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Kerala High Court: Yearly Digest 2021
Hannah M Varghese
1 Jan 2022 12:55 PM IST
With 2021 coming to a close, LiveLaw brings to you an annual Round-up of significant updates of the Kerala High Court. Criminal Matters:International Arrest Warrant By Itself Not Sufficient To Extradite A Person To UAE Unless There Is A Written Request[Rakhul Krishnan v. Union of India]Justice N. Nagaresh held that International Arrest Warrant issued by itself will not suffice to arrest...
With 2021 coming to a close, LiveLaw brings to you an annual Round-up of significant updates of the Kerala High Court.
Criminal Matters:
[Rakhul Krishnan v. Union of India]
Justice N. Nagaresh held that International Arrest Warrant issued by itself will not suffice to arrest an accused and extradite him to UAE. The Court observed that Nationals of Contracting States shall not be extradited unless there is a request made by the State concerned. It was noted that in view of the specific provisions contained in the Extradition Treaty between the Government of the Republic of India and the United Arab Emirates, an International Arrest Warrant by itself will not suffice to arrest an accused and extradite him to UAE. For extradition, a request for extradition in writing dispatched through diplomatic channels was deemed mandatory.
[Sameer v. State of Kerala]
The Court has held that the investigation cannot be said to be incomplete on sending the requisition to the authority concerned to get the analyst report unless it is a case in which the entire prosecution case relies solely on the analyst report. The question on the completion of investigation arises to decide on the grant of default bail under Section 167(2) CrPC.
[Antony Rosario Fernando v. State Of Kerala]
The trial Judges do not have absolute discretion to prune or reject the list of witnesses submitted by the accused, the Bench of Justice VG Arun observed. It held that the trial court is empowered to interfere with only when the court is convinced that the application seeking issuance of summons is submitted for the purpose of vexation or delay or for defeating the ends of justice.
[State of Kerala v. Madhu & Ors.]
While ordering re-trial in the Walayar rape-death cases, Justice A Hariprasad and Justice M.R Anitha observed that the flaws in the initial investigation, unskilled prosecution and also the passive involvement of the trial judge led to the acquittal of all accused. The Court noted that the initial part of the investigation in these cases was utterly disgusting and that these flaws destabilized the case. It was also noted that the material witnesses who deviated from their previous statements were not effectively cross-examined.
Driving Slow But Recklessly Amounts To Rash & Negligent Driving
[Suo Motu v. Travancore Devaswom Board & Ors]
A Division Bench of Justice Anil K. Narendran and Justice P.G Ajithkumar ruled that driving a vehicle in a reckless and negligent manner even if it is done at a low speed, would still amount to 'rash and negligent driving' under Section 279 of the Indian Penal Code (IPC). The Court further observed that a person driving a vehicle on the road is liable to be held responsible for the act as well as for the result and that it may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently.
Gold Smuggling With A Mere Illegal Profit Motive Not A 'Terrorist Act' Under UAPA
[Muhammed Shafi P v. NIA]
While dismissing the appeals filed by the National Investigation Agency(NIA) against an order of the Special NIA Court at Kochi granting bail to ten persons who were accused in the diplomatic channel gold smuggling case, a division bench comprising Justices A Hariprasad and MR Anitha held that mere act of gold smuggling, which is covered under the Customs Act, will not amount to a "terrorist act" under the Unlawful Activities Prevention Act unless the same is done with the intention to threaten the economic security of the nation.
[Akhil C. v. State Of Kerala]
A Single Bench of Justice N. Anil Kumar quashed proceedings against a 21 year old man holding that Section 102 of CrPC is not an offence and that registration of crime against the petitioner under this provision is illegal. It observed that registration of crime under Section 102 is not in accordance with the scheme of the Code. Section 102(1) only enables a Police Officer to seize any property which may be 'alleged or suspected to have been stolen or which may be found under circumstances which create suspicion of the commission of any offence'.
UAPA: Place Of Occurrence Does Not Matter To Determine Sanctioning Authority Under Section 45
[T.I. Madhusoodanan & Ors v. Union of India & Anr]
A division bench of Chief Justice S Manikumar and Justice Shaji P Chaly held that the place of occurrence will not matter for determining the sanctioning authority under Section 45 of the Unlawful Activities(Prevention) Act while dismissing the appeals of senior CPI(M) leader P Jayarajan and other accused in the Kathiroor Manoj murder case. The Court also clarified that what matters for determining the sanctioning authority is the question of who controls the investigating agency.
Penetrative Sexual Act Between The Thighs Of Victim Held Together Is Rape U/S 375 IPC
[Santhosh v. State of Kerala]
A Division Bench of Justice K. Vinod Chandran and Justice Ziyad Rahman A. A held that when the body of the victim is manipulated to simulate a sensation akin to penetration of an orifice, the offence of rape is attracted. It was thus observed that when penetration is made in between the thighs so held together, it would certainly amount to "rape" as defined under Section 375 since it was an act of manipulation of the body of the victim to obtain sexual gratification if culminated in ejaculation.
NDPS-Order Extending Time For Investigation To Be Passed After Properly Alerting The Accused
[J. Midhun & Ors v. State of Kerala]
The Court observed that an order to extend time for investigation under the NDPS Act should only be passed after properly alerting the accused in the matter. Justice K Haripal also held that the Public Prosecutor being an independent statutory authority was expected to independently apply his mind to the request of the investigating agency before submitting a report to the Court.
An Accused Who Is On Bail Can Be Allowed To Go Abroad For His Employment
[Arun Baby v. State of Kerala & Anr.]
A Single Bench of Justice R. Narayana Pisharadi while hearing a petition seeking permission to go abroad allowed to the accused on bail to go to UAE to rejoin his duty. It was observed that the right of the accused to carry on his occupation cannot be curtailed while ensuring the culmination of legal process. The Court observed that although the general rule mandates that evidence be taken in the presence of the accused, evidence can be taken in his absence as long as his counsel is present in the court, provided the accused has been exempted from attendance.
FIR In Corruption Cases To Be Registered After Preliminary Enquiry
[Jude Joseph v. Director General Of Police & Anr.]
While dismissing a writ petition seeking the registration of certain corruption complaints, a Single Bench of Justice VGArun ruled that the FIR in corruption cases need be registered only after conducting preliminary enquiry. During the course of arguments, it was also established a writ jurisdiction should not be invoked for directing the police to register FIR, and that alternative statutory remedies are available to the aggrieved complainant under CrPC.
A Single Judge Bench of Justice R Narayana Pisharadi emphasised that a person could not be charged for murder as well as abetment of suicide simultaneously. It underscored that the offences of murder and suicide, punishable under Sections 302 and 306 respectively, are 'mutually exclusive' and cannot coexist.
Mere Erroneous Exercise Of Judicial Power Sans Extraneous Considerations Not Criminal Misconduct
[G. Suresh Kumar v. State of Kerala]
The Court held that a quasi-judicial order passed by a public servant or a statutory authority that was incorrect or not in favour of the government cannot be sufficient reason to initiate a corruption case or criminal proceedings against them. Justice R Narayana Pisharadi ruled so while quashing the corruption proceedings initiated against a former Assistant Commissioner of Sales Tax on the ground that his orders directing refund to a company as excess tax paid by it caused a loss to the government.
Consistent & Reliable Dying Declarations Sufficient To Prove Guilt Of Accused
[Thankappan v State of Kerala & Ors.]
While pondering over the admissibility of dying declarations, a Division Bench comprising Justice Vinod K Chandran and Justice Ziyad Rahman ruled that consistent dying declarations if found to be very reliable, provide credence to each other and prove the guilt of the accused. It was noted that the reason which lends credibility to a dying declaration is that 'a sense of impending death produces in a man's mind the same feeling as that of a conscientious and virtuous man under oath'.
Consuming Liquor In Private Place Without Causing Nuisance Not An Offence
[Salim Kumar B.S. v. State of Kerala & Anr.]
While quashing the proceedings pending against the petitioner before a Judicial Magistrate, Justice Sophy Thomas ruled that consuming alcohol in a private place does not constitute an offence under Section 118(a) of the Kerala Police Act as long as they do not cause any nuisance or annoyance in the public. The Court also clarified that the mere smell of alcohol cannot be construed to mean that the person was intoxicated or was under the influence of any liquor.
[Ibrahim @ Babu v. Union of India]
A Division Bench of Justice K. Vinod Chandran and Justice C. Jayachandran reversed an order of a Single Judge denying bail to a 67-year-old suspected Maoist undertrial charged under Section 43D(5) of the Unlawful Activities Prevention Act (UAPA). He was arrested in 2015 and was lodged in judicial custody since then. The Court while granting bail to the appellant, observed that prima facie there is nothing to show the accused's active involvement.
Vague Statement In Victim's Testimony With No Indication Of Penetration Not Proof Of Rape
[Ranjith v. State of Kerala]
Justice Kauser Edappagath observed that a statement from the victim that the accused hugged her with no indication of penetration would not attract the offence of rape under Section 375 IPC. observed: Mere statement by the victim in her evidence 'the accused hugged and impregnated me' without indication about penetration aspect is not sufficient to attract the offence of rape, it was held. The Court added that the offence of rape is constituted only if the ingredients under S.375 are made out.
[Shankara Bhat v. State of Kerala & Ors]
Justice Sunil Thomas ruled that for offences like falsification of accounts, breach of trust and misappropriation of funds or acts which are ex facie criminal, no prior approval as prescribed under section 17A of Prevention of Corruption Act is required. It was recorded that noted that the scope of section 17A is specifically confined to "any recommendation made or decision taken by public servant" which alone falls within the protection under section 17A.
Civil, Service & Other Connected Matters:
[State of Kerala & Ors v. Shylaja K Unnithan]
Justices A.K Jayasankaran Nambiar and Mohammed Nias C.P ruled that under Rules 97 and 98 of Part I of the Kerala Service Rules, a government employee who meets with an accident while travelling from their residence to workplace is entitled to special disability leave. The Court observed that the phrase 'caused in, or in consequence of performance of his official duties or in consequence of his official position', which appear in both the Rules cannot be construed in a narrow fashion.
Amendments In Written Statement Cannot Completely Displace Former Admissions
[Muhamed Ashraf v. Fasalu Rahman]
While dealing with a plea where a written statement was amended after the matter was listed for trial, the Kerala High Court observed that amendments made in a written statement cannot completely displace the former admissions made before the amendment. Justice V.G Arun while dismissing the original suit remarked that in the case at hand, the amendments would not only have the effect of the defendant making inconsistent and alternative pleadings, but also of completely displacing the admissions made in the written statement. Even the most liberal approach towards amendment of written statements will not justify the approval of such an application.
[KN Raveendranadhan & Anr. v. Kerala State Electricity Board & Ors.]
A single bench of Justice Murali Purushothaman refused to give relief to two Kerala State Electricity Board employees who were found to have delayed on arranging an electricity connection to a person who had applied for the same. It declared, "Electricity is a basic amenity in life. Water and electricity are integral part of right to life within the meaning of Article 21 of the Constitution of India."
Appeal Against Ad-Interim Order In A Pending Writ Petition Not Maintainable
[P.T Thomas & Anr v. Bijo Thomas & Ors.]
The Court reaffirmed that an appeal to a Division Bench cannot lie against an ad interim order passed by a Single Judge when the main writ petition is still pending before the Judge. A Division Bench of Justices P.B. Suresh Kumar and C.S. Sudha while dismissing such an appeal, remarked that such orders cannot be impugned in an appeal under Section 5(i) of the Act, for if appeals against such orders are entertained, the appellate court would be usurping the original jurisdiction of this Court under Article 226 of the Constitution.
Difference Between 'Bond' & 'Agreement'
[Safir v. Sajid]
The Court reiterated the difference between an agreement and a bond by establishing that for an instrument to partake the character of a bond, an obligation must have been created in the instrument itself. The question before the Court was whether the agreement entered into by the parties is a bond as defined under Section 2(a) of the Kerala Stamp Act, 1959 or an agreement. Justice Viju Abraham recalled excerpts from several landmark decisions to come to a decision.
Mere Enmity Even If Proved Cannot Be A Ground To Discard Witness's Evidence
[Kumaran vs. State of Kerala]
Mere enmity, even if it is proved cannot be a ground to discard the evidence, if such evidence is found to be reliable, the Court observed while upholding the conviction of an accused in a murder case on the basis of evidence given by his wife. In this case, one of the contentions raised by the accused was that one of the witnesses, who is his wife, nursed an enmity with him and hence it is not safe to base a conviction on such evidence.
Plea Challenging Vice Chancellor's Reappointment At Kannur University Dismissed
[Dr. Premachandran Keezhoth & Anr. v. The Chancellor, Kannur University & Ors.]
Justice Amit Rawal dismissed a plea challenging the reappointment of Dr. Gopinath Ravindran as the Vice-Chancellor of Kannur University after proper scrutiny of the applicable laws. It was further noted that there has not been any incident or lack of integrity, transparency as provided in the UGC regulations. The Court also held that there was no provision in the Kannur University Act mandating that the same procedure as appointment should be followed for reappointment. Kindly note that the petitioners herein have moved a Division Bench against this order.
[P.M. Salim v. Vasudevan Namboothiri]
The Court held that a categorical or wilful admission made in the pleadings cannot be permitted to be withdrawn by way of amendment if such withdrawal would amount to totally displacing the case of the plaintiff and would cause him irreparable prejudice. Justice Badharudheen while dismissing a petition looked into the aspect of when trial commences for the purpose of the proviso to Order 6 Rule 17 of CPC in the judgment.
[Manoj Kumar K. v. State of Kerala]
A Single Bench of Justice VG Arun held that in order to attract the offence of drunken driving under Section 185(a), the accused should have been subjected to a breath analyser or any other test including a laboratory test and his blood must be found to contain alcohol exceeding 30 mg per 100 ml. It was found that in this instant case, the proceedings under Section 185 cannot be sustained on the basis of an opinion of a doctor without detecting alcohol in blood through any breath analyser/laboratory tests.
Guidelines For Issuing Passports To Accused In Criminal Cases Framed
[Thadevoose Sebastian v. Regional Passport Office & Ors.]
In a significant ruling, the Court drew up a set of guidelines to be considered by criminal courts while granting permission for the issuance of passports to individuals involved in criminal proceedings. Justice Bechu Kurian Thomas while disposing of a petition filed by a man who was awaiting issuance of a new passport for the past 5 years, observed that the grant of permission by the Magistrate enabling an accused to travel abroad will be of great significance, especially since it will be a process of balancing the fundamental right of a citizen to travel abroad and the need to ensure the presence of the accused during trial.
Principal District Magistrates To File Report On Manner Of Appointment Of Public Prosecutors
In a suo motu writ petition initiated to investigate the matter of appointment of Public Prosecutors in the State, Justice K. Vinod Chandran and Justice C. Jayachandran directed all Principal District Judges to file a report regarding the same. This comes after the Division Bench noted the abject incompetence displayed by the prosecution while dealing with appeals from orders of conviction under Section 302 of IPC and the POCSO Act.
Dismissal Of Complaint At Pre-Cognizance Stage Should Be Treated As Rejection, Not Dismissal
[Rajan v. State of Kerala]
The Court reiterated that dismissal of complaint at the pre-cognizance stage can only be treated as a "rejection" of the complaint, and not a dismissal. Justice Narayana Pisharadi while dismissing a plea challenging a dismissal order passed by the Magistrate Court held that such dismissal is made without noticing the real distinction between a dismissal of the complaint under Section 203 CrPC at the post cognizance stage and a rejection of the complaint under the pre-cognizance stage. Such dismissal at the pre-cognizance stage can only be treated as rejection of the complaint.
Public Interest Litigation In Service Matters Not Maintainable
[R. Ajayakumar v. State of Kerala & Ors.]
While dismissing a writ petition, a Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly reiterated that Public Interest Litigations (PILs) in service matters are not maintainable. The Court observed so while adjudicating upon a plea seeking a direction to the Director of Health Services to take appropriate disciplinary action against C. Jayachandran, a Junior Health Inspector on the basis of certain reports submitted by the District Medical Officer (Health).
Unconscionable Agreements Between Parties With Unequal Bargaining Power Void
[Jyothi Basu V. & Ors. v. Kerala Water Authority & Anr.]
Justice P.B. Suresh Kumar reiterated that unconscionable, unfair and unreasonable clauses in a contract entered into by parties who do not enjoy equal bargaining power are void. While allowing a petition, the Court observed that a clause in an undertaking enabling the Water Authority, in this case, to recover the entire amounts disbursed to the contractors towards interest, merely on the ground that the funds disbursed are borrowed, is unconscionable.
Agreement Clauses That Prohibit Keeping A Pet In Residential Units Illegal, Unenforceable In Law
[People For Animals v. State of Kerala & Ors.]
A Division Bench of Justice A.K. Jayasankaran Nambiar and Justice Gopinath P. established that clauses in a bye-law or an agreement that prohibit a person from keeping a pet in their residential premises shall be void and unenforceable in law. Consequently, resident owners' associations and resident welfare associations were directed to desist from putting up notice boards and signposts prohibiting the keeping or entry of pets in their respective premises.
Division Bench Sets Aside Single Bench Judgment Which Quashed Rules Regulating Other-State Lotteries
[State of Kerala & Ors.v. Future Gaming And Hotel Services Pvt. Ltd.]
The Court set aside the judgment of a Single Judge Bench that quashed the rules brought by the Kerala government to regulate sale of other-state lotteries. The judgment, pronounced by a Division Bench of Justices SV Bhatti and Bechu Kurian Thomas, upheld the validity of the Rules. The single bench had ruled that no state can exercise its authority by making Rules in such a way to impact upon the authority of other States to organise, conduct and promotion of lottery.
[M.K Raghavan v. Seerakath Mariyam Beevi]
The Court held that the court has no power to extend the time for the payment of purchase money in a decree of specific performance based on a compromise agreement containing self operative clauses between the parties. Justice V.G. Arun also remarked that such an extension would lead to rewriting the terms of the compromise if the petitioner had neither paid the amounts within time nor sought extension before the expiry of the period stipulated in the decree.
[T. Madhu & Anr. v. K.K. Suresh & Ors.]
The Court held that execution proceedings initiated against an idol and its property are liable to be set aside when the deity or a public temple is not made a party to the suit. Justice P Somarajan while allowing an appeal stated that the binding nature of the suit or the decree passed in compliance with Order I Rule 8 C.P.C. must be understood as binding on only those persons in whose behalf the suit was instituted or defended in a representative capacity having the "same interest" and none else.
Police Officers Bound To Wear Uniform While On Duty
[Avinash v. State of Kerala]
Justice Mohammed Nias C.P accentuated the fact that police officers must comply with the relevant statutory provisions/guidelines making it mandatory to wear the uniform while on duty except when it is permissible under law to deviate from the said mandatory requirement. The Court while quashing proceedings against a man for questioning an officer in plain clothes, reiterated that the requirement of the police officer to wear the uniform while on duty is to be enforced without exception.
No Person Supposed To Share Driver's Seat In 3 Wheeler Goods Carriage
[Bajaj Allianz General Insurance Co. Ltd v. Bheema & Anr.]
Justice A. Badharudeen held that in a three-wheeler goods carriage, no other person whether a passenger or the owner of the vehicle is supposed to share the seat of the driver and any such action is a violation of the insurance policy conditions and that such persons would be considered as gratuitous passengers. Observing so, the Court set aside the liability fastened on the insurance company by the Motor Vehicles Tribunal to compensate such a passenger.
Bar Associations Should Verify With Bar Council Before Admitting New Members
[Sessy Xavier v. State of Kerala & Ors.]
While denying pre-arrest bail to Sessy Xavier who practised as an Advocate for over two years without enrolment, Justice Shircy V observed that it is advisable that Bar Associations verify with the Bar Council before admitting new members to prevent such incidents in future. The Bench also noted that the lawyers' profession is considered to be one of the noblest professions and that misrepresenting as an Advocate before a client and obtaining a brief itself would amount to cheating the public.
Order XLI Rule 5 CPC Only Permits Stay Of Execution Of Decree, Not Stay Of Operation Of Judgment
[Raveendran v. Lalitha & Ors.]
Justice V.G Arun held that Order XLI Rule 5 of the Code of Civil Procedure only provides for stay of the proceedings under a decree or stay of execution of the decree and does not empower the appellate court to stay the operation of the judgment. The Court allowed the original petition (Civil) with a direction to the appellate court to consider the application for stay afresh and to pass orders after affording an opportunity of hearing to the parties.
Single Judge Bench Can Take Cognizance And Decide Civil Contempt Petitions
[MP Varghese v. VP Devassia]
A Division Bench comprising the Chief Justice S. Manikumar and Justice Shaji P. Chaly held that a Single Judge Bench can take cognizance and decide civil contempt petition. It struck down Rule 6 of the Contempt of Courts (High Court of Kerala) Rules as ultra vires to the Constitution of India and Section 19(1) of the Contempt of Courts Act. Rule 6 provided that a Division Bench alone can take cognizance of the contempt proceedings and that if and when, a prima facie case is found out, the contempt petition has to be referred to a Bench of two Judges.
Enforcement Directorate Entitled To Maintain Writ Petition Against State Govt
[Enforcement Directorate v. State of Kerala & Ors.]
The Court held that the Enforcement Directorate can prefer a writ petition against the State Government despite being a statutory body since its Officers were empowered to exercise powers under the Prevention of Money Laundering Act. Justice P.B. Suresh Kumar made this observation in a plea filed by the ED under Article 226 of the Constitution of India challenging the State's notification which constituted a judicial commission to inquire into the allegations of falsification of statements to implicate the Chief Minister in the gold smuggling case.
[United India Insurance Co. Ltd v. Shalumol]
The Court ruled that a married daughter and the parents of the deceased are entitled to claim compensation under Section 166 of the Motor Vehicles Act, 1988, as dependents of the deceased. Justice C.S Dias while dismissing an appeal filed by the insurance company opined that it would be preposterous to accept the contention if the counsel for the appellant that a 25-year-old daughter would be no longer dependent on her 49-year-old mother because she was given in marriage.
State-Specific Matters:
Government Order Fixing Price Of Packaged Drinking Water At Rs.13 Stayed
[Kerala Packaged Drinking Water Manufacturers Association v. State of Kerala & Ors]
Justice P.V. Kunhikrishnan stayed the government order fixing the price of bottled water in the State at Rs 13 citing the State's lack of jurisdiction to issue such an order. The Court further observed that the State Government has no power to regulate the price of drinking water under the Food Security Act and sought the Centre's view on the matter while recording that the intention of the State behind such order as genuine and perfectly laudable.
Dredger Scam: FIR Against Former DGP Jacob Thomas Quashed
[Dr Jacob Thomas IPS v. State of Kerala & Ors.]
The Court quashed the FIR registered against former Director General of Police Dr. Jacob Thomas in the dredger scam case where he was accused of engaging in tender rigging. Justice R. Narayana Pisharadi noted that although its power under Section 482 of the CrPC shall be exercised sparingly and with circumspection in rare cases to quash the F.I.R, it should not feel inhibited when the circumstances warrant the exercise of such power to do substantial justice to the parties.
[Suo Moto v. State of Kerala & Ors.]
Observing that the "scale of drug usage in Kerala is unacceptably high", a division bench comprising Chief Justice S Manikumar and Justice AM Shaffique issued a slew of directions to control drug abuse among youngsters and students in educational institutions. Notable among the directions is the one given to the State Government to establish campus police units in all educational institutions to prevent drug abuses in campuses.
[Bar Association v. State of Kerala & Ors]
Justice P.V Kunhikrishnan condemned the government's red-tapism which lead to a delay of 24 years in constructing a District Court Complex in Idukki.The Court directed the State to expeditiously transfer land for the construction of the court complex. The Single Judge was adjudicating upon a plea filed by the Bar Association of Idukki raising its members' grievances regarding the fact that the three courts and attached offices in the district have been functioning with limited facilities.
Only Scrutiny Committee Empowered To Withdraw Community Certificates: Tahsildar's Order Quashed
[Vinod K.S v. State Election Commission & Ors.]
The Court ruled that Tahsildars are not empowered to withdraw or suspend a community certificate issued under the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificate Act, 1996 merely because it is the authority empowered to issue such certificate. Justice T.R Ravi established that only the Scrutiny Committee constituted under the Act was empowered to conduct an enquiry and thereby cancel community certificates if it was found to have been obtained by fraud.
State Prompted To Publish Guidelines For Medical Professionals In Custodial Torture Cases
[Dr. Prathibha K v. State of Kerala & Ors.]
The Court directed the State to expeditiously notify an order clarifying the procedure to be followed by medical professionals while examining accused and under-trial persons for evidence of any manner of custodial torture or injury. Justice PV Kunhikrishnan directed so upon being informed that the State government had already initiated proceedings to issue a government order to implement to recommendations of the Justice K Narayana Kurup Commission, which had investigated a custodial death that occurred in the State.
Guidelines Issued To Family Courts For Early Disposal Of Cases
[Shiju Joy A. v. Nisha]
In a significant judgment, the Court has issued guidelines to streamline and prescribe a uniform procedure for disposal of cases before Family Courts in the State. The order has been passed by a Division Bench comprising of Justices A Muhamed Mustaque and CS Dias in a batch of petitions highlighting the hurdles faced by the parties in resolving their matrimonial disputes.
Gold Smuggling: Continued Preventive Detention Of Accused Rabins Hameed Under COFEPOSA Upheld
[Fousia Rabins v. Union of India]
A Division Bench comprising Justice A.K. Jayasankaran Nambiar and Justice Mohammed Nias C.P. upheld the continued preventive detention of prime accused in the gold smuggling case, Rabins K Hameed under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA). As such, the Court refused to allow the plea filed by the wife of the accused that sought quashing of the detention order.
Forced Deduction From Pension To CM's Relief Fund Not Permissible
[Rajan E.G & Anr v. Kerala State Electricity Board]
The Court held that KSEB shall not deduct any amount from the pension granted to its retired employees towards the Chief Minister's Relief Fund under the 'Vaccine Challenge' unless they have expressed written consent to such deduction. Justice Devan Ramachandran during the hearing observed that any contribution to the Relief Fund cannot be a matter of compulsion or forced compliance and that the same could only be effected with full volition of the contributor, provided there was no valid law in force that sanctioned such deduction.
[T.K Sundareshan v. District Police Chief]
The Court made it clear that any attempt made in the State to demand gawking charges (popularly known as nokkukooli) will be penalised under the most stringent provisions of law under the offence of extortion. Justice Devan Ramachandran was, however, pleased to be informed that the State government had taken a keen interest in the matter and had initiated positive steps towards the eradication of the practice.
Rummy A Game Of Skill: Ban On Online Rummy Lifted
[Head Digital Works Pvt. Ltd v. State of Kerala & Ors]
Justice T.R Ravi while lifting the ban on Online Rummy in the State clarified that online rummy played either with stakes or without stakes remains to be a 'game of skill'. The Court further added that Rummy will not come under "gambling" since "gambling" can only be on a game of chance and that the notification prohibiting Online Rummy played for stakes was not a reasonable restriction under Article 19(6) of the Constitution of India. It was thereby declared arbitrary, illegal and violative of the fundamental rights guaranteed to the petitioners under Articles 14 and 19(1)(g) of the Constitution of India and hence not enforceable.
State To Furnish Reasons For Withdrawal Of Criminal Cases Registered Against MPs/MLAs
[Suo Motu v. State of Kerala]
A Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chalyhas directed the State to furnish the details of all criminal cases pending against MPs and MLAs which were withdrawn after September 16, 2020, accompanied with the reasons for the same. They were further directed to furnish a consolidated statement, explaining the reasons for withdrawal of the cases registered against MPs/MLAs (sitting/former).
Strict Instructions Issued To Expeditiously Remove Illegal Flag Posts In State
[Mannam Sugar Mills Cooperative Ltd v. Deputy Superintendant of Police]
Justice Devan Ramachandran issued strict instructions to the State to ensure that no new unauthorised flag posts are installed in the State and to remove the already existing ones within a period of 10 days. The Court, surprised by the number of flag posts in the State, remarked that illegal flag masts already erected on the streets should be taken out under the applicable laws, particularly under the Land Conservancy Act. Action should be taken against the perpetrators, and they should be penalised unless these masts are removed.
Street Vendors Without ID Cards Not To Operate In Kochi From December 1
[Rajesh R & Ors. v. Health Inspector, Municipal Corporation of Kochi & Ors.]
Justice A.K Jayasankaran Nambiar directed the Kochi Corporation to take immediate steps to implement the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 for the rehabilitation of street vendors within its limits. Considering that the Corporation has issued identity cards to over 700 eligible street vendors as of now, and was in the process of tracing the rest, the Court ordered that from December 1st 2021, only such street vendors issued vending certificates from the Town Vending Committee shall be permitted to carry on street vending activities within the limits of Cochin Corporation.
[Prof. M.K.Sanoo v. State of Kerala & Ors]
Justice N Nagaresh directed the Inspector General of Registration to take a decision on the complaint filed by noted writer Professor M K Sanoo seeking disqualification of Vellappally Natesan and three others as the directors of the SNDP Yogam. Upon finding 'strong legal footing' on Sanoo's allegations since there were no materials to indicate that the Directors of the Yogam took any effective steps to file annual returns/financial statements from 2013-'14 to 2015-'16, it was directed that the decision should be taken within three months.
State Circular Restricting Fee Exemption On Converted Paddy Land
[M.K Baby v. District Collector & Ors.]
A Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly quashed a circular issued by the State government, limiting fee exemption on converted paddy land not included in the data bank only to applications filed after 25th February this year. The Court also directed the concerned authority to consider the applications submitted by the petitioners irrespective of the cut-off date fixed in the Circular for payment of fee within 2 months.
Knanaya Church Case: Interim Relief To Members Marrying Outside Diocese Granted
[Knanaya Catholic Naveekarana Samithi v. Metropolitan Archbishop, Archeparchy of Kottayam]
The Court ruled that any member of the Kottayam Archeparchy marrying outside the diocese shall be issued a marriage certificate without insisting on a letter of relinquishment of their membership until the first appellate court decides on the matter. Justice VG Arun issued the order on a petition filed by a reformist group within the church, Knanaya Catholic Naveekarana Samithy, challenging the stay order of the Additional District Court, Kottayam.
[Balu v. State of Kerala & Ors.]
The Court directed its Registry to provide computers in all Court Halls to enable recording of the dictation, particularly to take down the evidence of witnesses in a proceeding. A division bench comprising Justice K. Vinod Chandran and Justice Ziyad Rahman A.A. while hearing a criminal appeal noted that readable copies had transcribed the original deposition fully. The Court stated that it cannot find fault with the persons who copied it, since the originals are undecipherable.
Arbitration Matters:
A Party To Dispute Cannot Nominate Arbitrator Even If The Arbitration Agreement Allows It
[Tulsi Developers India Pvt. Ltd. v. Dr. Appu Benny Thomas]
The Court has held that neither a party to an Arbitration Agreement nor a person nominated by it can be nominated an arbitrator, even if the agreement expressly allows the same. With this notion, the Court went on to disregard the stipulations of the arbitration clause to the extent to which it allowed the lessor (respondent) to nominate the Arbitrator when the parties failed to arrive at a consensus nominee.
Property Matters:
[Pradeep Kumar P v State of Kerala & Ors.]
Justice Devan Ramachandran observed that the provisions of Section 58(f) of the Transfer of Property Act pertaining to mortgage by deposit of title deeds, do not prohibit the State from bringing in the entire State territory within its ambit. The Court ruled that it was a policy and financial decision and the Government may take the considered opinion that the entire State requires to be notified as such to enable Banks and other Financial Institutions to enjoy the fiscal flexibility offered by Section 58(f).
Section 53A Of Transfer Of Property Act Not Applicable To A Void Agreement For Sale
[Ligy Paul v. Mariyakutty & Ors.]
The Court has ruled that Section 53A of the Transfer of Property Act, 1882 is not applicable in respect of an agreement for sale which is void in nature. Justice Anil Kumar while dismissing a second appeal, remarked that Section 53A of the Transfer of Property Act is applicable only where the contract for transfer is valid in all respects. It must be an agreement enforceable by law under the Indian Contract Act, 1872.
[Abad Builders v. State Of Kerala]
A Single Bench of Justice PB Suresh Kumar declared that Rule 12(9) of the Kerala Conservation of Paddy Land and Wetland Rules (Rules) is prima facie ultra vires its parent Act, the Kerala Conservation of Paddy Land and Wetland Act, 2008 (Act) in so far as it charges a fee depending on the area of buildings exceeding 3000 square feet proposed in 'un-notified' lands.
[Selil Moideen v. Kerala Coastal Zone Management Authority]
A single bench of Justice PB Suresh Kumar observed that the inclusion of a land in Coastal Regulation Zone-III in the Coastal Zone Management Plan(CZMP) prepared as per the 2011 CRZ Notification is not a bar against objecting to the inclusion of the said land in a CRZ zone as per the CZMP to be made as per the 2019 CRZ Notification.
Corporate And Financial Matters:
Company Entitled To Acquire Properties Dehors Cancellation Of Its Registration As NBFC
[M/s Sree Sankara Funds (P) Ltd. v. Tahsildar (Land) & Ors]
The Court ruled that even when an entity is stripped of its NBFC license, it continues to operate as a company and a legal person as long as its Certificate of Registration is not cancelled under the Companies Act. Justice Bechu Kurian Thomas thus ruled that such a company, despite cancellation of its registration as an NBFC, is entitled to buy, own and hold properties and continue its legal existence.
S.138 NI Act- Improbable For A Moneylender To Grant Second Loan While First Loan Still Oustanding
[V.P Zacharia v. State of Kerala & Anr.]
The Court observed that it was highly improbable that a cheque leaf from a cheque book that was exhausted in 1996 would be used by a drawer to discharge his liability that arose in the year 2000. Justice Gopinath P further noted that it was highly unlikely for a money lender to initiate a second loan transaction when the first loan transaction was yet to be paid, which further weakened the case of the appellant.
Banks Should Not Deny Educational Loan Citing Liabilities Of Student's Parents
[Devika Soniraj v. The Zonal Manager, Bank of India]
The Court directed the Bank of India to disburse the loan applied for by the petitioner on the ground that she was a meritorious student and that repayment possibilities of educational loans were not to be assessed on the parents' financial position. If the ability of the parents of the applicant to repay the loan cannot be a consideration for granting an educational loan, according to me, the liability, if any, of the parents shall not also be an impediment for the bank in considering an application for an educational loan, the Court observed in the judgment.
No Detention Under Section 129 Of CGST Act On Mere Suspicion Of Mis-Classification Of Goods
[M/s Podaran Foods India Pvt Ltd v. State of Kerala]
A single bench of Justice A Jayasankaran Nambiar held that mere suspicion of misclassification of goods cannot be the basis for detention of goods under Section 129 of the Central Goods and Services Tax Act 2017. Reliance was placed on the decision of the Gujarat High Court in M/s Synergy Fertichem Private Limited v. State of Gujarat and earlier decisions of the Kerala High Court in NVK Mohammed Sulthan Rawther& Sons v. UOI & Ors and Rams v. STO.
[K. Basheer v. CK Usman Koya & Anr.]
Answering a reference, a Division Bench comprising Justices K Vinod Chandran and MR Anitha held that a demand notice under Section 138 of the Negotiable Instruments Act need not disclose the nature of transaction leading to the issuance of cheque. The Bench was answering the reference whether a demand notice without a full disclosure of the details of the transaction would be rendered invalid.
Technical Glitches Not To Hinder Grant Of Tax Refunds
[Dantara Jewellers v. State of Kerala & Ors.]
While granting tax refund to a petitioner, the Court ruled that technical glitches should not stand in the way of ultimate grant of relief by way of refund to taxpayers. Justice Bechu Kurian Thomas, while observing that such hindrance would affect the confidence of taxpayers to deposit the amount required under Section 129 of the State Goods and Services Tax (SGST) Act, directed the respondent authorities to grant tax refund.
[State Tax Officer & Ors. v. Y. Balakrishnan]
In a vital decision, Justice Bechu Kurian determined the scope and ambit of the powers of the release of goods while the confiscation proceedings are going on under the Central Goods and Services Tax Act, 2017. It was held that section 130 contemplate release of goods on payment of fine in lieu of confiscation at two stages (i) during the process of adjudication u/s 130(2) and (ii) post-adjudication u/s 130(3). Itw as further laid down that at the time of release of goods u/s 130(2), the owner of the goods is required to pay the fine in lieu of confiscation alone.
[R. Raveendran c. Shajajan & Anr.]
The Court ruled that the absence of salutation while drawing the cheque by the accused cannot be a ground for the accused to be acquitted in proceedings under Section 138 of the Negotiable Instruments Act. Justice Gopinath P while allowing an appeal, observed that the alphabets 'M/s' is normally a salutation intended to refer to a group of unincorporated persons, such as a partnership firm. The absence of such salutation while drawing the cheque by the accused cannot be a ground for the accused to be acquitted. Such a view is as good as saying that if the payee is not referred to in the cheque as ''Mr....'', the accused has to be acquitted.
Section 164(2) Companies Act Not Retrospective; Default Before 2014-15 FY Can't Be Considered
[Zacharia Maramkandathil Mohan & Ors v. Union Of India]
A Single Judge Bench of Justice N. Nagaresh dismissed a batch of petitions challenging the disqualification of around 250 Directors of Companies under Sections 164 and 167 of the Companies Act. This came after approximately 250 writ petitions were filed before the Court raising common questions of law. All the petitioners were disqualified u/s 164(2) for failure of their respective companies to file Financial Statements/Annual Returns.
[C.K. Saseendran & Ors. v. Inspector General of Registration & Ors.]
The Court has ruled that there is no stipulation that a deed of cancellation of a trust deed has to be done at the same place where it was registered. Justice Murali Purushothaman held so while dealing with a plea seeking to quash a cancellation deed on the sole ground that it was not registered at the same place where the trust deed was registered.
Compassionate Allowance Does Have All Attributes Of Pension
[V. Kesavan Nair v. Union of India]
A Division Bench of Justices Alexander Thomas and K. Babu while dismissing an appeal filed by a former CISF employee, held that compassionate allowance does not have all the characteristics of pension covered by Rules 35 to 40 of the Pension Rules, and observed that the authorities have absolute discretion in deciding the date from which payment of compassionate allowance has to be paid.
Interest Under Customs Act Statutory, Cannot Be Waived Unless Authorised By Act
[Pomsy Food Products (P) Ltd. v. Union of India]
The Court ruled that a court cannot waive the payment of interest while exercising its jurisdiction under Article 226 of the Constitution, since it is a statutory imposition. Justice Gopinath P dismissed a plea seeking a waiver of interest imposed by the respondent authorities on the petitioner for its failure to meet the export requirements under an advance licence, observing that interest under the Customs Act is statutory and that there can be no waiver of such interest unless such waiver is provided for in the provisions of the Customs Act itself.
Environmental Matters:
Disaster Management Act Statutorily Recognizes Apat Dharma, Overrides Other Laws During Disasters
[MH Vijayan v. State of Kerala]
Justice N Nagaresh observed that without the Act having such overriding power, all other rights liberties and freedoms will lose their meaning. "A democratic State should have the power to make such laws which would help to overcome such disasters with least hardship and loss of life and property of its citizens", the court noted in its order. The Court was hearing a plea challenging the mechanised loading and transportation of mineral sand from the river mouth at Thottappally Pozhi (sandbank between the sea and backwaters), situated amidst the paddy fields at Alappuzha.
[Principal, Chief Conservator of Forests & Ors . E. Moideen Koya and connected matters]
The Court recently upheld the Single Judge's decision directing the Principal Chief Conservator of Forests to consider the applications preferred by the petitioners regarding a dispute whether their land is an ecologically fragile land since it was filed within 6 months from the date of individual notices served on them. Chief Justice S. Manikumar and Justice Shaji P Chaly while dismissing the appeal ruled that the legislative intent is to be given the utmost importance, which would be more logical, relevant and meaningful, to protect the interests of the citizens.
Ban On Compostable Plastic Carry Bags Quashed
[Dr. Vasundhara Menon & Ors. v. Union of India & Ors.]
A Single Bench of Justice AK Jayasankaran Nambiar quashed an order of the State Government, prohibiting the manufacture, stocking and sale of compostable plastic bags in the state. it noted that the impugned order was passed on a mere conjecture that non-compostable plastics are being passed off as compostable ones, without any cogent material or empirical data to back the same. It thus allowed a batch of petitions filed by various persons engaged in the business of compostable plastic, and held that the Government order is not legally sustainable.
Bail Orders:
Palarivattom Flyover Scam: Former PWD Minister VK Ebrahim Kunju Granted Bail On Medical Grounds
[V.K.Ebrahim Kunju v. State of Kerala]
Justice PV Kunhikrishnan granted bail on medical grounds to former PWD Minister VK Ebrahim Kunju, an accused in Palarivattom Flyover Scam noting that his health condition had dangerously deteriorated. His first bail application was dismissed observing that there are serious allegations against the former minister and thus he is not entitled to bail on merit at this stage. However, when the State Attorney conceded to his medical condition, the Court granted bail with a condition that he shall not leave the jurisdictional limit of Ernakulam district.
ISRO Espionage: Sessions Court Order Imposing Time Limit On Siby Mathews' Pre-Arrest Bail Quashed
[Dr. Siby Mathews v. Central Bureau of Investigation]
Justice K. Haripal set aside the 60 days time limit imposed on the pre-arrest bail granted by the Sessions Court to former DGP Siby Mathews, the fourth accused in the ISRO espionage case. The Judge allowed the application filed by the former officer, thereby quashing the order of the Sessions Court. The Court had previously extended the time limit which was set to expire on 24th October several times since CBI had sought time to file its submissions in the matter.
Bail Granted To Journalism Student In UAPA Case Cancelled
[Union of India v. Thwaha Fasal]
Individual rights should subserve the national interest, observed a Division Bench comprising Justice A. Hariprasad and Justices K. Haripal while setting aside the order passed by Special NIA Court Kochi granting bail to Thwaha Fasal in a UAPA case for alleged Maoist links. The court observed that the documents seized from the accused carry the seeds of a secessionist ideology.
Actor Sexual Assault Case: Bail Granted To Accused Manikandan
[Manikandan v. State of Kerala]
Justice Sunil Thomas granted bail to Manikandan, the third accused in the 2017 sensational case relating to the abduction and sexual assault of a Malayalam actor. The Court while allowing the application observed that the petitioner had spent over 4 years in jail in the matter and that he had a comparatively minimal role in the case. Prominent Malayalam actor Dileep is accused as a conspirator in the case. He was released on bail in 2017, so were most of the other accused in the case. However, the first accused has not been released yet.
Gold Smuggling: Prime Accused Swapna Suresh And Others Granted Bail
[Mohammed Shafi P. v. National Investigation Agency]
The Court granted bail to the accused, including prime accused Swapna Suresh and Sarith P.S. in the infamous gold smuggling case which had snowballed into a political controversy in the State with a condition to furnish a bail bond of Rs. 25 lakhs and 2 solvent sureties. A Division Bench comprising Justices K. Vinod Chandran and C. Jayachandran pronounced the judgment today after having extensively heard the submissions of all parties involved before reserving its judgment on the last hearing day.
Constitutional Matters:
Article 21 Applies Till One's Body Is Cremated
[Kerala Medico-Legal Society & Anr. v. Government of Kerala & Ors.]
While directing the State government to supply adequate facilities and staff in all the Government Medical Colleges in the State to facilitate the conduct of night autopsies, Justice P.V. Kunhikrishnan observed that Article 21 of the Constitution is not only available to a living man but also to his dead body. It was also held that a decent burial of a dead body immediately after death if intended by the kith and kin of the deceased is far more important than legal formalities to be conducted if it is an unnatural death.
Right For A Safe Road To Every Citizen Is A Facet Of Articles 19(1)(d) And 21 of the Constitution
[CA Xavier v. Chief Secretary and Ors.]
The Court closed a batch of public interest litigation petitions that sought for directions to the State and Central Governments to take steps to stem the rise in road accidents in the State. Justice Shaji P Chaly, authoring the judgment on behalf of the Bench comprising of himself and Chief Justice S Manikumar, declared that the right to a safe road is a facet of the fundamental rights of free movement and the right to life under the Constitution. [Articles 19(1)(d) and 21].
[X v. State of Kerala & Ors]
Justice Sathish Ninan held that requiring single women, who conceived through Assisted Reproductive Technologies, to furnish the father's name for registering the births and deaths of their children necessarily affects the right of dignity of the mother as well as the child. As such, the Court directed the State to immediately take necessary steps to provide separate forms for registration of births and deaths and for issuance of certificates for children born out of such conceptions.
Article 25 Does Not Exempt Salaries Of Nuns & Priests Working As Teachers From TDS
[Provincial Superior, Nirmal Rani Provincial House v. Union of India]
Upholding the rider of a Single Bench, a Division Bench of Justice S.V Bhatti and Justice Bechu Kurian Thomas ruled that salaries paid to nuns and priests of religious congregations, working as teachers in educations institutions are liable for tax deduction at source while dismissing a batch of nearly 50 writ appeals. The Court further noted that Article 25 does not provide any immunity from taxation on the basis of religion.
Family Law & Maintenance Matters:
Marriage Registration Allowed Through Video Conferencing
[Sreelakshmi J.S. v. The Kadukutty Grama Panchayath & Ors]
Justice P B Suresh Kumar allowed the completion of marriage registration formalities through the medium of video conferencing. The Court directed an authorised representative of the petitioner's husband to file an affidavit before the Local Registrar for Marriages and sign on the marriage register in the presence of the husband through video conferencing. However, the husband is to appear physically before the Registrar within a year and sign in the marriage register, failing which the Registrar is at liberty to revoke the marriage registration.
Making False Accusation Of Impotency By A Spouse In Matrimonial Proceedings Amounts To Cruelty
[X v. X]
A Bench of Justices A. Muhamed Mustaque and Kauser Edappagath held that casting aspersions of impotency or erectile dysfunction by one spouse against other in matrimonial proceedings will constitute cruelty. The respondent had accused the appellant of suffering from erectile dysfunction and sexual incapacity in her written statement, which was contradicted by her own statement and lack of evidence.
[Manoj v. State of Kerala & Ors.]
The Court has held that if a party enters into a second marriage when the appeal of the decree of divorce of the first marriage is still pending, he/she will not be guilty of the offence of bigamy under Section 494 of the Indian Penal Code if the appeal is subsequently dismissed. While allowing a petition filed under Section 482 of the Code of Criminal Procedure to quash the complaint alleging bigamy, the Court ruled that Section 15 of the Hindu Marriage Act does not override Section 28 of the Hindu Marriage Act, which confers a right of appeal.
A division bench comprising Justices AM Muhammed Mustaque and CS Dias that unilateral withdrawal of consent by a spouse from a joint petition filed for divorce, after the other party has performed his/her obligations under the agreement, is unsustainable in law. The Court termed it a "sharp practice, which cannot be permitted or tolerated for a moment as it would shatter the faith of the litigants in the justice delivery system and make a mockery of alternative dispute resolution mechanism".
Calculated Acts Of One Parent To Alienate Child From Other Parent Amount To "Mental Cruelty"
[X v. X]
A Division Bench of Justices A Muhamed Mustaque and Dr Kauser Edappagath ruled that any act by a parent that resulted in a denial of a child's love and affection to the other parent by alienating the child amounts to mental cruelty. Deciding a matrimonial appeal filed by a husband accusing his wife of cruelty, it said, "Nothing can be more painful than experiencing one's children—one's own flesh and blood—rejecting him/her. The above acts of the respondent willfully alienating the child from the appellant, no doubt, constitute mental cruelty."
Divorced Wife Not Entitled To Right Of Residence Under Section 17 Domestic Violence Act
[Ramachandra Warrior v. Jayasree]
A divorced wife would not be entitled to the right of residence conferred under Section 17 of the Protection of Women from Domestic Violence Act, held a Division Bench comprising Justices K. Vinod Chandran and MR Anitha. It said that such right is available only to a woman in a domestic relationship. However, the court observed that a divorced wife occupying a shared household can be evicted only in accordance with law.
[Mahin Kutty v. Anshida]
A Division Bench of Justices A Muhamed Mustaque and Dr Kauser Edappagath held that recovery proceedings instituted under Section 20 of the Domestic Violence Act would not operate as a bar on a Family Court adjudication of the matter. It ruled that proceedings under the Domestic Violence Act were ancillary to the main inquiry of whether the woman faced domestic violence in the home.
Marital Rape A Valid Ground For Divorce
[X v. Y]
A Division Bench of Justice A. Muhamed Mustaque and Justice Kauser Edappagath in a significant judgment upheld that marital rape, although not penalised in India, is a good ground to claim divorce although the law does not recognise marital rape under penal provisions. The Court while empathising with the situation of the woman observed that a husband's licentious disposition disregarding the autonomy of the wife is marital rape, albeit such conduct cannot be penalised, it falls in the frame of physical and mental cruelty.
Muslim Women Entitled To Invoke Extra-Judicial Divorce
[X v. Y and other connected matters]
Overruling a 49-year-old judgment that barred Muslim women from resorting to extrajudicial modes of dissolving marriage, a Bench of Justice A. Muhamed Mustaque and Justice C.S Dias upheld the validity of these modes, finding that the Dissolution of Muslim Marriages Act did not contemplate the undoing of the extra-judicial divorce modes available to women under personal law. The Court also specially instructed Family Courts not to adjudicate upon extra-judicial divorce unless it was called upon to do so in an appropriate manner since the Courts were overburdened with a large number of cases.
[A. Sajani v. Dr. B. Kalam Pasha]
The Court dismissed an appeal filed by the former wife of a serving judicial officer seeking to invalidate the talaqnama served on her on the ground that it contained the word 'irrevocably'. A Division Bench of Justices A.K Jayasankaran Nambiar and Mohamed Nias C.P ruled that the pre-requisites for pronouncing a valid talaq were fulfilled in this case.
Wedding Gifts From Parents For Daughter's Welfare Not Dowry
[Vishnu R. v. State of Kerala & Ors.]
Justice M.R. Anitha ruled that presents given to the bride by her parents at the time of her marriage for her welfare will not count as dowry under the ambit of the Dowry Prohibition Act, 1961 if no demand was made on that behalf. It was also elucidated that such gifts should also have been entered in a list maintained in accordance with rules made under this Act to not come within the purview of Section 3(1) of the Act which prohibits giving or taking of dowry.
Levelling Accusation Of Unchastity And Perfidiousness Against Wife Amounts To Mental Cruelty
[Sabitha Unnikrishnan v. Vineet Das]
A Division Bench comprising Justice A. Muhamed Mustaqu and Justice Kauser Edappagath while allowing a matrimonial appeal established that that unsubstantiated accusation and character assassination by one spouse against the other would constitute mental cruelty. It observed as follows: "The respondent has miserably failed to substantiate the imputation made by him that the appellant has relationship with another person and she is an unchaste woman. Levelling disgusting accusation of unchastity and attributing aspersions of perfidiousness to the wife would undoubtedly amount to worst form of mental cruelty."
Son-In-Law Has No Legal Right In Father-In-Law's Property
[Davis Raphel v. Hendry Thomas]
While dismissing a second appeal with costs, Justice N. Anil Kumar ruled that a son in law cannot have any legal right in his father in law's property and building, even if he has spent an amount for the construction of the building. The Court went to the extent of observing that when the father-in-law is in possession of the property, the son-in-law cannot plead that he had been adopted as a member of the family. It was reiterated that the residence of son-in-law, if any, in the building is only permissive in nature.
Advocates Entitled To Appear In Maintenance Tribunals; Bar On Legal Representation Unconstitutional
[Adv. K.G. Suresh v. Union of India & Ors]
In a groundbreaking judgment, the Court has declared as unconstitutional the bar on lawyers representing parties in matters before the Maintenance Tribunals constituted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (Maintenance Act). A Bench of Chief Justice S Manikumar and Justice Shaji P Chaly pronounced judgment in the case last week, allowing a writ petition filed in 2011.
Unequal Treatment Of Wives A Valid Ground For Divorce For Muslim Women
[Ramla v. Abdul Rahuf]
A Division Bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas ruled that the refusal of a Muslim man to perform his marital obligations with his first wife after a second marriage is a good ground for divorce. It was further held that if there exists a marriage with another lady during the subsistence of the previous marriage, the burden is on the husband to prove that he had treated both wives equitably in accordance with the injunctions of Quran.
JJ Act- Child Born In Live-in Relationship To Be Construed As Child Born To Married Couple
In a momentous ruling, the Court has recognised that a child born in a live-in relationship would have to be treated as a child born to a married couple for the purposes of surrendering a child for adoption. The High Court, through a Bench of Justices A Muhamed Mustaque and Dr Kauser Edappagath was faced with a petition moved by a couple in a live-in relationship to reclaim their child who had been surrendered for adoption by the woman.
Family Courts Directed To Mask The Name Of Adoptive Parents When Issuing Certified Copies Of Orders
The Court directed the Registrar (District Judiciary) to issue necessary directions to all family courts in the state to mask the name of adoptive parents while issuing certified copies of orders. While hearing a case pertaining to the correctness of a procedure for surrender and adoption, a Division Bench of Justices A Muhamed Mustaque and Dr Kauser Edappagath noted that the certified copy of an order issued by the Family Court disclosed the names of the adoptive parents.
Father Legally Bound To Provide Maintenance To Child Born Out Of Interfaith Marriage
[J.W. Aragadan v. Hashmi N.S & Anr.]
In a significant decision, a Division Bench comprising Justice A. Muhamed Mustaque and Justice Kauser Edappagath ruled that a father is legally obligated to provide maintenance for his child born out of an inter-faith marriage. It was observed that caste, faith or religion cannot have any rational basis for determining the parental duty of a father. All the children have to be treated alike irrespective of the faith or religion professed by the parents.
[Asbi K.N. v. Hashim M.U]
A Division Bench comprising Justice A. Muhamed Mustaque and Justice Kauser Edappagath formulated guidelines to be followed by the Family Court in a petition filed to endorse an extrajudicial divorce under Muslim Personal Law. It held that the unilateral extrajudicial divorce under Muslim Personal law is complete when either of the spouses pronounces talaq, talaq-e-tafweez or khula, in accordance with Muslim Personal Law and that the Court's seal was not necessary to the validity of any of these modes.
In an important ruling, the Court has recognised the decisional autonomy of a woman in a live-in relationship recognising the biological father of her child and the parental rights thereby flowing to him. A Division Bench of Justices A Muhamed Mustaque and Dr Kauser Edappagath was faced with a case where a mother (Anitha) in a live-in relationship surrendered her child for adoption after her partner, the biological father (John), briefly broke the relationship. After they reunited, they approached the Court to have their child restored to them.
Covid-19 & Related Developments:
Interstate Travel From Kerala To Karnataka For Emergency Situations Permitted
[A.K.M Ashraf v. Union of India]
A Division Bench of Justice Shaji P Chaly and Justice Badharudeen permitted interstate travel from Kerala to Karnataka for emergency situations like death in the family or medical treatment, irrespective of the mode of transportation preferred by the passengers, whether private vehicles or ambulances.
Unvaccinated Persons May Move Out Of Their Residences For Essential Activities
[Pauly Vadakan v. State of Kerala & Ors]
The Court observed that unvaccinated persons may move out of their residences for essential activities as per the Government Order dated 4th August issued by the State. This development occurred in a plea that challenged the said Government Order which imposed restrictions on unvaccinated persons on the ground that the petitioner had not received vaccination due to his drug allergies.
COVISHIELD To Be Administered Only After Prescribed Dose Interval Of 84 Days
[Secretary to Government of India v. Kitex Garments Ltd & Ors]
In a momentous move, a Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly allowed the appeal preferred by the Central Government against the Single Judge decision allowing the second dose of COVISHIELD to be administered prior to the prescribed interval of 84 days. The Court ruled that expert advice on the basis of scientific study cannot be substituted by a judgment of Constitutional Courts, especially when no materials are produced before the Court to show that the scientific advice given to the Government was hasty, bad or ill-advised.
Also Read: Expert Advice Based On Scientific Study Cannot Be Substituted By A Judgment Of Constitutional Courts
[X. v Principal Secretary, Local Self Government Department]
Justice Raja Vijayaraghavan V directed the State and concerned authorities to take steps to ensure that economically weak students are not sidelined by the digital divide and that they are also able to pursue education like other children who have access to such gadgets. The court also inquired regarding the prospects of putting up a website with the assistance of the IT mission where schools/needy students could get themselves registered so that individuals/Companies/NRI's/NGO's could voluntarily contribute to the purchase of phones/ digital gadgets or supply them.
'Not Everyone Above Poverty Line Is A Millionaire' : Govt Urged To Provide Free Post-Covid Treatment
[Kerala Private Hospitals Association v. Advocate Sabu P Joseph]
The Court expressed dissatisfaction with the government's move to charge for post-Covid treatment. Considering that patients experienced graver health problems after testing negative, rather than while being Covid positive, the Court ruled that one month of follow-up treatment should be ideally provided free of charge. A Division Bench of Justice Devan Ramachandran and Justice Kauser Edappagath was considering a couple of review petitions moved by Kerala Private Hospital Association challenging the unified rates fixed by the State for Covid-19 treatment in private hospitals and charging people belonging to the APL category for post-Covid treatment.
Vaccination Mandate To Enter Colleges Upheld; Advantages Given To Vaccinated Not Discriminatory
[Sanil Narayanan & Ors v. State of Kerala & Ors.]
The Court ruled that although an individual is entitled to the right to refuse medical treatment under the Constitution, such right does not affect the authority of the executive to take measures to restore normalcy amidst a pandemic. Justice P.B. Suresh Kumar observed so while upholding a Government order and a circular that mandated the students to be vaccinated with at least one dose to be allowed into higher educational institutions and their hostels which re-opened recently.
Plea Challenging Proposal To Give Homeo Immunity Booster To School Kids Disposed Of
[Dr Cyriac Abby Philips v Union of India & Ors.]
The Court disposed of a plea challenging the proposal to administer a homoeopathic drug, Arsenicum Album 30CH (Ars. Alb. 30) among school students as a preventive measure against COVID-19 without any study regarding its efficacy or safety. A Division Bench comprising of Chief Justice S. Manikumar and Justice Shaji P Chaly directed the petitioner to approach the State with a representation in the matter. The State has been directed to dispose of the representation within 10 days of receipt.
GO Fixing RT-PCR Rates For Private Laboratories Across State Quashed
[Accredited Molecular Testing Laboratories v. State of Kerala]
The Court set aside a Government Order which brought down the price of RT PCR tests from Rs. 1700 to Rs. 500 at all private laboratories across the State. Justice TR Ravi also directed the State to fix a new rate for RT PCR tests conducted by the private laboratories after discussing with the owners or representatives of the labs within three weeks.
POCSO Matters:
Settlement Via Marriage Not A Ground To Quash Proceedings Against Rape Accused Under POCSO
[Rahul P.R & Anr. v. State of Kerala]
In a noteworthy ruling, Justice V. Shircy held that a compromise of marriage between the parties is not a ground to quash the criminal proceedings against the accused under the provisions of POCSO. The Court found that rape is not only an offence committed towards the victim but it also causes a grave impact upon her relatives and society as a whole. Considering the gravity of the crime, it was decided that a settlement between the parties will not excuse the accused from judicial scrutiny.
False Allegations Of Child Molestation Lethal To The Life Of Accused
[K Raghavan v. State of Kerala]
While dealing with a POCSO case where a father was accused of molesting his minor daughter, a Division Bench comprising Justice K Vinod Chandran and Justice C. Jayachandran observed that false allegations of child molestation particularly against a parent can have a dangerous impact on the accused. while acquitting the father remarked: "Forensic and semantics apart, child molestation is a shame on society; but if the allegations are false, it is lethal to the life of the accused, more so if the accused is a parent; even if he is eventually acquitted. Here we have the case of a child raising such accusation against her father with the active support of the stepmother; sheer instigation by the latter, pleads the accused."
Cannot Recall Witness For Failure To Mark Omissions During Cross-Examination In POCSO Cases
Justice M.R. Anitha ruled that failure to mark omissions from a witness' previous statements during their cross-examination is not always a valid ground to recall them in POCSO cases. However, at the same time it was clarified that it did not intend to give the force of a precedent to the fact that material omissions need not be marked during the cross-examination of witnesses. Since the omissions have already been explained by the witnesses and there is substantial compliance with the procedures under Section 145 of the Indian Evidence Act, the Court noted that there was no need to recall the victim and her mother in this instant case.
Kottiyoor Rape Case: Sentence Imposed On Former Catholic Priest Reduced To 10 Years
[Robin Mathew v. State of Kerala]
Justice R. Narayana Pisharadi reduced the sentence imposed on former priest Robin Mathew Vadakkumchery in the infamous Kottiyoor rape case that had shaken the public conscience, where he was accused of raping and impregnating a minor girl in 2016. The POCSO court at Thalassery had sentenced him to 20 years of rigorous imprisonment under Section 376 (2)(f) of IPC and provisions of the POCSO Act. The Court while confirming his guilt reduced it to 10 years of rigorous imprisonment coupled with a fine of Rupees one lakh.
Submission In Face Of Inevitable Compulsion Not Consent
[Syam Sivan v. State of Kerala & Anr.]
In a significant judgment while considering a POCSO matter, Justice R. Narayana Pisharadi held that there is a substantial distinction between 'consent' and 'submission' to sexual intercourse. Merely because victim was in love with accused, it cannot be presumed that she had given consent for sexual intercourse, the Court said. It was also found that helplessness in the face of inevitable compulsion cannot be considered to be consent as understood in law", the court recorded in its order.
Medical Matters:
Private Complaint Alleging Medical Negligence Not Valid Unless An Expert Supports Charge Of Rashness
[Syja v. Dr. Chandramathi & Ors.]
Justice Kauser Edappagath dismissed an appeal filed by a woman who accused a doctor and a nurse of medical negligence during her delivery, resulting in the infant's death, reiterating that a private complaint alleging medical negligence may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.
Medical Termination Of 26 Weeks Pregnancy Of Minor Rape Victim Allowed
[X v. State of Kerala]
Justice P V Asha allowed the medical termination of a 26 weeks pregnant minor rape victim noting that the continuation of pregnancy is contrary to the safety and interests of the victim, who was only 15 years old. It was also held that as per section 5 of the Medical Termination of Pregnancy Act, pregnancy can be terminated beyond the gestation period of 20 weeks, where it is necessary to save the life of the pregnant woman.
[Dr. Sidharadhan K v. State of Kerala & Anr.]
Justice P.V. Kunhikrishnan ruled that no permission was required to advertise ayurvedic treatment and facilities of an institution, as long as they were not advertising any drug.However, the Bench clarified that this order should not be treated as a blanket order to publish advertisements about treatment. The Court also directed the State to issue a circular to certain authorised officers to monitor such advertisements and to take appropriate steps for any violation of Drugs and Cosmetics Rules or Act.
[Arif v State of Kerala]
The Court directed the State to design a platform to implement regulative measures for crowdfunding towards funding treatment for children affected with rare diseases. Justice P.B. Suresh Kumar part-heard the submissions today in an elaborate hearing of a plea where the public had raised around18 crores via crowdfunding to save a boy diagnosed with Spinal Muscular Atrophy (SMA) in the State.
Swap Transplants Permissible Even If Donor-Recipients Not Near Relatives
[Moideenkutty & Ors v. District Level Authorisation Committee for Transplantation of Human Organs]
In a crucial judgement concerning organ transplantation laws in India, Justice N. Nagaresh ruled that swap transplants, with prior approval of the Authorisation Committee, are permissible even if each pair of donor- recipients are not near relatives, provided there exists a special reason for the donor to donate their organ. It was noted that Section 9(3) of the Transplantation of Human Organs and Tissues Act unambiguously permits the same and thereby rendered inoperative the head 'Swap Donation' in the State Guidelines for Altruistic and Exchange Donation to the extent it permits Swap Donations only between near relatives.
[Sadhiya Siyad v. State of Kerala & Ors.]
Justice P.B. Suresh Kumar held that a medical graduate from a foreign university who has fulfilled all requisite qualifications as per the norms prevailing in that country to become eligible to be enrolled as a medical practitioner therein, need not undergo another internship in the State to be registered with the State Medical Council to practice Medicine in terms of the Travancore Cochin Medical Practitioners Act, 1953. However, it was clarified that the Council may persuade foreign medical graduates to undergo internships for diseases and treatments peculiar to the State.
Nothing Like 'Criminal Kidney': Criminal Antecedents Of Donor Irrelevant For Organ Donation
[Radhakrishna Pillai v. District Level Authorization Committee for Transplantation of Human Organs]
Justice P.V. Kunhikrishnan ruled that the criminal antecedents of a donor are not criteria to be considered by the authorization committee for transplantation of human organs. The Court observed that there is no organ in the human body like a 'criminal kidney' or 'criminal liver'. and that there was no difference between the organ of a person without a criminal antecedent and the organ of a person who has no criminal antecedents.
Qualified Homeopathic Doctors Can Prescribe Preventive And Add On Medicines To Covid 19 Patients
[Jayaprasad Karunakaran v. Union of India & Anr.]
A Single Bench of Justice N Nagaresh held that qualified homeopathic doctors can dispense prescribed adjuvant medicines for Covid-19 patients apart from the preventive medicines, citing that there is no prohibition imposed by the Government of India on Homoeopathy for treatment of patients in its AYUSH recommendations.
Include Hospital Security Personnel Within Scope Of Kerala Healthcare Service Persons Act
The Court suggested the inclusion of security guards and managerial staff of hospitals within the ambit of the Kerala Healthcare Service Persons and Healthcare Services Institutions (Prevention of Violence and Damage to Property) Act 2012. A Division Bench comprising Justice Devan Ramachandran and Justice Kauser Edappagath was considering a matter where several attacks on medical personnel were brought to the fore.
Education:
Inclusion Of Law In High School Curriculum A Matter To Be Decided By Academic Experts
[Vinod Mathew Wilson v. Union of India]
A Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly dismissed a PIL seeking to include law as a subject in the curriculum from secondary and higher secondary classes of all schools with a finding that the syllabus was set considering expert opinions. The Court opined that it is not an expert to analyze the issues and the requirements of the community in a larger perspective, and without undertaking any such studies through experts, no direction can be issued to the Centre or State to frame a policy in a particular manner
[Tejas Girish Menon v Union of India & Anr.]
Justice N. Nagaresh dismissed a writ petition challenging a particular answer given in the NEET-UG 2021 Answer Key published by National Testing Agency (NTA ) on finding that there was no "glaring mistake" to show that the answer was wrong. The plea was filed by a NEET-UG 2021 candidate who scored 695 out of 720 securing an All India rank of 293. It was held that in academic matters the academicians and academic bodies are the experts. This will be especially so when the examinations are related to admission to higher professional courses.
[Aswathi P v. Union of India]
Justice N Nagaresh ordered the Joint Director of National Testing Agency (NTA) to permit a candidate to verify the original OMR sheet and calculation sheet in the National Eligibility cum Entrance Test (NEET), in presence of officials. The Court noted that the petitioner along with her parents can be present before the Joint Director and that if the petitioner produces a copy of this order, the respondents or the Joint Director, shall permit the petitioner to verify the original OMR sheet and calculation sheet in the presence of the officials.
Scheme Allotting 80% Minority Scholarships To Muslims Quashed
The Court quashed orders of the Kerala Government announcing scholarships to Muslim students and Latin Catholic/Converted Christians in the ratio 80:20. Declaring that the orders could not be legally sustainable, Justice Shaji P Chaly, speaking for the Bench of himself and Chief Justice Manikumar directed the State to provide merit-cum-means scholarships to members of notified minority communities equally. The petition had alleged that the State was giving undue preference to the Muslim Community over the members of other minority communities in the state.
CAT 2020 Re-Test Can't Be Ordered Merely Because Petitioner Missed It Due To COVID 19
[Susruth K. v. Union of India & Ors]
Justice P.B. Suresh Kumar refused to grant relief to a candidate who could not appear for the Common Admission Test 2020 after having tested positive for Covid-19. The exam was scheduled to take place on 29.11.2020 however, the petitioner was found positive two days before the date of examination. The Court noted that merely because the petitioner could not participate in the test on account of reasons not attributable to him, it would not be justified in ordering the test to be conducted afresh since this step involved larger implications.
[Sreepathy Institute of Management and Technology v. State of Kerala & Ors.]
The Court established that a policy decision taken by the State to interdict self-financing institutions from commencing new courses in the State cannot stand legal scrutiny and cannot be sustained. Justice Raja Vijayaraghavan held so while directing the Directorate of Technical Education (DTE) to reconsider the request for a No Objection Certificate (NOC) submitted by a self-financing Engineering college to start new diploma courses in its campus.
The Court ruled that no child pursuing their elementary education should be denied admission to an age-appropriate class merely on the ground that they failed to produce a Transfer Certificate. Justice Raja Vijayaraghavan V. thereby directed a school to grant admission to the petitioners, a group of 12-year old students, to the 7th standard forthwith without insisting on the production of transfer certificates from their previous school.
Communal Reservation In University Appointments: Amendments To Kerala University Act Upheld
[State of Kerala v. Dr. G. Radhakrishna Pillai]
A Bench comprising Justice A.K Jayasankaran Nambiar and Justice Mohammed Nias C.P set aside a Single Judge's verdict quashing a notification issued by the University of Kerala on the appointment of 58 teachers treating all the posts in the categories of professors/associate professors/assistant professors in various teaching departments of the university as one category for the purposes of community reservation.
[Suo Motu v. State of Kerala]
Addressing the plight of mentally ill prisoners, the Court recently directed the State to set up a mental health establishment in at least one prison for their well-being as per Section 103(6) of the Mental Healthcare Act. Justice VG Arun passed the order after considering a report submitted by the Secretary of the Kerala State Legal Services Authority (KELSA), a statement submitted on behalf of the government and the relevant provisions under the CrPC and the Mental Healthcare Act.
LGBTQ Rights:
[Kabeer C. v. State of Kerala & Ors.]
A Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly has directed the Central government to furnish the steps taken for providing reservation to the transgender community in cases of admission in educational institutions and for public appointments. The court was adjudicating upon a plea filed in 2019 seeking the State to come up with positive steps to ameliorate the agony, fate, and plight of transgenders as dictated in the Supreme Court's NALSA ruling.
State To Frame Guidelines Against Forced Conversion Therapy Among LGBTQ+ Community
[Queerala & Anr. v. State of Kerala & Ors]
Justice P.V. Kunhikrishnan directed the State to frame guidelines against the allegedly forced conversion therapy delivered to individuals belonging to the LGBTQI+ community by medical practitioners in the State. The Court observed that if forced conversion exists as alleged by the petitioners, stringent action should be taken. It added that this was a matter to be looked into by the State and opined that a guideline was necessary in this regard for conversion therapy, if medically it is possible.
Medical Education Board Directed To Look Into Queerphobic MBBS Course Content
[Queerythm & Anr. v. National Medical Commission & Ors]
The Court directed the Undergraduate Medical Education Board to act on a representation made by two NGOs representing the queer community seeking the removal of discriminatory and inhuman references about the LGBTQIA community in MBBS textbooks. A Division Bench of Chief Justice S. Manikumar and Justice Shaji P Chaly orally remarked that this was a "serious issue" and directed the Undergraduate Medical Education Board to take immediate action on the petition.
[Hina Haneefa v. State of Kerala & Ors.]
In a landmark judgment, a Single Bench of Justice Anu Sivaraman gave a green signal to the enrolment of transgender persons in the National Cadet Corps (NCC). The pronouncement in a petition filed by transwoman Hina Haneefa, who was denied permission to apply for enrolment in her University's unit of the NCC.
