously consider having a uniform marriage code in India in order to promote the common welfare and good of spouses in matrimonial disputes.
The Division Bench of Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen said the law at present differentiates parties on the basis of their religion, when it comes to matrimonial relationships.
"In a secular country, the legal paternalistic approach should be on the common good of the citizens rather than based on religion. The State's concern must be to promote the welfare and good of its citizens, and religion has no place in identifying the common good," said the court.
Case Title: Biju P. Cheruman @ Aadi Margi Maha Chandala Baba v. Election Commission of India and Ors. and Vayalar Rajeevan v. Saji Cherian MLA and Ors.
Citation: 2022 LiveLaw(Ker) 641
The Kerala High Court on Thursday dismissed the petitions seeking a writ of quo warranto against Chengannur MLA Saji Cherian over his alleged "derogatory remarks against the constitution".
The division bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly observed that it is not for the court to go to the contentions, decipher the truth of it, and grant the reliefs sought by the petitioners under Article 226 of the Constitution of India, when there is a clear procedure prescribed in the law.
"Whether the 1st respondent has violated the Oath of office, on the basis of the subject matter, is a matter which could be identified or deciphered only by a fact finding body, taking into account the attendant circumstances. So also, Article 173 of the constitution of India deals with the qualifications of a person to become a member of a Legislative Assembly, which has nothing to do with the case projected by the petitioners. Therefore, we are of the view that, if at all the allegations have any intrinsic relationship with the disqualifications deliberated above, there is a straightforward remedy specified under the Constitution of India."
Case Title: Dr. Dileep Kumar S.R. v. Veena S. Nair & Ors. and Other Connected Cases
Citation: 2022 LiveLaw (Ker) 642
The Kerala High Court on Thursday dismissed the petition challenging the proceedings initiated by the Lok Ayukta on a complaint alleging corruption in the purchase of PPE kits and other surgical equipment during the COVID-19 Pandemic.
The Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly, while dismissing the petition, observed that, "On a perusal of the complaint, we are of the clear opinion that the complainant/1st respondent herein has not challenged the manner in which contract was provided, by invoking Section 50 of the [Disaster Management] Act, 2005; the allegations made in the complainant is with respect to the alleged corruption or maladministration that has taken place in the purchase of materials by making exorbitant and huge amount to the products than the maximum retail price".
Case Title: Cochin International Airport Ltd. v. The State Information Commission & Anr. and other connected cases
Citation: 2022 LiveLaw (Ker) 643
The Kerala High Court last week ruled that Cochin International Airport Ltd (CIAL) is a public authority under the Right to Information Act, 2005 (RTI Act), while upholding a decision of the State Information Commission.
Justice Amit Rawal observed that the aims and object of the Cochin International Airport (CIAL), read with provisions of Article 95 and 125 of the Articles of Association, lead to an irresistible conclusion that Kerala Government has a "deep and pervasive control" over the company. The court noted that as per the provisions of the company's Articles of Association, the Managing Director - who is an IAS Officer, has the management and supervision of the business of the Company with powers to do all acts, matters and things deem necessary for carrying out the business of the Company.
"The Board de facto is controlled by the Chief Minister and three other ministers of the Cabinet and the senior IAS officer of the State. The Government order of 15.6.2016, also is a testimony to the fact that the Managing Director of the CIAL would be drawing a salary from the Government of Kerala in the capacity of the Additional Chief Secretary in the Government," it added.
Other Significant Developments This Week
Case Title: Manikandan v. Raveena
The Kerala High Court on Thursday directed all Family Court judges to release the amount deposited towards arrears of maintenance under the orders of the High Court or otherwise, at the earliest.
The Single Judge Bench of Justice A. Badharudeen's observed, "when arrears of maintenance being deposited before the Family Courts in obedience to the order/interim order or otherwise, Family Courts are reluctant to release the amount deposited to the claimants and unwantedly insist for orders from this Court to release the amount. It appears to be a bad practice which is detrimental to the interest of the claimants. In fact, it is the duty of the Family Courts to release the amount deposited within no time to the respondents, so as to help them for their survival".
The Court thus issued aforementioned direction noting that this was the practice in almost all the Family Courts.
Kerala High Court Directs Police To Ensure Safety Of Archbishop Andrews Thazhath
Case Title: Archbishop Andrews Thazath v. State of Kerala & Ors.
The Kerala High Court on Monday directed the Station House Officer, Central Police Station, Ernakulam, to ensure adequate protection of Archbishop Andrews Thazhath, apostolic administrator of Ernakulam-Angamaly Archdiocese of the Syro-Malabar Church, in case of any "overt acts" against his life. The order was passed in the archbishop's petition seeking police protection for his safety as well as for smooth ingress and egress to the Major Archbishop's House in Ernakulam.
Justice Anu Sivaraman, while listing the matter for hearing on December 8 said, "In the meanwhile, in case of any overt acts against the life of the petitioner, the petitioner may inform the Station House Officer who shall take appropriate steps to see that adequate protection is granted to the life of the petitioner."
Case Title: State of Kerala v. Sreeram Venkitaraman
The Kerala High Court on Monday said that in addition to stay on the operation of the order dropping culpable homicide charges against IAS officer Sreeram Venkitaraman in the 2019 rash driving case, the trial proceedings against him shall also remain stayed.
"It is clarified that in addition to the operation of the Order passed in Crl. M.P. 2325/2022, the proceedings in the SC 595/2021 shall also be stayed," the Court directed.
Justice Ziyad Rahman A.A. passed the order.
Case Title: M/S Adani Vizhinjam Ports Pvt Ltd & Ors v. Dr. V.P. Joy IAS & Ors. and other connected cases
The Kerala High Court on Wednesday closed the contempt case alleging wilful disobedience of an order granting police protection to employees and workmen of Adani Vizhinjam Port for free ingress and egress to the construction site in Vizhinjam.
When the matter was taken up today, the counsel representing the State submitted before the bench of Justice Anu Sivaraman that the protest has been called off. The counsel representing the respondents also submitted that instructions have been given for removal of the tent, erected by protestors on the road leading to the under-construction Vizhinjam Port, today itself.
Case Title: Fiona Joseph v. State of Kerala
The Kerala High Court, on Wednesday, criticising the notification issued barring female students going out of the Hostel of Govt Medical College Kozhikode after 9.30 PM, questioned why should there be a curfew for Girls alone, when there are no such restrictions for boys.
The Court in the instant case was considering a plea moved by certain girl students of Government Medical College Kozhikode against the impugned notification issued by the Higher Education Department barring female students from going out of the Hostel after 9.30 PM.
A bench of Justice Devan Ramachandran remarked that, "Lock up the men, I am saying (this) because they create trouble. Put the curfew for men after 8:00 pm. Let Ladies walk out".
The Supreme Court Collegium, on Friday, approved the proposal for the appointment of three Additional Judges as Permanent Judges in the Kerala High Court.
The three Additional Judges are: 1. Justice Abdul Rahim Musaliar Badharudeen 2. Justice Viju Abraham 3. Justice Mohammed Nias C.P.
