Important Judgments Of Kerala High Court In 2022
Athira Prasad & Navya Benny
31 Dec 2022 3:00 PM IST
LiveLaw reported 671 judgements from Kerala High Court in 2022. Here are some of the important decisions:Kerala High Court Upholds 10% EWS Reservation For Veterinary & Dental Courses Under KEAMCase Title: Vinay Shankar v. Union of India & Ors.Citation: 2022 LiveLaw (Ker) 1The Court upheld the 10% reservation earmarked for Economically Weaker Section (EWS) for Veterinary and Dental...
LiveLaw reported 671 judgements from Kerala High Court in 2022. Here are some of the important decisions:
Kerala High Court Upholds 10% EWS Reservation For Veterinary & Dental Courses Under KEAM
Case Title: Vinay Shankar v. Union of India & Ors.
Citation: 2022 LiveLaw (Ker) 1
The Court upheld the 10% reservation earmarked for Economically Weaker Section (EWS) for Veterinary and Dental Courses under Kerala Engineering Architecture ad Medical (KEAM).
Justice P.V. Kunhikrishnan closed the writ petition upon noticing that a Government Order dated 20.03.2020 had established the said reservation, and after the Government Pleader endorsed that it was a policy decision of the State. The Director of Medical Education also submitted an affidavit stating that as per the said Government Order, 10% of seats are set apart for candidates belonging to EWS.
Case Title: K.S. Narayana Elayathu v. Sandhya
Citation: 2022 LiveLaw (Ker) 3
The Court ruled that while District Courts are empowered to appoint a guardian for a minor's property, only Family Court can appoint a guardian for the person of a minor. While partly allowing an appeal, a Division Bench comprising Justice A. Mohamed Mustaque and Justice Sophy Thomas set aside the proceedings of the District Court to the extent of appointing a guardian for the person of the minor.
Case Title: V. G. Thankamani & Ors & National Highway Authority of India & Ors
Citation: 2022 LiveLaw (Ker) 8
The Court has ruled that non-compliance with principles of natural justice is a good ground to set aside an arbitral award. A Division Bench of Justice P.B. Suresh Kumar and Justice C.S. Sudha, while allowing an appeal, set aside the order of the Additional District Court and the impugned award. The Court also added that only an adjudicator not favouring one party more than another, unprejudiced, disinterested, equitable and just, can be said to be an impartial adjudicator.
Case Title: Thomas P. & Anr v. State of Kerala & Ors
Citation: 2022 LiveLaw (Ker) 15
The Court recently laid down that the Family Court with the respective territorial jurisdiction is empowered to give a child in adoption. After perusing the provisions of the Juvenile Justice Act 2015, the 2014 Rules framed thereunder and the Adoption Regulations 2017, Justice M.R. Anitha observed: "In the said circumstance, the finding of the learned District Judge that the court is not a proper forum and they have to approach the Child Welfare Committee is illegal and perverse."
Case Title: Sumith V. Kumar & Anr v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 18
The Court ruled that the State government was authorised to recognise classes of persons with distinct attributes and treat them differently under law while upholding that the different quantum of reservation for Scheduled Castes/Scheduled Tribes (SC/ST) and persons with disability in the NEET-2021 do not violate their right to equality. While dismissing a petition, Justice N. Nagaresh observed that persons with disabilities constituted a separate homogenous class by themselves and that their disability was physical rather than pertaining to social backwardness.
Case Title: K.P. Muhammed Ashraf v. Taliparamba Municipality & Ors.
Citation: 2022 LiveLaw (Ker) 20
The Court has set aside Rules 9(4A) and 9(4C) of the Kerala Municipality (Property Tax, Service Tax and Surcharge) Rules which prescribe fixation of property tax at a minimum of 25% over and above the tax levied for the previous year if the property tax arrived at on computation as per the Rules is less than the tax levied for the previous year. Justice N. Nagaresh pointed out that Section 233 of the Kerala Municipality Act, 1994 does not permit the fixation of a property tax over and above the upper limit fixed by the Government.
Case Title: Mahesh Lal N.Y v. State of Kerala
Citation: 2022 LiveLaw (Ker) 29
The Court has ruled that the consent of an accused is not necessary to acquire their voice sample for the purpose of comparison since it has already been established that obtaining voice samples of the accused do not infringe Article 20 (3) of the Constitution of India. While dismissing a petition alleging that the accused was not given an opportunity of being heard before being directed to produce his voice sample, Justice R. Narayana Pisharadi held that the accused has no right of option in the matter.
Case Title: P. Gopalakrishnan alias Dileep & Ors v. State of Kerala & Anr.
Citation: 2022 LiveLaw (Ker) 45
The Court held that the prosecution has every right to seek that the accused should surrender mobile phones for forensic examination under Section 79A of the Information Technology Act.
Justice Gopinath P. rejected the argument that the surrender of mobile phones will infringe the fundamental right against self-incrimination under Article 20(3) of the Constitution of India after referring to a couple of landmark decisions in this area.
Case Title: Jiji C. Senan & Anr. v. State of Kerala & Anr
Citation: 2022 LiveLaw (Ker) 50
The Court observed that a party to litigation is entitled to be informed of the reasons behind the denial of their claims. Thus, setting aside a non-speaking order passed by the Family Court, Justice Mary Joseph observed that although there is no rule that all reliefs sought for should be allowed, a party is qualified to know why their relief was denied. The impugned order directed the respondent-husband to pay Rs.6,000/- as interim maintenance allowance to the child till disposal of the plea. However, the wife was denied any interim maintenance allowance without assigning any reasons.
For Abetment By Conspiracy, Mere Agreement Not Enough; Something Must Be Done: Kerala High Court
Case Title: P. Gopalakrishnan alias Dileep & Ors v. State of Kerala & Anr.
Citation: 2022 LiveLaw (Ker) 65
The Court while granting pre-arrest bail to Malayalam actor Dileep and other accused reiterated the clear distinction between the offences of abetment by conspiracy and criminal conspiracy. Upon referring to several decisions on this issue, Justice Gopinath P. decided that while an illegal omission or act is necessary to constitute an offence of abetment by conspiracy, mere agreement is sufficient to amount to criminal conspiracy.
Case Title: Nimmy Rose James v. Life Insurance Corporation of India & Ors.
Citation: 2022 LiveLaw (Ker) 71
The Court held that even if a statute does not provide for granting an opportunity of hearing to parties, principles of natural justice have to be read into the statute. While allowing a plea moved by a woman who was terminated from service without personal hearing, Justice Murali Purushothaman held that such a termination order was violative of the principles of natural justice.
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.
Case Title: Dr Vijil & Ors v. Ambujakshi T.P & Anr.
Citation: 2022 LiveLaw (Ker) 107
In a significant decision, the Court has ruled that medical services fall within the purview of the term 'service' defined under Section 2(42) of the Consumer Protection Act, 2019. Observing so, Justice N. Nagaresh dismissed a plea filed by a group of doctors who prayed to declare that the consumer fora under the Consumer Protection Act, 2019 do not have jurisdiction to take cognizance of complaints in respect of medical negligence and deficiency in medical service.
Case Title: Women in Cinema Collective & Anr v. State of Kerala & Ors. [WP(C) 34273/2018]
Citation: 2022 LiveLaw (Ker) 128
The Court observed that film production units have the responsibility to form an Internal Complaints Committee as per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 - commonly known as the POSH Act. A Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly also recorded that AMMA has volunteered to constitute an ICC and added that if AMMA constitutes an ICC as undertaken the same shall be in accordance with the provisions of the POSH Act.
Case Title: Centre for Constitutional Rights Research and Advocacy v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 129
In a significant decision, the Court observed that political parties are not legally liable to establish Internal Complaints Commitee as per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 since there is no employer-employee relationship among its members. A Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly observed so in a PIL moved by the Centre for Constitutional Rights Research and Advocacy (CCRRA) seeking directions to constitute Internal Complaints Committee (ICC) within political parties in accordance with the POSH Act 2013.
Case Title: Suo Motu v. State of Kerala
Citation: 2022 LiveLaw (Ker) 143
The Court issued guidelines to be followed by the concerned authorities while dealing with applications filed by accident victims or their dependents seeking compensation under the Employees Compensation Act, 1923. While disposing of a suo motu petition, a Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly accepted the report submitted by the Kerala State Legal Services Authority wherein it had suggested a few mechanisms to establish a proper system for effective consideration of such applications.
Case Title: Sulaiman v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 151
The Court recently ruled that one cannot prefer an appeal under provide to Section 372 of the Code of Criminal Procedure against a trial court's order, challenging the adequacy of sentence imposed upon the convict. Observing so, a Division Bench of Justice K. Vinod Chandran and C. Jayachandran dismissed a criminal appeal adding that such an appeal can only be preferred by the State under Section 377 of CrPC.
Case Title: Dr. Abdul Haleem PP v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 174
The Court has established that the regulations notified by the University Grants Commission (UGC) that determine qualifications for selection to various posts in universities in a State do not impact the right of the State government to provide reservations for backward classes. A Division Bench of Justice A.K Jayasankaran Nambiar and Justice Mohammed Nias C.P stated that it did not see how the UGC Regulations can affect the reservation policy of a State.
Case Title: Shameena Siddique & Anr. v. M. Abubekhar Siddiq & Ors.
Citation: 2022 LiveLaw (Ker) 200
The High Court has ruled that a Magistrate is empowered to decide the pela of talaq raised by the husband in his wife's petition filed under the Domestic Violence Act if he disputes their marital status on that ground. Justice Kauser Edappagath thereby allowed a criminal revision petition holding that the finding of the appellate court that the Magistrate has no power to decide the validity of the talaq is wrong and only to be set aside.
Case Title: Mujeeb Rahiman v. Thasleena & Anr.
Citation: 2022 LiveLaw (Ker) 218
In a significant judgment, the Court has reiterated that a divorced Muslim woman can seek maintenance under Section 125 of CrPC until she obtains relief under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act while adding that an order passed under Section 125 shall continue to remain in force until the amount payable under Section 3 of the Act is paid. It was also held that the wife cannot be allowed to circumvent the provisions of the Act by refusing the offer made by the husband to make the payment under Section 3 without any valid reason.
Case Title: Philip K.J v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 224
The Kerala High Court recently held that Rule 67A of the Kerala Government Servants Conduct Rules, 1960 does not curtail a religious denomination's right to manage its own affairs available under Article 26(B) of the Constitution of India in any manner. Rule 67A prohibits any Government Servant from being an office-bearer of any communal or religious organisation or of such trust or society. Justice T.R. Ravi observed that what is protected under Article 26 (B) is the right of a denomination to manage its own affairs in matters of religion and not regarding the election of office-bearers.
Case Title: X v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 239
The Kerala High Court issued a set of suggestions for the State to consider to assist survivors of child abuse or sexual violence, while particularly emphasising the need to take steps to publicize the Toll-Free Number '112' as an Emergency Response Support System. Justice Devan Ramachandran reiterated that the growing number of cases of hapless victims being driven to stages of despondency bears testimony to the suspicion that the measures currently in place are not being implemented properly.
Case Title: Raphy John v. Land Revenue Commissioner & connected matters.
Citation: 2022 LiveLaw (Ker) 242
The Kerala High Court ruled that no quarrying activities are permitted on land assigned for cultivation and thereby directed the State Government to take steps for the resumption of such land, notify and exempt the provisions of required. Overruling a Single Judge decision, a Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly in a batch of petitions moved by filed by the quarry owners and the Stated related to quarrying in lands assigned for rubber cultivation at the State's capital.
Case Title: T.A Ansad v. Sanjay Kumar Thunjhunwala & Ors.
Citation: 2022 LiveLaw (Ker) 257
In an interesting development, the Kerala High Court has ruled that in accident cases where two vehicles are involved, contributory negligence cannot be found against the driver of the other vehicle involved in the accident solely relying on the recitals in the scene mahazar, ignoring the police charge which attributes negligence only against one driver. Justice A. Badharudeen thereby set aside the order of the Motor Accidents Claims Tribunal and allowed the appeal challenging the impugned award.
Case Title: Abdul Gafoor @ Kunhumon v. Asst. Director, Directorate of Enforcement & Ors.
Citation: 2022 LiveLaw (Ker) 258
The Kerala High Court has recently ruled that while considering a bail application under the Prevention of Money Laundering Act, the twin conditions specified in Section 45(1) of PMLA and the general principles governing the grant of bail under Section 439 of CrPC should be considered. After examining Sections 65 and 71 of the PMLA, Justice Kauser Edappagath found that PMLA has an overriding effect and the provisions of the CrPC would apply only if they are not inconsistent with the provisions of the said Act.
Case Title: Nushath Koyamu v. Union of India & Ors.
Citation: 2022 LiveLaw (Ker) 259
The Court has recently ruled that failure to supply the documents which were relied upon by the detaining authority for arriving at the subjective satisfaction to pass the detention order affects the rights of the detenus under Article 22(5) of the Constitution of India, particularly when they were specifically requested for by them. A Division Bench of Justice A.K Jayasankaran Nambiar and Justice Mohammed Nias C.P, therefore, quashed the detention order observing that the non-supply of the documents had vitally affected the right of the detenus under Article 22(5).
Case Title: Anzar v. Sreedeviyamma & Anr.
Citation: 2022 LiveLaw (Ker) 262
The Court has recently ruled that an amendment application containing inconsistent pleas with that of the original written statement can be submitted without withdrawing wilful admission raised in the statement and that such applications were bound to be admissible. Justice A. Badharudeen thereby set aside the order of the lower court which had dismissed an amendment application finding it to be inconsistent with the petitioner's earlier stand in his written statement.
Case Title: Suo Motu v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 265
The Court has recently held that the use of high-power audio systems with multiple boosters, power amplifiers, speakers and sub-woofers producing loud noise is legally impermissible in motor vehicles. A Division Bench of Justice Anil K Narendran and Justice P G Ajithkumar added that loud sound produced by such audio systems with a rating of several thousand watts PMPO (Peak Music Power Output) will not only impair the hearing of the driver and the passengers but also cause a distraction to other drivers and road users.
Case Title: Antony v. V.K. Suresh & Ors.
Citation: 2022 LiveLaw (Ker) 272
The Court has recently established that a claimant who was compensated by his own insurer is not entitled to get any compensation again for the very same damages from the owner or insurer of the offending vehicle in cases of motor accidents. Justice A. Badharudeen held so after finding that the Apex Court had held that the law of insurance recognises an equitable corollary of the principle of indemnity; when the insurer had indemnified the insured, the rights and remedies of the insured against the wrongdoer stand transferred to the insurer.
Case Title: Suresh Raj v. National Investigation Agency
Citation: 2022 LiveLaw (Ker) 277
The Court held that a Special Court constituted under the National Investigation Agency Act can invoke the powers under Section 306 of the Code of Criminal Procedure (CrPC) to grant pardon to an accused at the post cognizance stage. A Division Bench of Justice K. Vinod Chandran and Justice C. Jayachandran also opined that it is always advisable for a Special Court to consider an application for grant of pardon by itself if cognizance is taken directly, though it can be referred to the Chief Judicial Magistrate.
Case Title: Oriental Insurance Co. Ltd v. V. Babu & Ors.
Citation: 2022 LiveLaw (Ker) 278
The Court has held that in a claim under Section 166 of the Motor Vehicles Act, the petitioners must prove not only the negligence on the part of the driver or rider but also prove that the person alleged to have sustained injuries in a motor accident died in consequence of the accidental injuries. Justice A. Badharudeen added that it is the burden of the petitioners to adduce evidence to satisfy the allegations raised by them since grant of compensation therein is based on the principle of `fault' liability.
Case Title: K. Sumangala Devi v. Binu P.N & Ors.
Citation: 2022 LiveLaw (Ker) 281
The Court has ruled that the right to preferential appointment obtained by a claimant under Rule 51A of Chapter XIV-A of the Kerala Education Rules (KER) does not continue to be available to them once this right has been effectuated through an appointment in future vacancies that arise in any category of teaching posts under the same educational agency. A Full Bench of Justice A.K Jayasanaran Nambiar, Justice Raja Vijayaraghavan V and Justice Mohammed Nias C.P thereby differed with the position in Sandhya T.N v. Jalaja Kumari & Ors [2008 (3) KLT 655] while adjudicating upon a reference made by the Division Bench doubting the correctness of the proposition of law laid down in the impugned decision.
Case Title: C.C Joy v. C.D Mini & Anr.
Citation: 2022 LiveLaw (Ker) 287
The High Court recently ruled that the intention of the parties is a key factor in determining if a transaction was benami or not, which could be ascertained from the tests laid down by the Apex Court for this purpose. A Division Bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas also laid down that as long as there is no evidence to the contrary, when a husband purchases property joining his wife as a name lender, he is still the beneficiary of such property, but if it was purchased in her favour, then she would be the beneficiary.
Case Title: Suresh Raj v. National Investigation Agency
Citation: 2022 LiveLaw (Ker) 291
The Court has held that under Sections 306 and 307 of the Code of Criminal Procedure (CrPC), a pardon can be granted to any person even if they have not been arraigned as an accused in the final report, as long as they were privy to the offence. A Division Bench of Justice K. Vinod Chandran and Justice C. Jayachandran opined so after observing that the language employed in Sections 306 and 307 is not 'an accused person' but 'any person', which implies that the person to whom pardon is to be tendered need only be 'directly or indirectly concerned in or privy to' the offence.
Case Title: Jayachandran V. v. State of Kerala & Anr.
Citation: 2022 LiveLaw (Ker) 296
The Court has held that a delinquent's right to receive the enquiry report is considered an essential part of a reasonable opportunity to be extended to them and a refusal to furnish the report amounts to a denial of their right to defend themselves in the disciplinary proceedings. A Division Bench of Justice A.K Jayasankaran Nambiar and Justice Mohammed Nias C.P also held that even if such a right is not explicitly stated in the statute, being a fundamental and essential part of the natural justice, it must be read into every statute.
Case Title: Amir & Anr v. State of Kerala
Citation: 2022 LiveLaw (Ker) 307
The High Court has laid down the procedure to be adopted when there is a case and a counter case and the trial court is of the opinion that the counter case is to be discharged. Justice P.V Kunhikrishnan opined that trial courts should refrain from taking shortcuts by dismissing the counter-case on flimsy grounds through non-speaking orders.
Case Title: Jayachandran v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 313
The High Court has ruled that potential cabinet papers which have not yet been brought before the Council of Ministers are exempted from disclosure under the Right to Information Act. Section 8(1)(i) of the RTI Act exempts disclosure of cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers. Justice Murali Purushothaman held that such exemption is also applicable to "potential" cabinet papers since, if disclosure of information is allowed before it reaches the Council, the provision for exemption under Section 8(1)(i) of the Act will stand defeated.
Case Title: Bharat Petroleum Corporation & Anr v. Saju A.R & Ors.
Citation: 2022 LiveLaw (Ker) 314
The High Court held that a writ petition in cases where an employee is effectively seeking the enforcement of rights conferred under an industrial settlement is not maintainable before a High Court if the rights in question can only be traced to the settlement and not to any common or civil law. A Division Bench of Justice A.K Jayasankaran Nambiar and Justice Mohammed Nias C.P ruled that in labour matters, the origin of the right alleged to be infringed decides if a High Court should exercise its discretionary remedy under Article 226 of the Constitution to entertain a petition filed by an employee alleging infringement of his rights by the employer.Case Title: Southern Railway v. M/s Cherian Varkey Construction Co. Pvt Ltd
Citation: 2022 LiveLaw (Ker) 315
The High Court has held that the cause of action giving a party the right to refer a dispute to arbitration only accrues when there is a clear and unequivocal denial of a right by one party by the other. Holding so, a Division Bench of Justice P.B. Suresh Kumar and Justice C.S Sudha dismissed the appeal moved by Southern Railway challenging the decision of the Additional District Court.
Case Title: Binoy Kurian v. Varkey Joseph
Citation: 2022 LiveLaw (Ker) 334
The Kerala High Court recently, while disposing of two petitions, held that the exemption provided under Section 60(1)(c) of the Code of Civil Procedure is not applicable to a charge decree or decree where there is a statutory charge, over the property. Justice A Badharudeen further opined that there is no reason to differentiate between a charge decree and a decree where a statutory charge is created while considering exemption provided under Section 60(1)(c).
Case Title: Inspector General of Registration & Anr v. Riyasudheen K & Ors.
Citation: 2022 LiveLaw (Ker) 338
The Kerala High Court recently held that a private organisation cannot use the name of a State in its title, irrespective of the profit or purpose for which it is constituted, even if it is a non-commercial organisation going by the Emblems and Names (Prevention of Improper Use) Act, 1950 and the corresponding Rules. A Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly clarified that the use of name of a particular State is prohibited not only for the purpose of trade or business but also for calling or profession.
Case Title: Cochin University of Science and Technology v. Dr P. V. Sasikumar
Citatiton: 2022 LiveLaw (Ker) 339
The Kerala High Court on Monday while dismissing a petition held that teachers come within the preview of 'employee' as defined under the Payment of Gratuity Act. Justice Murali Purushothaman further clarified that CUSAT, being an educational institution, is an establishment under section 1(3)(c) of the Act.
Case Title: Dhanya & Anr v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 340
The Kerala High Court ruled that a licence under the Kerala Places of Public Resort Act, 1963 is necessary for starting and functioning a gymnasium in the State as long as the Act remains in force. Justice P.V. Kunhikrishnan thereby directed the State to instruct all Municipalities, Corporations and Panchayats to send notices to the gyms in the State functioning without a license within 3 weeks.
Case Title: M/s Holmarc Opto Mechatronics (P) Ltd v. Secretary, Kalamassery Municipality & Ors.
Citation: 2022 LiveLaw (Ker) 343
The Kerala High Court recently held that undertakings being established or proposed to be established in notified industrial areas shall be exempted from obtaining any type of permits from Municipalities or Grama Panchayats for such construction. Justice Shaji P. Chaly added that such exemption is provided to promote industries in the State and to facilitate an easy mechanism to start such establishments without being encumbered by legal complexities.
Production Of Succession Certificate Mandatory When Decree Holder Dies Only If Decree Amount Comes Under 'Debts' Or 'Securities': Kerala High Court
Case Title: M. Baburaj v. State of Kerala
Citation: 2022 LiveLaw (Ker) 353
The Kerala High Court held that the production of a succession certificate is mandatory as per Section 214(1)(b) of the Succession Act when the decree-holder dies in cases where the decree amount comes under the category 'debts' or 'securities'. Justice A Badharudeen further added that when the decree-holder dies after the deposit has been made, an exemption is made for the production of a succession certificate.
Case Title: X v. State of Kerala
Citation: 2022 LiveLaw (Ker) 370
In a significant development, the Kerala High Court has notified a list of directions to the State authorities to set up a gender-neutral victim protection protocol to ensure that all survivors of sexual abuse are empowered and encouraged to approach law enforcement agencies. Justice Devan Ramachandran issued the directions to secure the effective execution of the mechanisms already established for the benefit of the survivors such as the toll-free number 112, 24/7 access to crisis centres and legal support. The Judge also commented on the depth and complexity of the distress of a sexual assault survivor, while adding that it is to be defined.
Case Title: XXX v. Registrar of Births and Dead Pathanamthitta Municipality and ors.
Citation: 2022 LiveLaw (Ker) 373
In a significant order, Kerala High Court on Tuesday, while allowing a Writ Petition held that a person has the right to not specify the name of their father in identity documents. The Court passed the order recognising the agonies faced by children of unwed mothers and rape victims. Referring to the Mahabharata charcater Karna, the Court observed in the judgment "We want a society with no such characters like "Karna," who curses his life because of the insult he faced for not knowing the whereabouts of his parents".
Case Title: Shan S & Anr. v. Marriage Officer
Citation: 2022 LiveLaw (Ker) 384
The Kerala High Court recently ruled that Indian diplomatic officers in non-Apostille countries are empowered to administer oath, take affidavits and do notarial acts as per Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act. Justice V.G. Arun added that such oath, affidavit and notarial act administered, sworn or done by or before any such diplomatic officer shall be effectual as if duly administered, sworn or done by or before any lawful authority in the State.
Case Title: Smitha M.G v. State of Kerala and Ors.
Citation: 2022 LiveLaw (Ker) 385
The Kerala High Court on Wednesday, while allowing a writ appeal, observed that the Court exercising power under Article 226 of the Constitution could not refrain from granting a relief to which a party is entitled, merely for the reason that a specific relief had not been sought in petition. A Division Bench consisting of Justice P.B. Suresh Kumar and Justice C. S. Sudha observed, "Merely for the reason that a specific relief has not been sought in the writ petition, it is not an impediment for the court exercising power under Article 226 of the Constitution to grant a relief which a party is entitled to."
Case Title: Vasanthan B. v. Sub Inspector of Police & Ors.
Citation: 2022 LiveLaw (Ker) 396
The Kerala High Court on Monday held that the procedure contemplated under the Code of Criminal Procedure (CrPC) to initiate prosecution against an accused can be used for offences under Section 7 of the Kerala Land Conservancy Act.
Justice Ziyad Rahman A.A added that CrPC was applicable since the Act did not provide for a specific procedure for the same. The Judge opined that the fact that offences under Section 7 were made cognizable fortified this view.
Case Title: Centre for Professional and Advanced Studies v. Abhitha Karun & Ors.
Citation: 2022 LiveLaw (Ker) 400
The Kerala High Court recently ruled that female officers appointed on a contract basis are entitled to the benefit of the Maternity Benefit Act. The Court further ruled that the term 'establishment' under the Act can be any establishment within the meaning of any law that is in force in the State in relation to establishments.
Upon examining the relevant provisions and precedents, the Division Bench of Justice P.B. Suresh Kumar and Justice C.S Sudha also concluded that the Special Rules of a registered society cannot override the provisions of the Act, which is a Central Act.
Case Title: Ajayakumar & Anr. v. State of Kerala
Citation: 2022 LiveLaw (Ker) 405
The Kerala High Court on Tuesday held that in dowry death cases, Section 113B of the Indian Evidence Act casts a reverse burden on the accused to disprove the prosecution case. It added that if he fails to rebut the presumption under Section 113B, the court is bound to act on it.
Justice A. Badharudeen ruled that the standard of proof in cases involving reverse burden was on the basis of `preponderance of probabilities' while for the prosecution it was 'beyond all reasonable doubt'.
Case Title: Jumaila Beevi v. A. Nissar
Citation: 2022 LiveLaw (Ker) 411
The Kerala High Court on Monday ruled that an order of cancellation of maintenance under Section 127(2) of the Code of Criminal Procedure (CrPC) always operates prospectively and not retrospectively.
A Division Bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas added that such cancellation orders cannot date back to the date of application and will operate only from the date the maintenance was cancelled.
Case Title: Panayppilly Sree Narayana Guruswami Trust v. Corporation of Kochi & Ors.
Citation: 2022 LiveLaw (Ker) 415
The Kerala High Court recently ruled that a building given on rent will not be exempted from property tax under Section 235 of the Kerala Municipality Act merely because the rent received is utilised for charity purposes.
Upon going through the provision, Justice Shaji P. Chaly observed that property tax exemptions only applied to buildings utilised for the specified proposes while emphasising that what is exempted thereunder was the building and not the rent received to the building, even if it was utilised for charity.
Case Title: Saritha S. Nair v. Union of India
Citation: 2022 LiveLaw (Ker) 421
In a significant decision, the Kerala High Court on Thursday held that a statement recorded under Section 164 of the Code of Criminal Procedure is a public document falling under Section 74(1)(iii) of the Indian Evidence Act since it is the record of an act of a public officer done in the discharge of his duty.
However, Justice Kauser Edappagath also clarified that no person is entitled to a copy of the 164 statement until the final report in the case has been filed and cognizance is taken in the matter. The Judge emphasised that in the case of a stranger seeking such copies, they are bound to furnish genuine and tangible interest in the document.
Case Title: Godson v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 425
The Kerala High Court on Thursday held that non-compliance with bail conditions alone is not a ground to cancel the bail already granted to the accused since such cancellation affects the personal liberty of a person under Article 21 of the Constitution.
Justice Ziyad Rahman A. A clarified that while considering an application to cancel the bail on the ground of non-compliance with the conditions, the court has to consider the question of whether the alleged violation amounts to an attempt to interfere with the administration of justice or as to whether it affects the trial of the case in which the accused is implicated.
Case Title: Nirupama Padmakumar & Ors. v State of Kerala & Ors
Citation: 2022 LiveLaw (Ker) 428
The Kerala High Court on Friday directed the State to expeditiously frame a policy to issue community certificates to persons belonging to the non-religious category such that they can avail the benefits available to Economically Weaker Sections (EWS).
Justice V.G Arun also observed that a government which claims to be progressive cannot deny non-religious category persons the benefits merely because they choose not to belong to any community or caste.
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.
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.
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) 443
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.Case Title: M. P. Chothy v. Registrar General & Ors.
Citation: 2022 LiveLaw(Ker) 444
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.
Case Title: Flemingo Duty Free Shop Private Ltd. versus Airports Authority of India
Citation: 2022 LiveLaw(Ker) 445
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.
Case Title: Anuvarudeen v. Sabina
Citation: 2022 LiveLaw(Ker) 450
The Kerala High Court recently, while setting aside two orders restraining a Muslim man from invoking irrevocable Talaq and from conducting a second marriage, held that the Courts have no role in restraining the parties from invoking their personal law remedies as otherwise, it would be violative of their rights protected under Article 25 of the Constitution of India.
Division Bench consisting of Justice A. Muhamed Mustaque and Justice Sophy Thomas observed that the Court have no role in restraining the parties from invoking their personal law remedies as otherwise, it would be an encroachment of their constitutionally protected right.
Case Title: Anoop v. State of Kerala & Ors.
Citation: 2022 LiveLaw(Ker) 452
The Kerala High Court on Friday directed the State Government and the CBSE to issue necessary orders making it mandatory for every school in the state under their control to include a "Prevention-Oriented Program on Sexual Abuse" in the curriculum.
Justice Bechu Kurian Thomas expressing his anguish at the alarming rise in the number of sexual offences committed on school children and noticing that, in many instances, the perpetrators themselves were students, observed that the voice of the victims of sexual abuse should not be suppressed, and it is only through education that the victim can be empowered to speak out.
Case Title: Noorul Islam Samskarika Sangham v. The District Collector, Malappuram & Ors.
Citation: 2022 LiveLaw (Ker) 453
The Kerala High Court recently, while disallowing a petition to convert a commercial building to a Muslim place of worship, issued a direction to the State Government to close down religious places and prayer halls that were functioning illegally and without permission.
Justice P.V. Kunhikrishnan directed the Chief Secretary of State of Kerala and the State Police Chief to issue necessary orders / circulars directing all the officers concerned to see that there were no illegal functioning of any religious places and prayer halls without obtaining permission from the competent authorities as per the Manual of Guidelines and if any such religious place or prayer hall is functioning without necessary permission, to close down the same immediately. The Chief Secretary of the State of Kerala was further directed to issue necessary orders/circulars directing the competent authority as per the Manual of Guidelines to consider each application to start religious places and prayer halls strictly and the approval can be granted only in appropriate cases. In such orders, it also ought to be mentioned that that the distance to the nearest similar religious place/prayer hall is the one of the criteria while considering the application for religious places and prayer halls.
Case Title:James Robert Edward Peirce & Ors. v. Anna Mathew & Ors.
Citation: 2022 LiveLaw (Ker) 457
The Kerala High Court recently held that an application with respect to the guardianship of a minor has to be made to the District Court having jurisdiction in the place where the "minor ordinarily resides".
A Division Bench consisting of Justice A Muhamed Mustaque and Justice Sophy Thomas observed that citizenship or domicile of the father of a child, or the fact that rightly or wrongly the child had acquired a foreign passport, will have no bearing in determining the jurisdiction.
Case Title: Fathima Thazkiya O v. National Medical Commission and Connected Cases
Citation:2022 LiveLaw(Ker) 460
The Kerala High Court recently held that the direction issued by the National Medical Commission(NMC) that the fee in 50% of seats in Private Medical Colleges and Deemed Universities should be at par with the fees in Government medical colleges will not apply in the State of Kerala.
The Court held so taking note of the fact that there is no concept of "Government Quota" or "Management Quota" in private medical colleges in Kerala and that the fees of private medical colleges are fixed by a statutory body, Admission and Fee Regulatory Committee(AFRC).
Case Title: State Tax Officer & Anr Vs. Baiju A.A
Citation: 2022 LiveLaw(Ker) 462
The Kerala High Court has held that legislative competence to amend the Kerala Value Added Tax (KVAT) Act after the introduction of the GST Act is impermissible.
The division bench of S.V.Bhatti and Justice Basant Balaji has observed that the amendment made by the Finance Act of 2018 to the provisions of the erstwhile KVAT Act to enable the department to initiate assessment proceedings in respect of assessments pending as of March 31, 2018 was illegal because the KVAT Act has already been repealed.
Case Title: Jahir Hussain v. State of Kerala & Anr.
Citation: 2022 LiveLaw(Ker) 467
The Kerala High Court recently, while acquitting a murder convict and reversing the order of the trial court, highlighted the need for a speedy trial and proper assistance to prisoners for filing appeals to avoid the long periods of incarceration.
Division Bench consisting of Justice K. Vinod Chandran and Justice C Jayachandran, pointing out the distressing aspect of the continued incarceration of under-trial prisoners and the delay occasioned in conducting trials, opined that High Court could issue directions to Trial Courts to take up matter based on the date of incarceration of convicts.
Case Title: General Convenor, Kerala State School Kalolsavam, 2017-2018 & Anr v. Arundhathi Krishna J. & Anr., and connected cases
Citation: 2022 LiveLaw (Ker) 471
The Kerala High Court recently held that any question as to whether the Lok Ayukta or Upa Lok Ayukta can entertain any complaint regarding any grievance or allegation, would have to be ascertained according to the factual circumstances, and on a case to case basis and no law can be laid down by the Court in this regard.
The Division Bench comprising of Justice S. Manikumar and Justice Shaji P. Chaly further directed the authorities under various statues such as Upa Lok Ayukta, Human Rights Commission, Juvenile Justice Board, Civil Courts etc., to take note of and abide by the directions issued by the same court in another case W. P. (C) No. 18950 of 2018, while dealing with any complaints as to grievance or allegation in respect of the participation of students in cultural or other events at District or State Levels.
Case Title: Abdul Majeed & Anr v. P.V. Prajosh & Ors.
Citation: 2022 LiveLaw (Ker) 473
The Kerala High Court recently held that in the case of benevolent legislations, such as the Motor Vehicles Act, evidence must be evaluated in a liberal manner, without insisting on an extreme form of 'preponderance of probabilities and possibilities'.
"It is the trite law that 'preponderance of probabilities and possibilities' is the rule of evidence to be applied while querying proof of allegations involved in civil cases. When coming to benevolent legislations, the rule of evidence is nothing but 'preponderance of probabilities and possibilities' and in such cases, the evidence shall be evaluated in a liberal manner without insisting for the extreme form of 'preponderance of probabilities and possibilities'", the Court observed.
In this light, Justice A. Badharudeen observed that when a person who had been working as a cleaner in a lorry died, it wouldn't always be possible to adduce documentary evidence to prove his job as a cleaner, and in such circumstances, the available evidence ought to be liberally construed.
Case Title: Dr. Mathew Jacob & Ors v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 480The Kerala High Court recently considered the question of whether an authority under the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002 is empowered to issue notice and conduct enquiry on a complaint regarding alleged misconduct in transplantation of human organs, since the latter is governed by the Transplantation of Human Organs and Tissues Act, 1994, and answered the question in the affirmative.
The Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly observed that the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002 (hereinafter, Ethics Regulations 2002) is a self contained code since it clearly specifies the procedure and manner in which disciplinary action has to be proceeded with, and no bar to this authority could be found in the provisions of the Transplantation of Human Organs and Tissues Act, 1994 (hereinafter THOTA 1994), either when there is any professional misconduct, or to conduct an enquiry on a complaint received in this regard.
Case Title: G. M. Sheik & Ors. v. M/s Raja Biri Private Ltd & Ors.
Citation: 2022 LiveLaw(Ker) 483The Kerala High Court recently observed that an order passed without issuing notice to the opposite party cannot be brought under the purview of Section 36 CPC and it cannot be executed through court until the same is merged in a subsequent order after notice to the opposite party.
Justice P. Somarajan observed that in cases where the ex parte order has been passed without issuing notice to the opposite party, including an order passed under the proviso attached to Rule 3 of Order XXXIX CPC, will not have any binding force on the opposite party, since it is deprived of "audio alteram partem" (right to be heard) which is a fundamental requirement for making the order binding on the parties. Furthermore, the only exception to this fundamental principle is with respect to administrative matter when there is no occasion for causing prejudice to the opposite party, and also in the exercise of legislative authority.
Case Title: Jeenamol Varghese v. State of Kerala & Anr.
Citation: 2022 LiveLaw(Ker) 488The Kerala High Court recently directed all the Registrars under the Municipality and Grama Panchayat to conduct an enquiry adhering to provisions under the Registrations of Birth and Deaths Act, 1969, while considering applications seeking correction of Birth Certificates, and not to reject such applications summarily.
Justice Amit Rawal made the direction upon noting instances where the Registrars, without adhering to the provisions of Section 15 and Rule 11 and other rules, are rejecting applications for the correction of birth records. "If any such application is made for correction or cancellation of entry in the records of Registrar, the Registrar is required to hold an enquiry...The Government Pleader is directed to circulate the order of this Court to all the Registrars under the Municipality and the Grama Panchayat to follow the procedure to prevent spate of litigations in this Court wherein the applications are being rejected summarily".
Case Title: S. Yadava v. Kerala State Co-Operative Bank & Ors.
Citation: 2022 LiveLaw (Ker) 490The Kerala High Court on Friday held that under Rule 198 (7) of the Kerala Co-operative Societies Rules, the employer is entitled to continue disciplinary proceedings after retirement of employee, as well as withhold the retiral benefits until the culmination of such proceedings.
The Division Bench comprising Justice A.K. Jayasankaran Nambiar, and Justice Mohammed Nias C.P., while holding so, reasoned that, "If the argument that the proceedings cannot continue after the retirement is accepted, any delinquent employee can commit any fraud, misappropriation, grave dereliction of duty etc., on the eve of his retirement and can plead that he is beyond the reach of the employer, which would result in such delinquent employee escaping without punishment. Law cannot allow such a course and in all those cases larger public interest must be the guiding factor to decide the case".
Case Title: Aisha v. Xavier & Ors.
Citation: 2022 LiveLaw (Ker) 493The Kerala High Court on Thursday held that when the owner of a vehicle is satisfied that the driver has a license and is driving competently, there would be no breach of Section 149(2)(a)(ii) of the Motor Vehicles Act, and hence the Insurance Company would not be absolved from their liability to compensate the victim.
Justice Sophy Thomas, while holding so, observed, "Ultimately, if it is found that the license was fake, the Insurance Company will continue to remain liable, unless they prove that the owner-insured was aware or had noticed that the license was fake and still permitted that person to drive. Even in such a case the Insurance Company would remain liable to the innocent third party, but it may be able to recover from the insured".
Case Title: Sanil James v. State of Kerala & Anr.
Citation: 2022 LiveLaw(Ker) 496The Kerala High Court on Tuesday, while considering a Revision Petition observed that in an offence under Section 138 of the Negotiable Instruments Act, when the Court imposes sentence of imprisonment and fine, it has to order payment of compensation from the amount of fine as provided under Section 357(1)(b) of CrPC.
Justice A. Badharudeen observed: "...in an offence under Section 138 of the N.I Act when the court imposes imprisonment and fine, fine forms part of the sentence. In such cases, the court has to order payment of compensation from the amount of fine as provided under Section 357(1)(b) of Cr.P.C."
Case Title: Secretary to Advocate General & Ors. v. State Information Commissioner & Anr.
Citation: 2022 LiveLaw (Ker) 507
The Kerala High Court on Friday held that the legal advice rendered by the Advocate General to the Government is exempted from disclosure under Section 8(1)(e) of the Right to Information Act, 2005 (RTI Act, 2005) as the relationship between the two constituted a fiduciary relationship.
Justice P.V. Kunhikrishnan in the ruling said:
Case Title: Sheeba George v. State Election Commission & Ors.
Citation: 2022 LiveLaw (Ker) 510
The Kerala High Court recently held that when a candidate, who contested elections as an independent contender, subsequently makes a declaration about being a candidate of a party or coalition, the same would attract disqualification on the ground of defection under Section 3(1)(c) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999.
Upholding the decision of the State Election Commission to disqualify an elected member of Keerampara Grama Panchayat, the Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly said the law relating to defection in regard to the members of the local body has been made with the intention of upholding the constitutional principles, the democratic setup and the rule of law prevailing in the country. "This we say because, in order to sustain the faith of the citizens in the democratic set up of conducting elections, and for retaining and sustaining the confidence of the citizens on the candidates elected by the electorate, a strict view is to be adopted in the matter of defection. It is with the said basic intention that the Act, 1999 and Rules, 2000 were brought into force," said the court.
Case Title: Lalan P. R. & Anr v. Chief Registrar General of Marriages (Common) & Anr.
Citation: 2022 LiveLaw (Ker) 520
In a significant order, the Kerala High Court on Wednesday held that the religion of the parties is not a consideration for registering marriages under the Kerala Registration of Marriages (Common) Rules, 2008.
Justice P. V. Kunhikrishnan observed, "The only condition for the registration of the marriage as per Rule 6 of the Rules, 2008 is that the marriage is to be solemnized. Religion of the parties is not a consideration for registering marriages."
It added that simply because the father or mother of one of the parties to a marriage belongs to a different religion, it is not a reason to reject an application submitted for registration of the marriage as per the Rules, 2008.
Case Title: Chorayil Kunhiraman v. Sharaful Islam Madrassa Committee
Citation: 2022 LiveLaw (Ker) 526
The Kerala High Court recently held that landlords who are exempted from application of all or any of the provisions of the Kerala Building (Lease and Rent Control) Act, 1965 are free to waive such exemption.
The Division Bench comprising Justice P.B. Sureshkumar and Justice C.S. Sudha held that the exemption granted under Section 25 of the Act is a 'privilege' which the landlords may waive. It observed: "...a notification under Section 25 has been issued by the Government by which certain building or class of buildings have been taken out of the purview of the Act. Therefore it is a benefit or privilege that has been extended or given to the landlords or owners of such buildings, which they are free to waive".
Case Title: The Manager, Sree Vivekananda Higher Secondary School v. State of Kerala & Ors and Other Connected Cases
Citation: 2022 LiveLaw (Ker) 534A division bench of the Kerala High Court recently upheld the decision of the Single Judge holding community-based reservation of 10 percent seats in plus one admissions of aided higher secondary schools run by managements, other than minorities and other backward classes communities, as unconstitutional.
The division bench of Justice Alexander Thomas and Justice Shoba Annamma Eapen said the 10% community quota reservation was simply a resurrection of what had been struck down by another Division Bench earlier in Akhila Kerala Dheevara Sabha & Anr. v. State of Kerala & Ors. "We are of the firm view that the present 10% reservation quota in managements other than minority and backward class communities is nothing but old wine in a new bottle, and it is a mere resurrection of the very same quota, which was interfered with by the Division Bench and accepted by the State, since the issuance of G.O. dated 09.06.2003. We are not in a position to appreciate why the State Government has again resurrected the 10% community quota in the present cases", the bench observed.
Case Title: M. Shabeer v. Anitha Bajee & Anr.
Citation: 2022 LiveLaw(Ker) 536The Kerala High Court on Wednesday said that the maximum amount of fine, including the interest, imposed in a case under Section 138 of the Negotiable Instruments Act, 1881 must not exceed twice the amount of the cheque.
Justice A. Badharudeen said the punishment provided for commission of offence under Section 138 of the N.I Act is imprisonment for a term which may extend to two years or with fine, which may extend to twice the amount of the cheque, or with both. "Thus the statutory provision is clear that the maximum fine shall be twice the amount of the cheque and nothing more. So, a blanket order, as in a civil case, directing the accused to pay fine amount along with interest @ 9% per annum for the principal cheque amount if exceeds at the time of payment, in excess of double the cheque amount, the said course of action is not permitted under law and courts must ensure that while ordering payment of fine, the same shall not exceed double the cheque amount," said the court.
Case Title: Jancy Joseph v. State of Kerala & Ors.
Citation: 2022 LiveLaw(Ker) 541
Quashing a preventive detention order under Kerala Anti-Social Activities (Prevention) Act (KAAPA), the High Court recently said the authorities should have considered the option of bail cancellation in respect of the first case against the detenu before resorting to the extreme measure of preventive detention.
The court clarified that it was not saying that such an option should "necessarily be mechanically pursued" in all cases, but asserted that consideration of such an option was highly crucial and relevant to the case before it.
The Division Bench consisting of Justice Alexander Thomas and Sophy Thomas said, "We have to bear in mind that, at the end of the day, what is involved is the curtailment of the personal liberties and freedoms of the detenu, which are guaranteed in terms of the safeguards contained in Articles 21 and 22 of the Constitution of India."
Case Title: Jollyamma V. Thomas v. State of Kerala & Ors.
Citation: 2022 LiveLaw(Ker) 544
The Kerala High Court on Wednesday suggested the General Education Department of the State to constitute an expert committee to address issues plaguing its internal functioning such as recruitment, database management, etc.
It noted apparent absence of accurate data on students, instructors, and non-teaching personnel in the State's Government and Aided Schools, eventually leading to increased disputes and consequential litigation.
It suggested the Department to form a committee comprising former DGEs with experience, experts from State Government initiatives such as KITE (Kerala Infrastructure and Technology for Education), Digital University Kerala, Indian Institution of Information Technology and Management-Kerala and legal professionals with practical knowledge.
Justice Raja Vijayaraghavan V. was of the view that a substantial amount of litigation can be avoided if the department implements some improvements by leveraging the power of information and communication technology.
Case Title: Renoj R.S. v. State of Kerala & Anr
Citation: 2022 LiveLaw (Ker) 546
The Kerala High Court has held that the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) prevails over the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act). Thus, when offences under both the Acts have been alleged, the accused would be entitled to avail the procedure contemplated under the former for bail.
The Court found that by virtue of Section 31 of the POCSO Act which makes the provisions of the Code of Criminal Procedure (Cr.P.C.) applicable, the accused person could approach the High Court under Section 439 Cr.P.C.
Justice Bechu Kurian Thomas, while holding so, observed that,"...it is pertinent to notice that despite the SC/ST Act being amended in 2015 and 2018, the overriding effect of POCSO Act, in the event of inconsistency, has not been nullified or interfered with by the Parliament. Thus, it is evident that the legislature intended to give supremacy to the POCSO Act, even over the SC/ST Act, in the event of any inconsistency".
Case Title: Cardinal Mar George Alencherry v. State of Kerala
Citation: 2022 LiveLaw (Ker) 550
The Kerala High Court on Thursday addressed the issue of massive encroachment upon Government properties, particularly by religious/ charitable institutions and expressed dismay at the inaction on part of the Government, political leaders and the society at large.
"A congenial environment is still in existence in the entire State of Kerala promoting encroachment over the Government land with the apparent acquisition of properties by such institutions. This has given immense wealth and authority to religious institution to dominate the will of Government machineries and it is injurious to our democratic system and the principle of equality and liberty guaranteed under the Constitution".
Justice P. Somarajan thus directed that both the State and Central Government would be duty bound to follow the Constitutional mandate and preserve properties of bona vacantia and property that belong to the public at large. The Court directed that the properties obtained by such religious or charitable bodies and institutions have to be enquired into and investigated by taking proper action against the culprits.
Case Title: Sandra Stephen v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 554
The Kerala High Court has prima facie held that the extent of family house plot of a married woman living separately cannot be a reason for denying her EWS Certificate. It thus directed the Village Officer to issue a provisional Economically Weaker Section (EWS) Certificate to the Petitioner, subject to the final outcome of the Writ Petition.
Justice V G Arun while admitting the Writ Petition, observed that:
I find prima facie merit in the contention urged by the learned Counsel for the petitioner that, being a married woman living separately, the extent of her family's house plot cannot be a reason for denying the EWS certificate to the petitioner.
Case Title: Annamma Raju @ Bincy & Ors v. Shalet Jose & Ors.
Citation: 2022 LiveLaw (Ker) 555
The Kerala High Court on Thursday held that when transfer of a vehicle has been effected following the procedure in Motor Vehicles Act, 1988, the insurance policy taken out in respect of the vehicle is also deemed to have been transferred in favour of the transferee without any further process.
Justice Ziyad Rahman A.A., in this light further found that, "Though sub-section (2) of Section 157 provides for intimation of such transfer, since the statute is silent as to the consequence of failure in doing so, it can only be treated as directory in nature and not mandatory".
Case Title: XXXXX v. State of Kerala & Anr.
Citation: 2022 LiveLaw(Ker) 557
The Kerala High Court has held that in order to attract an offence punishable under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, the accused must not be a member of the SC/ST community and must be shown to have committed the offence with the knowledge about victim's caste/ community. In the absence of an averment to that effect, the offence under Section 3(2)(v) would not be attracted.
Justice Kauser Edappagath observed,
"Merely because a person who does not belong to a member of a Scheduled Caste/Scheduled Tribe commits any offence under the Indian Penal Code punishable with imprisonment for a term of 10 years or more against a person belonging to a Scheduled Caste/Scheduled Tribe, the offence u/s 3(2)(v) would not get attracted...The word found in the provision being "knowingly", an allegation about the assailant's knowledge or awareness that the victim is a member of Scheduled Caste/Scheduled Tribe at the time of the commission of the atrocity described under the provision must be there. Without the element of knowledge being incorporated in the allegations, the offence is unlikely to be attracted."
Case Title: XXXXX v. XXXXX
Citation: 2022 LiveLaw (Ker) 559
Observing that Islamic law recognises a Muslim woman's right to demand termination of marriage, the Kerala High Court has ruled that the will of the wife cannot be "related to the will of the husband" who may not be agreeing to the divorce.
Dismissing a review petition against a judgment wherein the court had recognized a Muslim woman's right to resort to Khula, the division bench of Justice A. Muhamed Mustaque and Justice C. S. Dias said: "In the absence of any mechanism in the country to recognize the termination of marriage at the instance of the wife when the husband refuses to give consent, the court can simply hold that khula can be invoked without the conjunction of the husband"
The court at the outset of the 59-page judgment said:
"This is a typical review portraying that Muslim women are subordinate to the will of their male counterparts. This review does not look innocuous at the instance of the appellant, but rather appears to have been fashioned and supported by clergies and the hegemonic masculinity of the Muslim community who are unable to digest the declaration of the right of Muslim women to resort to the extra-judicial divorce of khula, unilaterally".
Case Title: Das @ Anu v. State of Kerala
Citation: 2022 LiveLaw (Ker) 560The Kerala High Court on Friday ruled that the protection guaranteed under Article 20(3) of the Constitution of India does not extend to protecting an accused from being compelled to give his blood sample during the investigation of a criminal case.
Justice Kauser Edappagath said the privilege of Article 20(3) is applicable only to testimonial evidence and drawing DNA samples from the body of an accused in a criminal case, especially in a case involving sexual offence, will not violate his right against self-incrimination protected under Article 20(3). "The right against self-incrimination is just a prohibition on the use of physical or oral compulsion to extort testimonial evidence from a person, not an exclusion of evidence taken from his body when it may be material."
Case Title: Mangalam Publications (India) Pvt. Ltd. v. Employees Provident Fund & Ors.
Citation: 2022 LiveLaw (Ker) 565
The Kerala High Court on Wednesday said that 20% wages that had been paid to workers by the employer as 'interim relief' at the direction of government constituted Wage Board would come within the ambit of 'basic wages' for contributions under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952.
Justice P.V. Kunhikrishnan said that such 'interim relief' would not fall within the exceptions carved out for basic wages in Section 2(b)(ii) of the Act. The bench observed, "It is an admitted fact that 20% of the wages are paid as interim relief to all the employees. At no stretch of the imagination, this Court can conclude that this will come within the purview of Section 2(b)(ii) of the Act, 1952."
Case Title: V.K. Bhasi v. State of Kerala & Anr.
Citation: 2022 LiveLaw (Ker) 568The Kerala High Court recently embarked upon a detailed analysis of the Solatium Scheme of 1989 framed by the Central Government under Section 163(1) of the Motor Vehicles Act, 1988 which provides for compensation in hit and run accidents.
Justice P.V. Kunhikrishnan was of the opinion that the general public is not aware of the Scheme or the competent authority to be approached in order to submit an application for getting compensation in 'hit and run' cases. "A reading of Sections 161 to 163 of the Act, 1988 and the Solatium Scheme, 1989, will show that it is a complete code and a time limit is also prescribed for paying the compensation in 'hit and run' motor accident cases. The victims of hit and run motor accident cases should invoke the above provisions and the statutory compensation available to them should be utilised," the bench said while explaining the Scheme in detail.
Case Title: S. Rajeev Kumar v. The Director, Central Bureau of Investigation
Citation: 2022 LiveLaw (Ker) 572
Division Bench consisting of Chief Justice S. Manikumar and Justice Shaji P. Chaly observed that as per a notification issued by the Government in 2011, CBI, NIA and National Intelligence Grid are included in the Second Schedule to RTI Act, and therefore, CBI is not liable to furnish any information. "Therefore, it can be seen that once CBI is included in the second schedule in contemplation of Section 24 of the Act, 2005, the said organization is not liable to furnish any information".
Case Title: Sebastian Joseph & Anr v. The University of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 576The Kerala High Court recently held that when the UGC Regulations on Minimum Qualifications for appointment of Teachers in Universities and Colleges (UGC Regulations 2018) does not impose any upper age limit for the position of Professor, any stipulation in the Kerala University First Statutes 1977 cannot hold to the contrary.
Justice Devan Ramachandran observed, "...when the "UGC Regulations 2018" has deliberately and consciously refused to impose the stipulation of an upper age limit for the purpose of appointment as a Professor, I fail to understand how any such contra - stipulation in the "First Statutes" of the Kerala University, particularly when it was introduced as early as in the year 1986 – much before the "UGC Regulation" were framed - can operate to the detriment of persons like the petitioners".
Case Title: Jose and Ors. v. State of Kerala
Citation: 2022 LiveLaw (Ker) 584The Kerala High Court on Tuesday pointed an inconsistency in Sections 9 and 12 of the Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005 and urged the legislature to clear the same by way of an amendment. Section 9 provides that a person not below the rank of a Forester can seize the trees together with the tools, if the same is found to be in contravention of Section 6 of the Act. Sub-section (3) thereof provides that the Divisional Forest Officer (DFO) is the competent authority to file a final report before the competent Magistrate Court. However, the DFO is also the prosecution sanctioning authority under Section 12 of the Act.
In this light Justice A. Badharudeen observed: "The legislature must apply its wisdom either to designate an officer below the rank of the Divisional Forest Officer to file report as provided under Section 9(3) or the sanctioning authority shall be a person holding the post superior to the post of the Divisional Forest Officer. Such an amendment is inevitable to clear the inconsistency."
Case Title: Sofikul Islam v. State of Kerala
Citation: 2022 LiveLaw(Ker) 596
The Kerala High Court on Thursday observed that Aadhaar card is not recognized by the Juvenile Justice (Care and Protection of Children) Act, 2015, as a document of proof of the date of birth of an accused under the Act.
Justice Bechu Kurian Thomas observed that when there is a dispute regarding the age of an accused, if a certificate from the school is available, which specifies the date of birth, that alone can be looked into for the purpose of identifying the date of birth of the alleged child under section 94(2)(i) of the JJ Act, 2015.
Case Title: Akshay@Ajeesh@Ananthu v. State of Kerala & Anr and Akhila A.P. @ Lalu & Anr v. State of Kerala & Anr.
Citation: 2022 LiveLaw (Ker) 597
The Kerala High Court on Thursday held that an application for default bail, filed timely through e-filing mode, cannot be ignored by the trial courts for want of production of physical copy of the same.
Justice A. Badharudeen, said: "Now we are in the E-world. In many Courts e-filing is made mandatory and steps to complete mandatory e-filing in all Courts in India are on its final call. Such being the scenario, how can a court ignore an application filed through e-filing mode to hold that there was no petition filed within time for want of production of physical copy of the same within time".
Case Title: Khaledur Rahman v. State of Kerala & Anr.
Citation: 2022 LiveLaw (Ker) 600The Kerala High Court has ruled that a marriage between Muslims under personal law is not excluded from the sweep of the POCSO Act.
Justice Bechu Kurain Thomas said if one of the parties to the marriage is a minor, irrespective of the validity or otherwise of the marriage, offences under the POCSO Act will apply.
The court disagreed with the view taken by the Punjab and Haryana High Court in Javed v. State of Haryana (2022 LiveLaw (PH) 276); by Delhi High Court in Fija and Another v. State Govt. of NCT of Delhi and Others (2022 LiveLaw (Del) 793) and by Karnataka High Court in Mohammad Waseem Ahamad v. State (2022 LiveLaw (Kar) 436). "With respect to the learned Judges, I am unable to agree to the proposition laid down in those decisions that an offence under the POCSO Act will not get attracted against a Muslim marrying a minor," Justice Thomas said.
Case Title: Mani C Kappen v. Sunny Joseph & Ors.
Citation: 2022 LiveLaw(Ker) 603The Kerala High Court has held that the petitions filed under the Representation of People Act, 1951 come within the ambit of orders passed by the Apex Court extending the period of limitation in the wake of the widespread COVID-19 pandemic.
Justice C. Jayachandran observed:
"The expression "all other proceedings" as employed in the original order dated 23.03.2020 and "any other laws which prescribed period(s) of limitation for instituting proceedings" as employed in orders dated 08.03.2022, 27.04.2021, 23.09.2021 and 10.01.2022 leaves no room for any doubt that the Supreme Court intends to extend the period of limitation/outer limit fixed under any enactment. This Court, therefore, finds little merit in the contention of the petitioner that the benefit of the orders extending limitation is not applicable to a proceeding under the Representation of the People Act, 1951".
Case Title: Kuriachan Chacko & Ors v. State of Kerala & Ors. and Joy John & Anr v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 604
The Kerala High Court on Friday held that inclusion of events/ materials in the additional charge sheet, that are subsequent to filing of initial final report, is legally permissible. It added that as long as the evidence collected and the subsequent events point towards the commission of crime for which the report has been filed, the investigating agency would be justified in collecting such materials also and is in fact bound to forward it with the report.
The Single Judge Bench of Justice Bechu Kurian Thomas was of the view that determining as to whether such materials are relevant or even admissible are to be agitated during the trial. "The right of the investigating agency to collect all evidence cannot be cribbed, cabined or crippled. The Investigating Officer has to unearth the real truth behind the alleged crime so as to serve the ends of justice. In the said process, if he chances upon or collects materials that are even subsequent to the filing of the initial final report, it cannot be stated as a legal proposition that those materials cannot be included in the further final report or that they are prohibited. Under section 173(8) Cr.P.C, the officer has the power to obtain further evidence, both oral and documentary. The term 'further evidence' cannot be interpreted restrictively as including only those that were prior in time to the initial final report. Such evidence, if collected and included in the further final report, will be a matter to be appreciated, as mentioned earlier, at the time of trial", the Court observed.
Case Title: M.K. Surendrababu v. Kodungalloor Town Co-Op Bank Ltd. & Ors. and other connected cases
Citation: 2022 LiveLaw (Ker) 609Commenting on the delay in adjudication of cases, the Kerala High Court recently observed that introspection by the judiciary is also necessary or otherwise, people will lose faith in the system. The court directed its Registrar General and Registrar (Judiciary) to bring to the Chief Justice's notice the old writ petitions pending in different jurisdictions and take appropriate steps in accordance with his directions.
Justice P.V. Kunhikrishnan said some of the writ petitions are pending for about 20 years in the high court and blamed the Registry for "the sorry state of affairs". "I am forced to say that there are some latches on the part of the registry also for this sorry state of affairs. It is the duty of the registry to report before the jurisdictional roaster judge about the old cases, after getting permission from the Honourable Chief Justice. The jurisdictional judge may not be knowing about the old cases because in High court, the usual practice is that, once the cases are admitted, unless there is an urgent memo or a petition for an early hearing or other petitions for any directions, it will not be listed except for final hearing," said the court.
Case Title: Prasoon Sunny v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 610
The Kerala High Court on Friday directed the State and prison authorities to explore the possibility of providing sufficient space for advocates and clients to privately interact in jails.
While Senior Government Pleader Tek Chand submitted that there are space constraints in certain sub-jails, Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly observed, "...there should be sufficient space for the advocates and clients, to interact, and privacy should also be taken note of". The Court was dealing with a petition filed by Advocate Prasoon Sunny stating that there is no privacy for lawyer-client interactions in jails.
Case Title: Union of India & Anr v. Pavithran K. & Anr and other connected cases
Citation: 2022 LiveLaw (Ker) 611
The Kerala High Court on Tuesday held that a Government servant who retires on the last working day of the preceding month and whose annual increment falls due on the first of the succeeding month is not entitled for sanction of annual increment for the purpose of pension and gratuity.
The Division Bench comprising Justice A.K. Jayasankaran Nambiar and Justice Mohammed Nias C.P. passed the above order in a batch of petitions filed by Union of India against the order of Central Administrative Tribunal holding the retirees to be entitled to the same.
Citation: XXXXX v. State of Kerala
Citation: 2022 LiveLaw(Ker) 614The Kerala High Court on Thursday held that the offence punishable under Section 21 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 is a bailable offence. Section 21 makes the failure to report an offence under POCSO Act punishable with imprisonment upto six months or if the person is in charge of an institution or company, imprisonment can extend upto one year.
Justice Bechu Kurian Thomas said if the statute does not declare a particular offence as bailable or non-bailable, reference has to be made to the schedule attached to the CrPC.
The court noted Section 21 of POCSO Act makes contravention of Section 19 and Section 20 of the Act punishable but by itself does not declare the offence to be a non-bailable offence."A reading of the Schedule to Cr.P.C. extracted above evidences that if, under other laws, the offence is punishable with imprisonment for less than three years or with fine only, the offence is bailable and non-cognizable. It is thus evident that section 21 of the POCSO Act, which provides for a punishment of six months or a maximum of one year, is a bailable offence," said the court.
Case Title: Muhammed Shanavas v. Radhakrishnan & Ors.
Citation: 2022 LiveLaw (Ker) 618
The Kerala High Court recently said that a solitary instance of absence of a counsel or party on the day the case is listed cannot be a ground for the application being dismissed for default.
The division bench of Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen said: "The courts are created to adjudicate substantial interest of the parties rather than to dispose the cases in a numerical quantity. The court should be very sensitive in dealing with the cases of litigants, especially, many of the cases are remained non represented due to laches or negligence on the part of the counsel".
Case Title: Hussain v. State of Kerala and another
Citation: 2022 LiveLaw (Ker) 619
The Kerala High Court has observed that the Court may permit the prosecution to tender such evidence which appears to be essential to decide the case in a just manner, even after the commencement of the trial.
Justice A. Badharudeen observed that: "It is true that the prosecution is duty bound to place all the evidence to be tendered along with the final report and copies thereof shall be furnished to the accused, as mandated under Section 208 Cr.P.C, in a Sessions trial".
However, in an appropriate case where the evidence sought to be tendered by the prosecution is absolutely necessary to decide the case fairly and the Court is of the opinion that the said evidence is essential for the just decision of the Court, the Court observed that:
...the said evidence also can be permitted to be tendered and there is no hard and fast rule that the prosecution is totally debarred from adducing evidence in excess of the materials, what have been filed along with the final report.
Case Title: Kerala Private Hospitals Association v. Advocate Sabu P. Joseph
Citation: 2022 LiveLaw (Ker) 626
The Kerala High Court on Thursday directed the Police to register the FIR and take cognizance of the offence of attack against the doctors and other healthcare professionals within an hour of receiving the information.
The court issued the direction after taking into consideration the increasing instances of attacks against doctors and healthcare Professionals.
The Division bench of Justice Devan Ramachandran and Justice Kauser Edappagath while Suo Motu impleading the State Police Chief in a case, in the order said:
"...as a first step, in addition to the earlier directions, we are of the firm view that every incident of attack on a Doctor or a Healthcare Professional, including any other staff of the Hospital - be that Security or other - will have to be taken cognizance of by the Station House Officer of the concerned Police Station not later than one hour from the time on which it is reported to him.
Case Title: Wilson C.C. v. State of Kerala
Citation: 2022 LiveLaw (Ker) 627
The Kerala High Court Monday considered the legal question that whether in a case of recovery of contraband on driver's body search, it would be fair to hold that the vehicle also had been used for the purpose of conveying the contraband.
Justice A. Badharudeen said when contraband is recovered on search of a person, who is driving the vehicle alone, after compliance of Section 50 of NDPS Act, it would not be safe to hold that vehicle also was used for transporting the drug so as to make the vehicle a subject matter of confiscation.
Case Title: Anti-Corruption Peoples Movement and Ors. v. State of Kerala and Ors and Connected Cases
Citation: 2022 LiveLaw(Ker) 628
The Kerala High Court on Thursday dismissed a batch of PILs challenging the validity of the appointment of personal staff to the office of the Chief Minister, Ministers, leader of the opposition, and the Chief Whip by the Special Rules of 1959.
Division Bench consisting of Chief Justice S. Manikumar and Justice Shaji P. Chaly observed:
to attain good governance and good practices in civil, cultural, economic, political, justice, social right, accountability, etc., the Government in power has to modulate its activities and discharge its functions, taking into account its political theories, election manifesto, and perceptions. For that, it must have a good and loyal team to its satisfaction producing results that meet the needs of the community at large, and to provide timely instructions and guidance from the political and social angle... In that view of the matter, we are of the undoubted and considered opinion that the petitioners have not made out a case of arbitrariness or unfairness, so as to secure the reliefs as are sought in the writ petitions.
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: Anvar Sadath Ibrahimkutty and Anr. v. The Chief Registrar General of Marriage and Ors.
Citation: 2022 LiveLaw (Ker) 637The 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: Mathew v. State of Kerala
Citation: 2022 LiveLaw (Ker) 639The 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) 640The 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: 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.
Case Title: All Kerala Private Bankers' Association v. The Commissioner of State Tax & Ors.
Citation: 2022 LiveLaw (Ker) 647
The Kerala High Court recently dismissed a writ petition filed by All Kerala Private Bankers' Association against RBI's insistence requiring small financiers to not use the word 'Bank' as part of their names.
The Association, comprised of small financiers and unincorporated bodies registered under the Kerala Money Lenders Act, had also sought renewal of its members' licenses.
Justice V.G. Arun held that a writ petition by the Association would not be maintainable since the Association is not conducting money lending business on its own, and thus, could not amount to an 'aggrieved person'.
Case Title: Kiran Kumar S v. State of Kerala & Anr.
Citation: 2022 LiveLaw (Ker) 649
The Kerala High Court on Tuesday, while dismissing the application filed by Kiran Kumar, the convict in the Vismaya dowry death case, seeking an interim order for suspension of his 10 years sentence, observed that even if there was no demand for dowry before or at the time of marriage, the subsequent demand made is sufficient to attract the definition of dowry under Section 2 of the Dowry Prohibition Act, 1961.Division Bench consisting of Justice Alexander Thomas and Justice Sophy Thomas while expressing concern on the rise in atrocities against women in their matrimonial homes and harassment for dowry, observed that while enacting Section 304B of the IPC, the Legislature strongly intended to curb the social evil of dowry demand. Section 2 of the Dowry Prohibition Act was amended with effect from 19.11.1986, and Section 304B dowry death was introduced in the Indian Penal Code with effect from the very same day, i.e., on 19.11.1986. Section 113 B presumption as to dowry death was also introduced in the Indian Evidence Act, 1872, on the same day i.e., 19.11.1986. So the Legislative intent in bringing out these amendments in all the three statues simultaneously will show the strong desire to eradicate the social evil of dowry death from the society using the iron hands of law.
Case Title: X v. State of Kerala & Anr.
Citation: 2022 LiveLaw(Ker) 650
The Kerala High Court on Friday observed that many innocent persons are victims of false implication under the SC/ST (POA) Act.
"It is shocking, rather a mind blowing fact that many innocent persons are victims of false implication under the SC/ST (POA) Act", the Court observed while considering an application seeking anticipatory bail. It cautioned that possibility of false implications of innocent people as accused, with a view to achieve ulterior motives of the complainant, must be ruled out.Noting that many innocent persons are falling victim to false implications under the SC/ST (POA) Act, Justice A. Badharudeen observed that the courts should have a duty to rule out the possibilities of false implication of innocent persons as accused, with a view to achieve ulterior motives of the complaints, with threat of arrest and detention of the accused in custody, because of the stringent provisions in the SC/ST (POA) Act in the matter of grant of anticipatory bail.
Therefore, it is the need of the hour for the courts to segregate the grain from the chaff by analysing the genesis of the case, the antecedents prior to registration of the crime, with reference to existence of animosity between the complainant and the accused, with particular attention, vis-a-vis previous disputes/cases/ complaints, etc. while considering the question of prima facie case, when considering plea for pre-arrest bail.
Case Title: K.G. Sunilkrishnan v. K.G. Premsankar
Citation: 2022 LiveLaw (Ker) 655
The Kerala High Court recently said that when an original petition is converted to a suit as contemplated under Rule 26 of the Indian Succession Rules (Kerala), 1968, the court fee has to be paid under Article 11 (k) of Schedule II of the Court Fees Act.
A trial court had earlier directed a plaintiff to pay court fees under Section 25(a) of the Act read with Article 1 Schedule I of the Court Fees Act, even after conversion of original petition to suit. However, Justice C.S. Dias said the same is incorrect and wrong.
The court said Chapter VI of the Kerala Court-Fees and Suits Valuation Act, 1959 deals with the manner in which court fee is to be computed and paid on applications filed for probate, letter of administration and certificate of administration.
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..."
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.
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.
