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Kerala High Court Family Law Digest 2023
Navya Benny
16 Jan 2024 6:05 AM GMT
[Joint Will] Property Of Only Deceased Testator Bound By Disposition; Does Not Operate Against Property Of Surviving Testator Till Death: Kerala HCCase Title: Jayadevi v. Narayana Pilla & Ors.Citation: 2023 LiveLaw (Ker) 6The Kerala High Court laid down that on the death of one among the testators, either in the case of joint Will or a mutual Will, the property left out by the...
[Joint Will] Property Of Only Deceased Testator Bound By Disposition; Does Not Operate Against Property Of Surviving Testator Till Death: Kerala HC
Case Title: Jayadevi v. Narayana Pilla & Ors.
Citation: 2023 LiveLaw (Ker) 6
The Kerala High Court laid down that on the death of one among the testators, either in the case of joint Will or a mutual Will, the property left out by the deceased testator included in the Will alone would stand bound by the disposition made therein and it would not operate as against the property of the other testator, who is alive, till his/her death.
Justice P. Somarajan observed that where a clause has been incorporated in the Will stating that the surviving testator will not have any right to alter any of the dispositions made under the Will, the same should not be read in substitute of requirement of a mutual Will, unless it is supported by reciprocal demise.
Case Title: Aswathi & Anr. v. Rajeesh Raman & Anr. and Betty Philip v. William Chacko
Citation: 2023 LiveLaw (Ker) 20
The Kerala High Court held that even though an order of maintenance may be enforceable at the place where the person - against whom it is made - resides, the court which passed the order also retains the power to execute it outside the jurisdiction where such person is residing.
The Single Judge Bench of Justice A. Badharudeen considered the legal question as to whether a court which passed an order of maintenance under Section 125 and 127 of the Code of Criminal Procedure (CrPC) is competent to execute the order against a person, who has been residing in a place outside its jurisdiction.
"...it is necessary in the interests of justice to visualise the plight of poor wife and children or the parents, as the case may be, if a view taken to the effect that each and every execution proceedings to enforce order of maintenance obtained by the wife, children and parents at the place where the person against whom the order was made. If such a proposition is declared, a clever husband or son or daughter, as the case may be, could very well shift their residence, outside the jurisdiction of the court where the order of maintenance sought to be executed, so as to defeat the enforcement of the order. No doubt, it may be easy for them to shift their residence periodically, to defeat the enforcement of the maintenance order," the court observed.
Case Title: RB. v. AB.
Citation: 2023 LiveLaw (Ker) 44
The Kerala High Court recently dismissed a woman's petition seeking transfer of a divorce case on the ground of alleged bias and favouritism by the Family Court Judge. The divorce case has been filed by her husband.
Justice C.S. Dias said the petitioner, a woman lawyer, has made a "scathing attack" on the Family Court Judge by questioning his integrity, honesty and impartiality, on the sole reason that he had passed a string of orders against her.
Case Title: Gireesh Kumar N v. Rajani K V and Anr.
Citation: 2023 LiveLaw (Ker) 46
The Kerala High Court reiterated that an unmarried daughter who attained majority cannot claim maintenance from her father under Section 125(1) CrPC, merely on the ground that she does not have means for her sustenance.
The Court observed that an unmarried daughter unable to maintain herself by reason of any physical, mental abnormality or injury is entitled to claiming maintenance under Section 125(1) CrPC, however, pleadings and evidence in this regard are mandatory.
Case Title: Bijy Paul v. The Marriage Officer and Ors.
Citation: 2023 LiveLaw (Ker) 49
A Petition has been recently moved before the Kerala High Court challenging the provision of the Special Marriage Act, to the extent that it mandates a waiting period of 30 days after submission of the notice of intended marriage.
The Writ Petition was filed seeking a declaration that the mandatory waiting period is unconstitutional or a declaration that the 30 days period after submission of a notice of intended marriage mentioned in Section 6 and all consequential provisions under the Act are only directory and cannot be insisted upon.
Justice V G Arun noting that the matter requires detailed consideration, observed that,
A lot of changes and liberalisation has taken place even in our customs and practices. Yet another aspect is that a large number of youngsters are employed abroad. Such people come back to their native place only on short vacations and instances are many where the marriage is conducted during the short holidays. The Special Marriage Act requires one of the intending spouses to have resided within the territorial limits of the jurisdictional Marriage Officer for at least 30 days before submitting the notice of intended marriage. Thereafter, the intending spouses have to wait for another 30 days to solemnise the marriage. Whether this waiting period is essential in view of the revolutionary changes in the information technology sector and changes in the social set up itself are matters that should engage the attention of the law makers.
Case Title: xxx v. yyy
Citation: 2023 LiveLaw (Ker) 60
The Kerala High Court said the law is well settled that an agreement by which a wife waives her right of maintenance under Section 125 of CrPC is an agreement against public policy and the same is ab initio void and not enforceable.
"Therefore, the claim for allowance of maintenance by the wife cannot be disputed or denied on the basis of a void agreement and the wife is entitled to get maintenance ignoring the said void agreement," said Justice A. Badharudeen.
Case Title: B v. H
Citation: 2023 LiveLaw (Ker) 70
The Kerala High Court observed that gold ornaments kept in a locker in the wife's name cannot amount to the entrustment of the ornaments to the husband or the husband's family and thus recovery of the same cannot be initiated along with divorce proceedings.
A division bench of Justice Anil K Narendran and Justice P.G. Ajithkumar said that in the absence of enough evidence that the gold ornaments given to the wife at the time of marriage was entrusted by her to her husband or her in-laws, it would not be possible to recover the same under the Prevention of Dowry Act, 1961.
Case Title: XXX v XXX
Citation: 2023 LiveLaw (Ker) 83
The Kerala High Court observed that when a child is grown up and is capable of making rational decisions on his/her own, the court must not give too much importance to the demands of the parents' battling the custody of the child.
A division bench of comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar was hearing a challenge against the order of a family court that had denied custody to the father. The court in this case had personally interacted with the child to ascertain his desire. The child had expressed his desire to stay with his mother.
"The welfare of the child has to be given predominance. Since he is grown up and able to take rational decision in his personal matters, too much importance cannot be given to the parents' demands."
Family Court Does Not Have Jurisdiction To Entertain Claim For Defamation: Kerala High Court
Case Title: R v. R
Citation : 2023 LiveLaw (Ker) 86
The Kerala High Court held that a family court does not have the jurisdiction to entertain a claim for defamation. For a family court to assume jurisdiction, the dispute must have a proximate relationship to the marital relationship of the parties, the court observed.
A division bench of Justice Anil K.Narendran and Justice P.G. Ajithkumar was hearing an appeal filed by the wife, claiming damages for defamation against her husband and father-in-law. The cause of action was the pleadings before the Family Court and also utterances made in the presence of others, describing her as a mentally ill person. The court considered the question of whether the family court has jurisdiction to entertain a petition claiming compensation on account of defamation. The court was of the opinion that in such cases the determining factor is the nature of the dispute involved, not the identity of the parties.
“The cause of action for the appellant to claim compensation is the injury allegedly caused to her reputation on account of such libel and slander. It is an action for tort. A tort is a civil wrong and that by itself constitutes cause of action. Whether or not she is married to the 1st respondent, the alleged statements made by the respondents if defamatory, is a sufficient cause of action.”
Case Title: Kalukutty v. P.M. John & Anr.
Citation: 2023 LiveLaw (Ker) 87
The Kerala High Court held that the monetary compensation to be awarded to a housewife who had been injured due to the reckless application of brakes while traveling in a Kerala State Road Transport Corporation (KSRTC) bus, would have to be measured and weighed on the same scales, as it would, had she been a working woman.
"...the contentions of the KSRTC, that a housewife earns no income and therefore, not eligible for compensation for disability and loss of amenities, is outrageous and beyond comprehension. The role of a mother and wife at home is beyond compare, and she is a true nation builder. She invests her time for the family and ensures that the next generation is fostered with the highest levels of excellence; and her efforts can never be taken trivially or brushed aside, as being without monetary value. The lives of human beings are never tested on the scales of their monetary worth, but by their contribution and selflessness", Justice Devan Ramachandran observed while enhancing the compensation that had been awarded by the Tribunal.
Case Title: Lalithambika & Ors. v. Grievance Redressal Committee & Ors.
Citation: 2023 LiveLaw (Ker) 103
The Kerala High Court held that a joint owner of a locker is entitled, as of right, to operate the locker, independent of the other owner, and thus, would not have to secure any letters of administration or probate under Section 29 of the Administrators-General Act, 1963, pursuant to the death of the other owner.
Perusing Section 218 of the Indian Succession Act, 1925, that stipulates as 'to whom administration may be granted, where the deceased is a Hindu, Muhammadan, Budhist, Sikh, Jain or exempted person', the Single Judge Bench of Justice Shaji P. Chaly observed:
"In my considered opinion, Section 218 of the Indian Succession Act, 1925 stipulates the manner in which administration of estate is to be granted by a court of law, in cases where a person has died intestate. This is a case where the first petitioner, who is the joint owner of a locker hired from the Bank, was prevented by the Bank from operating the locker. To put it otherwise, in my considered view, Section 218 of the Act, 1925 has no application, since the petitioner is the joint owner, who is entitled, as of right, to operate the same, even according to the Bank, independent of the other joint hirer of the locker. There is also no requirement to secure any letters of administration under Section 29 of the Administrators-General Act, 1963. There is also no case for the respondent Bank that there is any litigation instituted by anyone in the matter of assets left by the deceased Sasidharan Pillai".
Case Title: XXXXXX V State of Kerala
Citation: 2023 LiveLaw (Ker) 124
The Kerala High Court held that while considering bail applications related to offences under the POCSO Act that involve allegations of child abuse by a parent, courts should approach the matter with great care, especially when there is litigation between parents over the custody of the child.
A single bench of Justice Ziyad Rahman while allowing a bail application filed by a father who was accused of sexually assaulting his 10 year old son cautioned that :
“In such cases, when the materials placed before the court evoke a reasonable suspicion as to the veracity of the allegations, the courts should not hesitate to invoke the powers under section 438 of the Cr.P.C. What is at stake is someone's personal liberty, integrity, dignity and sometimes, the life itself. The power under section 438 is an important tool for the court to protect the personal liberty of the persons, which is one of the fundamental rights guaranteed under the Constitution of India”
Case Title: New India Assurance Co. Ltd. v. Gopinathan K.K. & Ors. and Gopinathan & Ors. v. Lijo V.J. & Ors.
Citation: 2023 LiveLaw (Ker) 140
The Kerala High Court recently considered the issue as to whether the children of a nonagenarian road accident victim, who are themselves senior citizens, would be entitled to compensation for 'Loss of Parental Consortium'.
Noting that the Tribunal had awarded an amount of Rs. 40,000/- under the head 'Loss of Love and Affection', which was challenged by the counsels for the Insurance Company on the ground that no amount could have been granted under that head since the claimants of the deceased were all senior citizens themselves, the Single Judge Bench of Justice Devan Ramachandran observed,
"I am afraid that this argument is too farfetched to be even countenanced because, whatever be the age of the father or the children, their relationship continues till the end; and for every father, his offsprings are always children".
Case Title: XXX v. YYY
Citation: 2023 LiveLaw (Ker) 179
The Kerala High Court recently held that granting permission to an Indian citizen to take his/her child abroad would not foreclose the right of the other spouse to get custody of the child.
The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar compared the situation to that of procuring custody of a child who is habituated resident in a foreign Country. It observed that while enforcing custody orders relating to a habitual resident child in a foreign country may be difficult, that is not the case when an Indian parent is permitted to take his/her child abroad- since Indian courts will be able to enforce their orders on such parent as long as he/she continues to be an Indian citizen.
It observed, "If the petitioner takes the child abroad as permitted by a court, there would not be any difficulty for enforcing the directions regarding custody of the child. The Family Court and this Court would be able to enforce such orders as long as the petitioner continues to be an Indian citizen. The enforcement of any such order is not similar to enforcement of custody orders relating to a habitual resident child in a foreign country".
Case Title: XXX v XXX
Citation: 2023 LiveLaw (Ker) 181
The Kerala High Court on Monday held that when an application is filed seeking time bound disposal of a matter, the family court cannot dispose such an application passing an order that the case “will be disposed of at the earliest”.
A division bench of Justice Anil K. Narendran and Justice P.G. Ajithkumar observed
“… if the applicant has stated any justifiable or valid reason for early hearing or time bound disposal, the Family Court has to pass an order in that interlocutory application ordering early hearing or time-bound disposal of that case or cases, specifying the time limit in that order."
Case Title: XXX & Anr. v. YYY
Citation: 2023 LiveLaw (Ker) 195
The Kerala High Court recently considered the question as to whether there is a provision entitling a Christian daughter to realize marriage expenses from the immovable property of her father or the profits therefrom, and answered the same in the affirmative.
The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar perused the provisions of the Hindu Adoptions and Maintenance Act, 1956, as well as the Muslim position on the aspect as revealed in Ismayil v. Fathima & Anr. (2011), and observed that,
"The right of an unmarried daughter to get reasonable expenses concerning her marriage from her father cannot have a religious shade. It is a right of every unmarried daughter irrespective of her religion. There cannot be a discriminatory exclusion from claiming such a right based on one's religion".
Case Title: XXX V State of Kerala
Citation: 2023 LiveLaw (Ker) 201
The Kerala High Court recently held that if a claim for maintenance under Section 125 of the CrPC made by an unmarried muslim daughter, who has attained majority, is not valid, the same claim can be made under Muslim Personal Law and the Family Court can consider it to prevent multiplicity of proceedings.
A division bench of Justice Alexander Thomas and Justice Ziyad Rahman observed that:
“We would hold that, for a major unmarried Muslim daughter, who is not suffering from any physical or mental abnormality or injury, as envisaged in clause (c) of sub-section 1 of Sec.125 of the Cr.P.C., a claim made before the Family Court under Sec.125 of the Cr.P.C., will not be maintainable. However, in case the claimant appears to be otherwise eligible for maintenance, in terms of Muslim Personal Law, then the Family Court need not drive the litigant to file a fresh claim and with the wholesome objective of avoidance of multiplicity of proceedings in maintenance claims, the Family Court can entertain the maintenance plea, under Muslim Personal Law.”
Case Title: Dhanya Martin v. State of Kerala & Anr. and other connected cases
Citation: 2023 LiveLaw (Ker) 221
The Kerala High Court recently held that the registering authority under the Special Marriage Act, 1954 cannot refuse solemnization of marriage online.
The Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas made its interim order dated September 9, 2021 in this regard absolute, and directed the State Government to follow the directions therein until the Government prescribes any other mode for compliance.
Case Title: Jayaraj R. v. Kavya G. Nair
Citation: 2023 LiveLaw (Ker) 223
The Kerala High Court has held that in order to seek divorce by mutual consent under Section 13B(2) of the Hindu Marriage Act, 1955, there ought to be mutual consent of the parties when they move the court with a request to pass a decree of divorce, as well as at the time when the court is called upon to make an enquiry, if the petition is not withdrawn, to pass the final decree.
Relying on the Apex Court decision in Smruti Pahariya v. Sanjay Pahariya (2009), the Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar observed:
"...it is only on the continued mutual consent of the parties that a decree for divorce under Section 13B of the said Act can be passed by the court. If the petition for divorce is not formally withdrawn and is kept pending then on the date when the court grants the decree, the court has a statutory obligation to hear the parties to ascertain their consent. From the absence of one of the parties for two to three days, the court cannot presume his/her consent."
Case Title: T.K.Natarajan V T.K.Raman Achari
Citation: 2023 LiveLaw (Ker) 233
The Kerala High Court recently held that unless there is a notification by the State Government as mandated under Section 264(2) of the Indian Succession Act, 1925 no court in the State will have the jurisdiction to issue probate or letters of administration.
A single bench of Justice P Somarajan observed that for the State of Kerala no such notification has been issued under the Act thus far.
“So far no notification has been issued by the State Government under Section 264(2) of the Act. In the Rules framed by the High Court (Indian Succession Rules (Kerala) 1968), though provisions were made regarding issuance of probate and letters of administration, nothing was incorporated to the effect of notification as mandated under Section 264(2) of the Act. In fact, a notification under Section 264(2) of the Act has to be issued by the Government and in the absence of such notification, no jurisdiction can be exercised by the Courts within the State of Kerala for issuance of either probate or letters of administration.”
Case Title: Arumughom Achari Ranganathan Achari & Ors v. Rajamma Sarojam & Ors.
Citation: 2023 LiveLaw (Ker) 256
The Kerala High Court recently held that married daughters belonging to the Hindu Malayala Kammala caste would also be entitled to a share in the self-acquired property of their parent.
The Court in this case was dealing with a case in which it was contended that the females would not be entitled to a share in the property, since as per the custom of the community, they were given in marriage in the customary Kudivaippu form, after giving streedhanam.
It held that any custom governing intestate succession in respect of the self acquired property of a Hindu that was inconsistent with the provisions of the Hindu Succession Act, 1956 (hereinafter, 'Act, 1956'), would be abrogated immediately on coming into force of the statute, by virtue of Section 4.
Case Title: X v. NIL
Citation: 2023 LiveLaw (Ker) 266
The Kerala High Court recently held that the law does not recognise a live in relationship as marriage and hence such a relationship cannot be recognised for the purpose of divorce either.
The law only allows parties to divorce if they are married under a recognised form of marriage as per personal law or secular law, the Court observed. So far, marriages entered into between parties through a contract does not have any recognition under law for the purpose of divorce, the Court noted.
A division bench comprising of Justice Muhamed Mustaque and Justice Sophy Thomas observed:
“Marriage as a social institution, as affirmed and recognised in legislation, reflects the social and moral ideals followed in the larger society. The Law is yet to recognise the live-in relationship as marriage. The Law accords recognition only if the marriage is solemnised in accordance with the personal law or in accordance with secular law like the Special Marriage Act.”
Case Title: Dheera N.G. & Anr. v. Simesh S. and Simesh S. v. Dheeran N.G. & Anr.
Citation: 2023 LiveLaw (Ker) 267
The Kerala High Court recently enhanced the monthly maintenance allowance of the paralyzed estranged wife and son of a headload worker, on taking note of the latter's neglect and refusal to maintain his wife and child.
The Single Judge Bench of Justice V.G. Arun observed that in such cases, Court ought to be aware of the dominant purpose behind Section 125 Cr.P.C. that stipulates for maintenance, which is that of ensuring that the neglected wife, child and parents are not left in a 'helpless state of distress, destitution and starvation'.
"The court should also be convinced about the existence of the following factors; i) that the respondent has neglected or refused to maintain the claimant. (ii) the claimant do not have the means to maintain herself/himself. (iii) the respondent has sufficient means for maintaining the claimant," it added.
Case Title: XXX v. XXX
Citation: 2023 LiveLaw (Ker) 277
The Kerala High Court recently held that in matters of child custody, the welfare of the child alone is to be considered. A mother may be 'morally bad in the societal sense', but that does not mean the mother is bad for the welfare of the child, the Court observed.
A division bench comprising Justice Muhamed Mustaque and Justice Sophy Thomas observed,
“In a matter related to the child's custody, the welfare aspect alone has to be considered first. A man or woman may be bad for someone in a contextual relationship, that does not necessarily mean that the person is bad for his/her child. A mother may be morally bad in the societal sense, but that mother may be good for the child as far as the welfare of the child is concerned. The so called morality is created by society based on their own ethos and norms and should not necessarily reflect in a contextual relationship between a parent and child.”
Case Title: The Chairman and Managing Director, BSNL & Ors. v. C.R. Valsalakumari & Anr.
Citation: 2023 LiveLaw (Ker) 283
The Kerala High Court recently upheld the Administrative Tribunal order which stated that Child Care Leave (CCL) facility cannot be said to be restricted to the two 'eldest' surviving children alone, particularly when such facility had not been availed in respect of the first two children.
Interpreting Section 43-C of the Central Civil Service (Leave) Rules 1972, the Division Bench comprising Justice Alexander Thomas and Justice C. Jayachandran said,
"CCL benefit is available for 'two children', no matter whether they are 'eldest' or not. The only stipulation is that the Rule is available 'upto two children'."
Case Title: Kripesh Krishnan v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 290
The Kerala High Court quashed criminal proceedings against a married man, who was alleged to have committed rape on a married woman.
Justice K. Babu observed that in the present case, the prosecutrix (2nd respondent herein) was a married woman with children, and aware that the petitioner accused was also married. The Court noted that despite the same, she maintained sexual relations with the petitioner on many occasions.
"It is difficult to conclude that the prosecutrix had not given consent for the sexual relationship with the petitioner under any misconception of facts so as to hold that the petitioner is guilty of having committed rape within the meaning of Section 375 of IPC," the Court thus noted.
Case Title: Rajam Babu V Babu K.K
Citation: 2023 LiveLaw (Ker) 294
The Kerala High Court held that when a wife seeks transfer of a matrimonial case to a court of her convenience, it should ordinarily be allowed by the court.
A division bench of Justice Anil K Narendran and Justice P G Ajithkumar passed the order relying on a catena of Apex Court decisions that held that the convenience of the wife has to be prioritised in a petition for transfer of a matrimonial dispute.
Case Title: Govindarajan @ Govind v. Vidya & Anr.
Citation: 2023 LiveLaw (Ker) 304
The Kerala High Court recently reiterated that an application for amendment can be permitted by a Family Court despite the absence of provisions for amendment in the Code of Criminal Procedure (Cr.P.C.). The Single Judge Bench of Justice V.G. Arun relied upon various precedents and proceeded to observe that technicalities would not have any place in maintenance cases under Section 125 of Cr.P.C.
Case Title: XXX v. YYY & Anr.
Citation: 2023 LiveLaw (Ker) 316
The Kerala High Court held that where there is prima facie evidence indicating long cohabitation between a man and a woman, a plea seeking direction to the man to subject himself to DNA Test for determining their alleged child's paternity cannot be brushed aside.
"If an order of the nature is declined that would have the impact of bastardizing the minor girl child among the public. Undoubtedly that would caste a social stigma upon the child as well as the mother respectively as 'bastard' and 'immoral'," the Single Judge Bench of Justice Mary Joseph observed.
Case Title: Arun A. v. Marriage Officer
Citation: 2023 LiveLaw (Ker) 321
The Kerala High Court reiterated that foreign judgments can be accepted as conclusive in India where the parties voluntarily and effectively submit to the jurisdiction of the foreign court and consent to the grant of the relief, although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.
Justice P.V Kunhikrishnan observed that in such circumstances, it was allowed to stray from the general rule that foreign matrimonial judgment can be recognized in India only if the jurisdiction assumed by the foreign court and the grounds on which the relief is granted are in accordance with the matrimonial law under which the parties are married.
Case Title: Santha Kumari v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 348
No one else can give to the ward all that a mother can give to her, said the Kerala High Court while uniting a differently abled child with her mother.
The Division Bench comprising Justice P.B. Suresh Kumar and Justice C.S. Sudha invoked parens patriae jurisdiction to ensure that the child is not left "at the mercy of others".
Case title: Abdul Mujeeb v Suja
Citation: 2023 LiveLaw (Ker) 392
The Kerala High Court considered whether educational expenses paid to the children which were later reimbursed by the father's employer shall be reckoned as payment towards maintenance allowance under Section 125 CrPC.
The provision stipulates payment of compensation to wife, children and parents.
Justice VG Arun stated that educational expenses paid to children which were later reimbursed cannot be treated as maintenance allowance and held thus:
“It is not in dispute that the petitioner had not paid any amount to the first respondent/wife and payments to the other respondents (children) were towards tuition fees and other educational expenses. The object of Section 125 being to prevent destitution and vagrancy by ensuring reasonable allowance towards maintenance, payment of educational expense, which was later reimbursed, cannot be treated as the maintenance allowance contemplated under Section 125.”
Case Title: Vineet Ganesh v. Priyanka Vasan
Citation: 2023 LiveLaw (Ker) 395
The Kerala High Court laid down that proceedings initiated under the Protection of Women from Domestic Violence Act, 2005 (D.V. Act) before a Judicial Magistrate of the First Class (JFCM) cannot be transferred to a Family Court.
The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar reasoned that the Legislature had been fully conscious in enacting the D.V. Act much after the Family Courts Act, 1984, and thereby confining the jurisdiction to entertain an application under Section 12 of the D.V. Act ('Application to Magistrates') to the Judicial Magistrates.
"As long as the Family Court or, for that matter, other civil courts cannot have original jurisdiction to entertain an application under Section 12 of the D.V. Act, no application under Section 12 pending before a Magistrate can be transferred to a Family Court," the Bench observed.
Case Title: Prameela L. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 408
The Kerala High Court recently upheld a Single Judge's finding that a Legal Heirship Certificate cannot be issued in favour of a person in the absence of a valid legal adoption and documents evidencing the adoption, so as to enable them to claim compassionate appointment upon the death of the alleged adoptive parent.
A Division Bench of Justice Alexander Thomas and Justice C. Jayachandran added that the lack of any evidence supporting the adoption on record justifies denying the requested relief, upholding the Single Judge's order.
"In the absence of a valid and legal adoption, and in any case, in the absence of documents evidencing the factum of adoption, albeit not in terms of law, we cannot find fault with the respondent authorities in not issuing a Legal Heirship Certificate in favour of the petitioner. More than the absence of a legal document evidencing a legal adoption, what weigh with us to refuse the relief sought for is the complete dearth of evidence suggesting an inference as to the factum of adoption from the materials on record."
Case title: Chandhini T.K. V State of Kerala
Citation: 2023 LiveLaw (Ker) 427
The Kerala High Court recently held that the term 'relative' appearing in Section 498A of IPC would not include husband's girlfriend, or a woman with whom a man has sexual relationship outside of marriage.
Section 498A, IPC defines and provides punishment for cruelty committed by the husband or relative of the husband of a woman.
Justice K. Babu added that Section 498-A being a penal provision, has to be construed strictly. The Court held thus:
"The specific language of the Section and the Explanation thereof lead to the conclusion that the word 'relative' would not include a woman with whom a man has had sexual relations outside of the marriage. By no stretch of imagination, a girlfriend or even a woman who maintains sexual relations with a man outside of marriage in an etymological sense would be a 'relative'. The word 'relative' brings within its purview a status. Such status must be conferred either by blood or marriage, or adoption. If no marriage has taken place, the question of one being relative of another would not arise. S.498A, IPC being a penal provision, would deserve strict construction, and unless a contextual meaning is required to be given to the statute, the said statute has to be construed strictly.”
Case Title: X v. Y
Citation: 2023 LiveLaw (Ker) 429
In an unprecedented move, the Kerala High Court directed the appointment of an independent counsel for rendering pro bono legal services to represent a child in a custody battle between its parents.
While passing the order, the Division Bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas noted that often, the best interests of children are not properly represented in the 'wrangle' between the mother and father.
Case Title: Greik Xavier V Sub Inspector Of Police
Citation: 2023 LiveLaw (Ker) 433
The Kerala High Court quashed a 12 years old cruelty case against husband, observing that the parties have settled their disputes and the victim does not want to prosecute the matter further.
Justice K Babu added that no useful purpose is likely to be served by allowing criminal prosecution based on a FIR, the investigation of which commenced twelve years back but reached nowhere.
“Speedy investigations and trial are mandated by the letter and spirit of the provisions of the Code and the constitutional protection enshrined in Article 21 of the Constitution,” the bench observed.
Case title: Chandi Samuval V Saimon Samuval
Citation: 2023 LiveLaw (Ker) 438
The Kerala High Court held that a positive law is no sine qua non for granting past and future maintenance and that the right of the elder to such maintenance is recognised irrespective of their religion.
Justice A. Muhamed Mustaque and Justice Sophy Thomas observed thus:
“Even without any positive aid of law the court could have recognized the right of the elder irrespective of the religion to claim the past maintenance and future maintenance. Merely for the reason that the legislation had only provided measures for the award of prospective maintenance, that cannot result in denial of the claim for past maintenance.”
Case Title: Lalamma John V Jijo Varghese
Citation: 2023 LiveLaw (Ker) 442
The Kerala High Court refused to interfere with an order passed by a competent Family Court in the UK directing a minor child to be brought back from India to England, where her parents reside.
The child was residing with her maternal grandmother in India following a dispute between her parents. She was brought to India by her mother and the UK Court is seized with a plea moved by her father and grandfather, seeking her custody. The mother had given an undertaking that she would produce the child before the UK Court.
A division bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas observed that before honouring a competent foreign court's order in child custody matters, it has to ensure that the welfare of the child will be protected.
In the present case, it observed that the UK court had noted the measures to protect the welfare of the child. Thus it said,
“Parental custody is always preferred as the parents are competent to protect the welfare of the child. We are not persuaded to accept the arguments of the learned counsel for the petitioner, as the UK court had noted the measures to protect the welfare of the children. When the competent court of jurisdiction in UK has already taken measures, the comity of courts demands to respect that order unless such order is passed without any jurisdiction.”
Case name: V V Jaya v. M P Rajeswaran Nair
Citation: 2023 LiveLaw (Ker) 452
The Kerala High Court recently held that divorced wife cannot 'cling on' to the matrimonial home claiming it to be shared household, superseding the order of eviction passed by a competent Civil Court.
Justice A. Muhamed Mustaque and Justice Sophy Thomas held thus:
“By the impugned judgment, the Family Court ordered eviction of the appellant from the petition schedule building in accordance with the procedure established by law, and her claim for residence in that building, as a shared household cannot supersede the decree for eviction granted by a competent civil court. In any view of the matter, the appellant has no right to reside in the petition schedule building and so, she is bound to vacate that building forthwith.”
Case title: N.Sarojini Nambramcheri V Union of India
Citation: 2023 LiveLaw (Ker) 471
The Kerala High Court recently held that there was no impediment for the Indian Army in granting family pension to the second wife of a deceased serviceman even if the first marriage was not dissolved legally, as long as the first wife was not interested in the pension.
Justice Devan Ramachandran observed that the Indian Army could consider the claim of the second wife since their marriage was recognised by the Indian Postal Department. It observed thus:
“Even if it is taken that the divorce as reflected in Ext.P2 is not legally valid, it would cause no prejudice to the Indian Army, as long as Smt.K.T.Chandralekha does not stake a claim to the family pension. This is more so because, the marriage of late K.V.Venugopalan and the petitioner appears to have been accepted by the Indian Postal Department, which is evident from Exts.P7 and P8, and hence it would only be in furtherance of such that the Indian Army also considers their marriage to be valid.”
Case Title: Theresa Davis v. State of Kerala
Citation: 2023 LiveLaw (Ker) 476
The Kerala High Court has directed the State Government to inform all registering authorities that marriages can be registered by securing the presence of the parties by video conferencing.
Justice Devan Ramachandran directed the State Government to comply with the direction within two weeks so that parties would not have to approach the Court each time with the same request.
“I also deem it necessary to direct the State of Kerala to make sure, through its competent Authority, that all Registering Authorities are informed of the afore precedent through appropriate means, so that parties will not have to approach this Court every time they require the benefits as granted therein. This shall be done in full compliance; and a report to that effect produced before this Court within a period of two weeks from the date of receipt of a copy of this judgment.”
Case title: Sujith Kumar S V Vinaya V S
Citation: 2023 LiveLaw (Ker) 494
The Kerala High Court, upholding an order passed by the Family Court, stated that DNA test cannot be conducted merely because the parties have a dispute or suspicion regarding paternity.
Justice A. Badharudeen observed that DNA test or other scientific tests can only be resorted to when there was a specific denial of paternity of the child.
“It has to be held further that when DNA test cannot be resorted to clear a suspicion regarding the paternity of the child, in the absence of specific denial of paternity of the child. In view of the above legal position, the dismissal of the application put in by the petitioner to conduct DNA test with a view to clear his suspicion/doubt regarding the paternity of the child, can only be justified.”
Case Title: Ramanadhan v. Raji
Citation: 2023 LiveLaw (Ker) 498
The Kerala High Court reiterated that retaining a marriage that has irretrievably broken down would amount to cruelty to both parties, and no meaningful purpose would be served by the same.
The Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas, took note of a recent Apex Court decision which laid down that keeping parties together despite irretrievable breakdown of marriage amounts to cruelty on both sides [2023 LiveLaw (SC) 727].
Case Title: Jisha Mohan v. Vishal V.M.
Citation: 2023 LiveLaw (Ker) 502
The Kerala High Court has held that a mother cannot be denied sole guardianship and custody of a minor child merely on the ground that she is relocating to another country for better job opportunities and fortune.
The Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas noted that merely because there is a parental battle for custody of the child, the same did not mean that the parties would have to remain locally without relocating elsewhere, in order to retain the custody of the child.
“If the relocation of the appellant is for better fortune, that cannot hold against her from claiming custody, provided, that the child's welfare is also protected. The child should recognise his biological parents and have every right to grow under their care and protection. If the biological parents are willing to protect the best interest of the child, denying the child to grow in a natural and familial atmosphere itself is against the best interest of the child,” the Court observed.
Withholding Mutual Consent For Divorce In A Failed Marriage Is Cruelty: Kerala High Court
Case title: Sreedharan v. Ahsa
Citation: 2023 LiveLaw (Ker) 503
The Kerala High Court has said that withholding mutual consent to dissolve a failed marriage amounts to cruelty.
A Division Bench comprising Justice A.Muhamed Mustaque and Justice Sophy Thomas relied on the concept of "no fault divorce" to state people are starting to realise that there is a "sensible way" of parting on mutually agreed terms.
Case title: Neena T V State of Kerala
Citation: 2023 LiveLaw (Ker) 504
The Kerala High Court recently held that the benefit of the Kerala Freedom Fighter's Continuous Pension (KFFCP) cannot be denied to the divorced daughter of a deceased freedom fighter solely on the ground that her brothers were earning and financially settled.
Justice Devan Ramachandran remarked that the reason cited for the rejection of pension, that that the petitioner would be taken care of by her brothers, was based on outdated patriarchal notions:
“I am afraid that the submissions of the learned Government Pleader smack archaic patriarchal notions. Merely because the petitioner has two brothers, an automatic assumption drawn that she would be taken care of by them for her life, can only be seen to be one solely on account of the afore notions and nothing else.”
Case Title: Antony Joseph v. The Sub-Registrar
Citation: 2023 LiveLaw (Ker) 525
The Kerala High Court has held that the registering authority did not have to look into the nature of divorce obtained by the parties while considering their marriage applications under Section 8 of the Special Marriage Act.
The bench observed that the Registering Authority only has to be satisfied that neither party who intends to marry has a living spouse at the time of registration of marriage.
“Going by the mandate of Section 8 of the 'Act', it only requires the parties to satisfy the Registering Authority that they have no living spouses at the time when the application is made and the marriage is registered. Therefore, the only aspect to be decided by the respondent is this and nothing more.”
Case Title: Sangeetha R. v. The Secretary & Ors.
Citation: 2023 LiveLaw (Ker) 527
In an interesting development, the Kerala High Court invoked its parens patriae jurisdiction to select the name of a child, caught in a dispute between her estranged parents with respect to what her name should be.
Justice Bechu Kurian Thomas reasoned that attempting to resolve the dispute between the parents will cause inevitable delay and in the meanwhile, the absence of a name would not be conducive to the welfare or the best interests of the child.
"In the exercise of such a jurisdiction, the paramount consideration being the welfare of the child and not the rights of the parents, the Court has to perform the task of selecting a name for the child. While choosing a name, factors like the welfare of the child, cultural considerations, interests of parents and societal norms can be reckoned by the court. The ultimate objective being the well-being of the child, the court has to adopt a name, taking into consideration the overall circumstances. Thus, this Court is compelled to exercise its parens patriae jurisdiction to select a name for the child of the petitioner," the Court observed.
Kerala High Court Comes To Aid Of Interfaith Couple, Both Employed With Govt
Case Title: Arjun Rajasekhar v. Director General of Police (Law & Order) & Ors.
Citation: 2023 LiveLaw (Ker) 536
The Kerala High Court came to the aid of a Lance Naik in the Indian Army and an employee of the Indian Railways, seeking to marry each other. Their interfaith relationship was being opposed by the woman's family.
The Division Bench comprising Justice Anu Sivaraman and Justice Viju Abraham ordered that the woman could not be detained against her will, and thereby directed her release. The man's family said it would take necessary steps for ensuring the safety of the detenue.
Case Title: Abhaya V. Venu v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 539
The Kerala High Court has granted leave to a life convict undergoing incarceration at Central Prison & Correctional Home, Viyyur for undergoing IVF/ICSI treatment.
The convict's wife had approached the Court seeking parole for her husband who had been undergoing imprisonment for the past 7 years, so that he could complete the treatment procedure to have a child, via IVF/ICSI (In Vitro Fertilization / Intracytoplasmic Sperm Injection) Procedure.
Wondering how the Court could turn a blind eye to such genuine requests merely on technicalities, the Single Judge Bench of Justice P.V. Kunhikrishnan observed,
"...when a wife comes before this Court with a request that she wants a child in the relationship with her husband who is undergoing imprisonment in Central Jail, this Court cannot ignore the same on technicalities. Conviction and sentence in criminal cases is mainly to reform and rehabilitate the offenders. The state and society want to see the convict coming out of jail after rejuvenation as a reformed man/woman who will be part of our society. A person who has undergone a sentence in a criminal case need not be treated as a different person when he comes out. He has every right to lead a decent life just like any other citizen".
Case Title: Fousiya v Shamsudheen Pokkadan
Citation: 2023 LiveLaw (Ker) 542
The Kerala High Court has ordered the return of patrimony amount given by a woman's family to her husband at the time of their marriage, irrespective of the fact that there was no documentary evidence to prove the source of money or the handing over of money.
Justice Anil K Narendran and Justice Sophy Thomas observed that in matrimonial cases, documentary evidence cannot be insisted upon to prove every transaction taken place during a marriage. The Court relied upon the oral testimony given by the wife's father and brother regarding the patrimony amount. It held thus:“It is true that no documentary evidence is there to prove the source of money or to prove the handing over of money at the time of marriage. But the oral testimony of PWs 1 and 2 is clear and cogent enough to come to a conclusion that Rs.1,50,000/- was handed over to the respondent at the time of marriage as patrimony of the appellant.”
Case Title: Noushad Flourish v. Akhila Noushad & Anr.
Citation: 2023 LiveLaw (Ker) 550
The Kerala High Court has held that a Muslim wife who effected her divorce by pronouncement of 'Khula' cannot claim maintenance from her husband under Section 125 CrPC, after effecting Khula.
Divorce by 'Khula' is a divorce at the instance of, and with the consent of the wife, by which she gives or agrees to give a consideration to the husband for her release from the marriage tie. Perusing Section 125 (4) of Cr.P.C., Justice A. Badharudeen noted that no wife shall be entitled to receive an allowance for the maintenance or interim maintenance, if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband or if they are living separately by mutual consent.
"When the wife effects divorce by Khula for getting her released from the husband, the same, in fact, is akin to refusal of the wife to live with her husband, as provided under Section 125(4) of Cr.P.C. If so, the wife, who effected divorce by Khula at her volition and thereby refuses to live with her husband voluntarily, is not entitled to get maintenance from the date of Khula in view of the restriction provided under Section 125(4) of Cr.P.C.," the Bench observed.
Case title: XXX v State of Kerala
Citation: 2023 LiveLaw (Ker) 551
The Kerala High Court dismissed the anticipatory bail application of the mother of a minor daughter for facilitating the stepfather to commit rape and sexual assault on the minor child.
Justice Gopinath P. observed that the allegations against the mother, if proved true, were an insult to the motherhood. The Court also noted that since biological mother was arrayed as an accused, she might be in a position to influence or intimidate the minor child to give evidence in favor of the accused persons.
“I am of the view that the petitioner is clearly not entitled to anticipatory bail. The allegation against the petitioner are very serious and if true they are an insult to motherhood. The apprehension expressed by the learned Public Prosecutor appears to be real. The petitioner being the biological mother of the minor victim may be in a position to influence or intimidate the victim if she is granted bail. The statement of the victim that she was subject to rape even in the presence of the petitioner / 2nd accused is another reason which compels me to hold that the petitioner is not entitled to bail.”
Case Title: Kakkovil Muliyarakkal Krishnan Children V Kakkovil Muliyarakkal Vilasini(Died)
Citation: 2023 LiveLaw (Ker) 565
The Kerala High Court has held that a mother can validly execute a document on behalf of her minor children as their natural guardian even during the lifetime of the father, if he is not involved in the lives of the minors and was deemed as absent.
Justice A. Badharudeen relied upon Section 6 (a) of the Hindu Minority and Guardianship Act (HMG) and the decision of the Apex Court in Gita Hariharan (Ms) and Another Vs. Reserve Bank of Indian and Another (1999) and observed that the mother can act as the natural guardian of the minor and all her actions would be valid even during the lifetime of the father, in the absence of father, as per Section 6(a) of the HMG Act and Section 19(b) of the Guardians and Wards Act, 1890.
“Thus, it appears that as per the ratio in Githa Hariharan's case (Supra), affirmed in Akella Lalitha's case (Supra), the legal position is that Section 6(a) does not give an impression that the mother can be considered to be the natural guardian of the minor only after the lifetime of the father. When the mother acts as the guardian of the minor during the lifetime of the father without the matter going to the court, and the validity of such an action is questioned on the ground that the mother is not the legal guardian of the minor, in view of Section 6(a) of the HMG Act, the mother could function as guardian only after the lifetime of the father and not during his lifetime. Such an interpretation would violate gender equality, one of the basic principles of our Constitution. “
Case title: Narayanan v State of Kerala
Citation: 2023 LiveLaw (Ker) 569
The Kerala High Court has acquitted a man and his family who were convicted under Section 498A IPC for cruelty against a deceased woman on the finding that the parties were living together as husband and wife, based on a marriage agreement and their marriage was not solemnized.
Justice Sophy Thomas observed thus: “In the case on hand, since the marriage between the 1st revision petitioner and deceased Chandrika was not solemnised, and they started living together on the basis of a marriage agreement, which has no legal sanctity in the eye of law, they have to be treated as persons in live-in-relation, and they were not husband and wife, in order to attract an offence punishable under Section 498A of IPC. So, the trial court as well as the appellate court went wrong in finding the revision petitioners guilty under Section 498A of IPC and sentencing them for that offence.”
Dowry Demand Without Ingredient Of Cruelty Not An Offence U/S 498A IPC: Kerala High Court
Case Title: Niyas v. State of Kerala
Citation: 2023 LiveLaw (Ker) 571
The Kerala High Court held a mere demand for dowry or any property or valuable security without the ingredient of 'cruelty' would not attract the offence under Section 498A IPC. It held that when both elements of demand and cruelty are combined, then liability would be fastened on an accused.
Justice P. Somarajan observed: "A mere skirmish in the ordinary life between the spouses or intermittent quarrel or even a frequent quarrel, unless constitutes the ingredient of 'harassment' for meeting an unlawful demand for property or valuable security or on account of failure to meet such unlawful demand, would not constitute or attract the criminal liability that can be fastened for the offence under Section 498 A IPC. Likewise, a demand for dowry or any property or valuable security without the ingredient of “cruelty” as explained under clause (a) or (b) will not attract the said offence, but a combined effect of both these would bring home the liability under Section 498 A IPC."
Case name: PKV v AKA
Citation: 2023 LiveLaw (Ker) 574
The Kerala High Court has held that wife seeking the help of her husband's employer for patching up their broken marital relationship and to bring him back to normal life after finding out his issues, or her not knowing cooking cannot be grounds sufficient to constitute 'cruelty'.
Relying upon the decision in Uthara v. Sivapriyan (2022), the Court observed, "...legally, one party cannot unilaterally decide to walk out of a marriage, when sufficient grounds are not there justifying a divorce, under the law which governs them, saying that due to non-co-habitation for a considerable long period, their marriage is dead practically and emotionally. No one can be permitted to take an incentive out of his own faulty actions or inactions".
Case title: Siju K Bhanu v The District Collector & Maintenance Appellate Tribunal & Connected Case
Citation: 2023 LiveLaw (Ker) 575
The Kerala High Court came to the rescue of an ailing nonagenarian senior citizen who was suffering from dementia and was kept away from his wife by their son.
Justice Devan Ramachandran observed that the wife of a senior citizen has absolute and inviolable right to have the custody and company of her husband during the winter years of their lives. It held that the son has no right to keep his parents away from each other. Court stated: “Even being dementia afflicted and his memories fading, the senior citizen clearly finds solace with his wife – as the Social Justice Officer puts it in his report, “they shared good moments”. He must never be denied this, whatever Sri.Siju K.Bhanu may say in justification. The right of Smt.Kameela – the wife of the senior citizen – for his custody and consortium is inviolable and absolute. Her son, Sri.Siju K.Bhanu can never deny this.”
Case Title: S v. D & connected matter
Citation: 2023 LiveLaw (Ker) 581
The Kerala High Court held that if the grounds for divorce under Section 13 of the Hindu Marriage Act are not proven, the same grounds cannot be used for granting judicial separation as an alternate relief under Section 13-A.
Relying on the decision in Snigdha Chaya Devi v. Akhil Chandra Sarma (1992), the Division Bench comprising Justice Anil K. Narendran and Justice Sophy Thomas observed: "When the grounds for judicial separation under Section 13-A of the Hindu Marriage Act are the same as that for divorce, under Section 13 (founded on grounds other than excluded) and when the grounds for divorce under Section 13 of the Hindu Marriage Act are not made out, there cannot be a decree for judicial separation as an alternate relief. If the grounds, on which the petition for divorce was founded, were not made out, then the alternate relief of judicial separation also cannot be granted."
Case Title: Mohamed v. Kunhalankutty & Ors.
Citation: 2023 LiveLaw (Ker) 613
The Kerala High Court recently pondered upon the question as to how far a Muslim could dispose of their properties by Will. Interpreting Paragraphs 117 and 118 of the Mulla's Principles of Mahomedan Law, which provides for 'Bequests to Heirs' and 'Limit of Testamentary Power' respectively, the Single Judge Bench of Justice A. Badharudeen explained that,
"...the power of a Mahomedan to dispose of his property by Will is limited in two ways. Firstly, as regards the persons to whom the property may be bequeathed, and, secondly, as regards the extent to which the property may be bequeathed. The only case in which a testamentary disposition is binding upon the heirs is where the bequest does not exceed the legal third and it is made to a person who is not an heir. But a bequest in excess of the legal third may be validated by the consent of the heirs; similarly, a bequest to an heir may be rendered valid by the consent of the other heirs. The reason is that the limits of testamentary power exist solely for the benefit of the heirs, and the heirs may, if they like to forgo the benefit by giving their consent. For the same reason, if the testator has no heirs, he may bequeath the whole of his property to a stranger: (see Baillie, 625)"
Case Title: George Varghese v. Treesa Sebastian & Ors. and connected matter
Citation: 2023 LiveLaw (Ker) 623
The Kerala High Court has laid down that the Family Court has the jurisdiction to entertain a petition seeking reliefs under the Protection of Women from Domestic Violence Act, 2005.
"What is discerned from the provisions of Section 12 is that an aggrieved person is free to elect any of the reliefs. The legislature in the wisdom has framed the Act by taking into consideration the doctrine of election. The parties are free to elect either a remedy under Section 12 or reserve the right to claim other reliefs as provided under Sections 18, 19, 20 and 21 in the manner and mode as has been done. The plain and simple reading of the provisions of Section 26 left the question clear and unambiguous that a party seeking a claim under any provisions of the civil or criminal court much less a family court can always claim relief in addition as provided under Sections 18, 19, 20, 21 and 22 of the Act," the Division Bench comprising Justice Amit Rawal and Justice C.S. Sudha explained
Maintenance Application Under Chapter IX CrPC Cannot Be Dismissed For Default: Kerala High Court
Case title: Elon Christ Stephen v Steaphen Antony Venasious
Citation: 2023 LiveLaw (Ker) 624
The Kerala High Court considered whether an application filed for maintenance allowance under Chapter IX of CrPC can be dismissed for default (non-appearance of party seeking maintenance). Chapter IX, Section 125-128 of CrPC contemplates Order for Maintenance of Wives, Children and Parents.
Justice C.S. Dias observed that Magistrate has no implicit power to dismiss an application filed under Chapter IX CrPC for default summarily. In the facts of the case, the application was dismissed for non-representation of the petitioner-minor son who was appearing through his mother for claiming maintenance from the respondent-father.
Case Title: Saheer v. State of Kerala & Connected matter
Citation: 2023 LiveLaw (Ker) 666
Interpreting the law on triple talaq, the Kerala High Court recently quashed criminal proceedings against a Muslim husband on finding that he pronounced talaq-e-hasan which was legal and valid under Muslim Personal Law.
“The copies of the talaq kuries would show that several mediations took place. It is further revealed that respondent No.3 did not co-operate for a Court Centred Mediation also...The materials placed before the Court would reveal that a series of mediations to reconcile the disputes between the parties failed. There are no indications that the talaq pronounced by the petitioner was instantaneous or irrevocable. The resultant conclusion is that the talaq pronounced by the petitioner is not talaq-e-biddat prohibited under Section 4 of the Act.”
Relying upon the landmark decision of the Apex Court in Shayara Bano v. Union of India (2017), Justice K. Babu observed that talaq-e-biddat or other similar forms of instant talaq were void and unconstitutional and not talaq-e-hasan or talaq-e-ahsan.
Case Title: Rijas M T v, Hafseena M
Citation: 2023 LiveLaw (Ker) 680
The Kerala High Court has expressed concern over the arduous procedure to obtain a maintenance order and has suggested the Parliament to bring about apposite changes in the law to ameliorate the situation.
"Destitute women and children are made to loiter in the corridors of the Courts to receive their monthly maintenance, which adds to their woes...this Court is of the firm view that the time is ripe for the Parliament to ponder in bringing corresponding changes in Chapter IX of the Code [Order for Maintenance of Wives, Children and Parents] to make it consonance with the law declared in Rajnesh or even think of a comprehensive maintenance law," Justice CS Dias observed.
Case Title: Pinchu Chandran v Arya J
Citation: 2023 LiveLaw (Ker) 710
The Kerala High Court recently held that the Family Court can strike off the defence of the opposite party, only as a last resort on failure to pay interim maintenance under Section 125 CrPC during the pendency of maintenance proceedings.
In terms of the proviso to Section 125 CrPC, the Court can issue an order for payment of interim maintenance during the pendency of maintenance proceedings and such orders shall be disposed of within sixty days from the date of service of notice on the opposite side. Section 128 CrPC pertains to the procedure for enforcement of maintenance orders including orders for interim maintenance.
In allowing the plea, by granting the husband a last opportunity to pay maintenance, Justice C.S. Dias relied upon the Apex Court decisions in Kaushalya v. Mukesh Jain (2020), Rajnesh v. Neha (2020) and held thus:
“Perhaps, it is keeping in mind the bottlenecks in the procedure and to uphold the majesty of the Court, the Honourable Supreme Court in the afore-cited precedents has held the defence of the erring husband/father/son can be struck off in a proceeding under Section 125, as a last resort, on his failure to pay interim maintenance.”
Case Title: Jagadesh Ramachandran v The Maintenance Tribunal, Thiruvananthapuram
Citation: 2023 LiveLaw (Ker) 717
The Kerala High Court recently observed that senior citizens cannot be denied the company and presence of siblings and close relatives, as long as they desire it.
The petitioner's son was aggrieved by the order of the Maintenance Tribunal that directed the senior citizen mother to be relocated to his aunt's (mother's sister) house.
Justice Devan Ramachandran noted that both the son as well as the sister of the senior citizen were expressing their concern and wanted to ensure her well-being. It thus noted that more inquiries were required to be conducted by the Maintenance Tribunal since the son submitted before the Court that he was providing all facilities to his mother.
Case Title: XXX v. Union of India & Ors. and connected matters
Citation: 2023 LiveLaw (Ker) 740
The Kerala High Court recently laid down that Indian Courts are vested with the jurisdiction to protect the best interest or welfare of a child or an incapable adult, if so warranted, in circumstances where the Court forms an opinion that the party who approached it has no legal remedy before the Court beyond Indian territory.
The Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas observed that the Court, on invoking its writ jurisdiction, would have the power to adjudicate and that the parens patriae and nationality rules would also apply to protect the best interest of the child, or the welfare of the incapable adult.
It however cautioned that the Court ought to be circumspect to exercise its jurisdiction when it finds that the law of the foreign country can be invoked to protect the welfare or best interest of the child or incapable adult.
"There may be different circumstances related to the cases. If parties are ordinarily residing in a foreign country and can avail legal remedy in that foreign country, the courts in India shall not invoke such jurisdiction to regulate the affairs of its citizens living beyond territorial jurisdiction of the country. The Court steps into the shoes of a parent invoking parens patriae jurisdiction, only in those circumstances where the Court forms an opinion that jurisdiction of the foreign country cannot be availed by the party concerned, due to lack of laws or incapability of having legal remedy, or if one party is deprived of availing legal remedy due to issues of domicile or residentiary rights. When an efficacious alternate remedy is available, the Court shall refrain from invoking its jurisdiction over the affairs of its citizens who are living outside its territorial jurisdiction," the Bench observed.
