Kerala High Court Weekly Round-Up: January 15 – January 21, 2024

Sabu Varghese v. Viju P. Varghese & Ors., 2024 LiveLaw (Ker) 42

Dr. Annie Mareena Issac V Employees State Insurance Corporation, 2024 LiveLaw (Ker) 43

XXX & Ors. v. State of Kerala & Connected case, 2024 LiveLaw (Ker) 44

Lekshmi M V Sudhamony Amma, 2024 LiveLaw (Ker) 45

Anwer Hussain T v. Union Territory of Lakshadweep, 2024 LiveLaw (Ker) 46

Neyan Veettil Behsana V Local Registrar For Births And Deaths & Marriages, 2024 LiveLaw (Ker) 47

K Sekharan v. State of Kerala & Ors., 2024 LiveLaw (Ker) 48

Sasidharan A v Vijayan Unnithan, 2024 LiveLaw (Ker) 49

Renjith Raj v State, Represented By CI of Police, 2024 LiveLaw (Ker) 50

Azharudheen v. State of Kerala, 2024 LiveLaw (Ker) 52

Sivaprakashan v State of Kerala, 2024 LiveLaw (Ker) 53

T. Rema & Ors. v. AK Radhamani & Anr., 2024 LiveLaw (Ker) 54

Mohammed Manath Ibrahim v Thrikkakara Municipality, 2024 LiveLaw (Ker) 55

Joseph A U v Princy P J, 2024 LiveLaw (Ker) 56

C. Surendranath v State of Kerala, 2024 LiveLaw (Ker) 57

Karuvangadan Mukthar @ Muthu v The Superintendent, 2024 LiveLaw (Ker) 58

Judgments/Orders This Week

Variations In Evidence Due To Normal Errors Of Observation Or Memory Are Not Material Discrepancies Touching Core Of Case: Kerala High Court

Case Title: Thapas Berman v. State of Kerala

Citation: 2024 LiveLaw (Ker) 39

The Kerala High Court held that variations in the evidence only due to normal errors of observation and memory due to the lapse of time will always be there and the same cannot be accepted as material discrepancies touching the core of the case.

A division bench of Justice P B Suresh Kumar and Justice Johnson John was hearing the case.

Kerala High Court Quashes False Sexual Assault & Rape Case Filed By Minor Girl Against Father For Objecting To Her Relationship

Case title: XXX v State of Kerala

Citation: 2024 LiveLaw (Ker) 41

The Kerala High Court quashed a sexual assault and rape complaint filed by a minor daughter under various provisions of the IPC & POCSO Act against her father on finding that it was a false complaint.

The Court found that the daughter had raised false allegations against her father since he objected to her relationship with a boy.

Justice Gopinath P quashed the criminal proceedings against the father by relying upon the mother's affidavit and a report submitted by the Victim Rights Centre that it was a false complaint.

Absence After Expiry Of Authorised Leave Is 'Non-Duty' For All Purposes Other Than Pension: Kerala HC Upholds Order Setting Aside Promotion

Case Title: Sabu Varghese v. Viju P. Varghese & Ors.

Citation: 2024 LiveLaw (Ker) 42

The Kerala High Court upheld a Single Bench order that set aside the promotion of an employee due to a break in his service, after the expiry of his authorized leave, which was treated as unauthorized and non-duty for all purposes other than pension.

Perusing Fundamental Rule 17A and Central Civil Services (Pension) Rule 27, the Division Bench comprising Justice Amit Rawal and Justice C.S. Sudha, observed, "On juxtaposing of the aforementioned Rules, interruption or break in service has been clarified in Rule 27 in respect of employees who had remained absent after the expiry of authorized leave whereas Fundamental Rule 17A deals with absence out of nowhere and that absence has also been considered to be a break and interruption".

Transfer Of Working Women Should Be Considered Sympathetically, They Play Major Role In Taking Care Of Children, Aged Parents: Kerala HC

Case Title: Dr. Annie Mareena Issac V Employees State Insurance Corporation

Citation: 2024 LiveLaw (Ker) 43

The Kerala High Court has asked employers to exhibit open-mindedness and empathy when issuing transfer orders to 'working women'.

A Division Bench comprising Justice A Muhamed Mustaque and Justice Shoba Annamma Eapen observed that working women play major roles in taking care of their children and aged parents and thus, they may find it difficult to maintain a work-life balance in an unfamiliar environment.

Kerala High Court Directs IG (Registrations) To Consider Validity Of NGO's Registration For Making Derogatory Remarks Against Transgender Community

Case Title: XXX & Ors. v. State of Kerala & Connected case

Citation: 2024 LiveLaw (Ker) 44

The Kerala High Court directed the Inspector General of Registration, to consider the validity of the registration of an NGO 'Youth Enrichment Society' accused of making remarks with the intent to cause harm against the transgender community

The plea was before a bench of Justice Devan Ramachandran. The petitioners had filed the writ petition seeking cancellation of registration of the 6th respondent NGO for making remarks against the transgender community with the intent to cause them harm.

[Indian Succession Act] Can Courts Grant/Revoke Probates Or Letters Of Administration Without Govt Notificiation? Kerala HC Refers To Division Bench

Case title: Lekshmi M V Sudhamony Amma

Citation: 2024 LiveLaw (Ker) 45

The Kerala High Court has referred the decision of a single judge in Natarajan T.K. v. T.K.Raman Achari (2023) for the consideration of a Division Bench in which it was held that Courts in Kerala have no jurisdiction for granting and revoking probates or letters of administration unless there is a notification issued by the State Government.

Justice Sathish Ninan by relying upon Sections 57 and 264 of the Indian Succession Act, 1925 observed that no notification was needed for granting and revoking probates or letters of administration when the wills and codicils were made on or after 01.01.1927 by a Hindu, Buddhist, Sikh, and Jain.

Supposed To Guard Nation & Protect Integrity Of Its Citizens: Kerala High Court Denies Bail To Soldier Accused In POCSO Case

Case Title: Anwer Hussain T v. Union Territory of Lakshadweep

Citation: 2024 LiveLaw (Ker) 46

In a matter regarding POCSO allegations against a soldier under Sections 12, 11(iv), 18, 6 and 5b(iv) of the Protection of Children from Sexual Offences Act, 2012, the Kerala High Court has observed that “allegations [against a soldier] has to be viewed more seriously. He is supposed to guard the nation, and the dignity and integrity of its citizens.”

A single bench of Justice Sophy Thomas accordingly denied the soldier/petitioner's bail plea.

Muslim Woman Need Not Move Court To Record 'Talaq', Marriage Registration Officer Can Record It : Kerala High Court

Case title: Neyan Veettil Behsana V Local Registrar For Births And Deaths & Marriages

Citation: 2024 LiveLaw (Ker) 47

The Kerala High Court has observed that there is a lacuna in the Kerala Registration of Marriages (Common) Rules, 2008 since it does not provide a provision to register divorce when divorce was obtained under personal law.

A divorced Muslim woman had approached the Court seeking to 'record the fact of divorce' in the Marriage Register after her marriage was dissolved on pronouncing Talaq.

Justice P.V. Kunhikrishnan observed that the authority which has the power to register the marriage will also have the authority to record the fact of divorce. It further observed that a divorced wife who has registered marriage under the 2008 Rules on obtaining a divorce under personal law shall not be insisted for obtaining an order from the Court.

Quarrying Can't Take Place On Land Assigned Under Kerala Land Assignment Act: HC Orders Interim Stay On Quarrying Near Neyyar Wildlife Sanctuary

Case Title: K Sekharan v. State of Kerala & Ors.

Citation: 2024 LiveLaw (Ker) 48

The Kerala High Court has clarified that no quarrying activities can be done on lands assigned under the Kerala Land Assignment Act.

A single bench of Justice Viju Abraham made these observations in a plea challenging quarrying activities near Neyyar Wildlife Sanctuary undertaken by the respondent.

[S. 138 NI Act] Trial Court's Reasonably Formed Opinion Regarding Insufficient Funds Cannot Be Interdicted By Appellate Court: Kerala HC

Case title: Sasidharan A v Vijayan Unnithan

Citation: 2024 LiveLaw (Ker) 49

The Kerala High Court has upheld the acquittal order issued by the Trial Court under Section 138 of the Negotiable Instruments Act on finding that there was no evidence to prove that the cheque was dishonoured for want of sufficient funds.

Justice P.G. Ajithkumar observed that the Appellate Court will not interfere with the order of the Trial Court if it has been reasonably formed.

Death By Negligence | Trial Court Must Apply Mind To Determine Whether Charges U/S 304A IPC Can Be Added In Cases Of Motor Vehicle Accidents

Case title: Renjith Raj v State, Represented By CI of Police

Citation: 2024 LiveLaw (Ker) 50

The Kerala High Court has held that when trial courts frame charges in deaths involving motor vehicle accidents, they should decide whether an alternative charge for an offence under Section 304A IPC is also to be added in addition to the charge under Section 304 IPC.

Justice P.G. Ajithkumar relying upon Apex Court decisions, stated that no prejudice was caused to the appellant and that a mere defect in the language, narration or form of charges would not render the conviction unsustainable.

Furthermore, Justice Ajithkumar stated that when the Courts were framing charges in deaths involving motor vehicle accidents, it should decide whether an alternative charge for an offence under Section 304A IPC is also to be added in addition to the charge under Section 304 IPC.

[NDPS Act] Oral Application Sufficient For Statutory Bail When IO Fails To File Final Report On Time, Extension Not Sought: Kerala High Court

Case Title: Azharudheen v. State of Kerala

Citation: 2024 LiveLaw (Ker) 52

In a matter before the Kerala High Court, a single judge bench of Justice CS Dias held that an oral application made by the petitioner, who was accused under the NDPS Act ("Act") would be sufficient to release him on statutory bail due to the failure of the Investigation Officer to file the final report on time.

If Land Acquired For Public Purpose By Paying Compensation, Delay In Utilisation Doesn't Entitle Owner To Seek Re-Conveyance: Kerala High Court

Case title: Sivaprakashan v State of Kerala

Citation: 2024 LiveLaw (Ker) 53

The Kerala High Court has made it clear that once a land is acquired by the State under the Land Acquisition Act for public purpose and compensation is paid, the landowner has no right to seek re-conveyance of the property citing delay in utilisation of such land.

Justice P V Kunhikrishnan observed,“Admittedly, the land is going to be used for the purpose for which it is acquired. Simply because there is a delay in using the land for the purpose for which it is acquired, the acquisition proceedings can not be set aside. In such a situation, the refusal to reconvey the property is not illegal.”

Prolonged Cohabitation Will Not Acquire Character Of Valid Marriage During Subsistence Of Another Marriage By Either Party: Kerala High Court

Case Title: T. Rema & Ors. v. AK Radhamani & Anr.

Citation: 2024 LiveLaw (Ker) 54

The Kerala High Court observed that while it is well settled that continuous cohabitation for several years may raise the presumption of marriage, it will not acquire the character of a valid marriage, if it is during the subsistence of another marriage by either party.

The matter came up before the division bench comprising Justice Anu Sivaraman and Justice C Pratheep Kumar.

Primary Duty Of Municipality To Deal With Municipal Waste Even If It Was Dumped Illegally In Private Property: Kerala High Court

Case title: Mohammed Manath Ibrahim v Thrikkakara Municipality

Citation: 2024 LiveLaw (Ker) 55

The Kerala High Court has held that the municipality has the primary responsibility to deal with the municipal waste even if it was illegally dumped on private property.

“It is the primary duty of the Municipality to deal with municipal waste. The fact that such municipal waste has been illegally dumped in private property (here the property of the Kochi Metro) cannot absolve the Municipality from the liability of removing the waste for proper treatment as is done in the case of other municipal waste being collected and processed by the Municipality, “stated Justice Gopinath P.

Special Marriage Act | Even Parties To A Void Marriage Can Approach Family Court For Redressal Of Grievances: Kerala High Court

Case title: Joseph A U v Princy P J

Citation: 2024 LiveLaw (Ker) 56

The Kerala High Court on interpreting the provisions of the Family Courts Act, 1984 and Special Marriage Act, 1954 observed that a dispute between parties to a void marriage could be determined by a Family Court.

The Division Bench comprising Justice Anu Sivaraman and Justice C.Pratheep Kumar observed that even parties to a void marriage can approach the Family Court for the redressal of their grievances.

“Therefore, from a conjoined reading of Section 24 (1)(i) of Special Marriage Act and Explanation (a) to Section 7(1) of the Family Courts Act, it is evident that a marriage which is void, as defined under Section 24 of the Special Marriage Act, will remain valid for all practical purposes, unless it is annulled in a suit or proceedings before the Family Court. In other words, from the above provisions, it can also be safely concluded that even the parties to a void marriage can approach the Family Court for redressing their grievance and as such this point is liable to be answered in the negative.”

Action Merely Contrary To Departmental Norms Not 'Criminal Misconduct' Under PC Act, 'Dishonest Intention' Must: Kerala High Court

Case title: C. Surendranath v State of Kerala

Citation: 2024 LiveLaw (Ker) 57

The Kerala High Court has held that 'dishonest intention' is the crux for constituting an offence under Section 13 (1)(d) of the Prevention of Corruption Act for proving criminal misconduct by public servants.

“Dishonest intention is sine qua non to attract the offence punishable under Section 13(1)(d) of the Act. Mere conduct and action of the accused contrary to rules and departmental norms would not amount to criminal misconduct by a public servant”, stated Justice K Babu.

Kerala High Court Permits Murder Convict To Join LLB Course Despite Objection By College

Case title: Karuvangadan Mukthar @ Muthu v The Superintendent

Citation: 2024 LiveLaw (Ker) 58

The Kerala High Court has permitted a murder convict to pursue a three-year LLB Course in online mode, despite objections from the college where he has secured a seat. It stated that education would enable the convict to reform and rehabilitate back into society.

Justice Bechu Kurian Thomas observed that the stance taken by the college in opposing the admission of a convict to pursue his education would not be tolerated.

“The education of a convict can bring hope and aspirations for a better life in the future. Thus, when the prisoner expresses his willingness to undergo a course of study and has even gained admission after a competitive examination, the objection raised by the college cannot be countenanced and on the other hand, is to be deprecated.”

Other Significant Developments This Week

[K-FON Project] Kerala High Court Grants Time For State Govt To File Counter In Plea By Oppn MLA VD Satheeshan Seeking CBI Probe

Case number: WPC No. 1479/2024

Case Title: V D Satheesan M L A v State of Kerala & Ors

The Kerala High Court today granted time for the state to file counter in the plea filed by Leader of the Opposition of the Kerala Legislative Assembly and MLA V D Satheeshan seeking a probe by the Central Investigating Agency (CBI) into the conception and execution of the Kerala Fibre Optic Network Project Ltd. (K-FON).

Kerala High Court Allows Family To Continue Conventional Practise Of Offering Cooked Meat To Goddess In Private Family Temple

Case title: Pushpalatha P v District Collector & Ors

Case number: WP(C) 1702/2024

The Kerala High Court today allowed a plea moved by the eldest member of a family seeking permission to offer a cooked rooster to their goddess inside the family's private temple within the premises of their ancestral house.

Justice Devan Ramachandran observed that “Until which time, though this Court is not interdicting Ext.P5, conventional offering of cooked meat will not stand restricted”. Ext. P5 order was issued by the Revenue Divisional Officer (RDO) prohibiting this ritual.

Kerala High Court Orders Fire Safety Audit At Hotels & Other Establishments In Sabarimala

Case title: Suo Moto v State of Kerala

Case number: SSCR NO.7 OF 2024

The Kerala High Court has ordered the Special Officer, Fire and Rescue Services to conduct fire audit at hotels and other establishments in Sabarimala through concerned officials. This order has been issued pursuant to a fire incident that occurred on January 6, 2024, in a hotel due to leakage of a gas cylinder at Sannidhanam in Sabarimala.

Should We Be So Intolerant? Kerala High Court On Plea Against 'Antony' Movie For Depicting Gun Hidden In Bible

Case title: Joji Varghese V State Of Kerala

Case number: WP(C) 42896/ 2023

The Kerala High Court agreed to view an allegedly objectionable part from the Malayalam Movie 'Antony'. The plea was moved since a scene in the movie depicts a gun hidden inside a Bible, which allegedly hurt religious sentiments of the Christian community.

“if you want you can produce the video, I will see…the petitioner seeks additional time to produce additional evidence”, Justice Devan Ramachandran observed.

Kerala High Court Suo Moto Impleads Union Govt On Transgender Person's Plea For Reservation In Education & Public Employment

Case title: Aneera Kabeer C v State Of Kerala

Case number: WP(C) 1970/ 2024

The Kerala High Court today suo moto impleaded the Union Government in a plea moved by a transgender person seeking reservation for the community in education and public employment.

“We can give reservation for caste, creed, community, colour, education, language, but you can't give reservation to an individual just because he or she is not perceived to be the in the mainstream,” Justice Devan Ramachandran orally remarked during the hearing.

Shawarma Death Case: Kerala High Court Says 'Best Before' Date Vital To Prevent Mishaps, Inspections Necessary To Keep Manufacturers In Check

Case Title: Prasanna E.V. v. State of Kerala & Ors.

Case Number: W.P. (C) No. 19941 of 2023

The Kerala High Court today observed that regular inspections of eateries and food manufacturers is necessary to prevent any untoward incident from consumption of outside food articles.

The Court appreciated the commendable efforts taken by the authorities and stated that constant monitoring should continue. “The inspections have to be done consistently and without fail because any relaxation would generally give an impression to the manufacturers that the action would be lax.”

Company Owned By Kerala CM's Daughter Being Probed Under Companies Act, Centre Informs Kerala High Court

Case Title: Shone George v. Ministry of Corporate Affairs & Ors.

Case Number: WP (C) No. 42092 of 2023

The Ministry of Corporate Affairs informed the Kerala High Court that the company owned by the daughter of Kerala Chief Minister Pinarayi Vijayan is under investigation.

The counsel appearing for the Central Government orally told the Court that an order has been issued under Section 210 of the Companies Act 2013 to in to investigate the affairs of Exalogic Solutions Ltd, an IT company owned by Veena Thaikkandiyil.

Taking note of the submission, a single bench of Justice Devan Ramachandran directed that a copy of the order initiating inquiry against the company must be produced before the Court by January 19.

Kerala High Court Grants Interim Relief To Bharatiya Vidya Bhavan Thrissur, Asks State Electricity Board To Not Disconnect Electricity Connection

Case Title: Bharatiya Vidya Bhavan Thrissur Kendra and Anr. v. The Kerala State Electricity Board and Anr.

Case Number: WP (C) 1802 of 2024

The Kerala High Court has directed the State Electricity Board not to disconnect the electricity connection to the petitioner-school Bharatiya Vidya Bhavan Thrissur Kendra, on the condition that the petitioners pay the amount claimed by the respondent Board, barring interest.

A single-judge bench of Justice N Nagaresh was hearing the plea.

Kerala High Court Seeks Affidavit Raising Specific Grievances In 'Thee Chamundi Theyyam' Matter Involving Alleged Endangerment Of Children

Case Title: Dhisha v. Union of India & Ors.

Case Number: WP (C) No. 15800 of 2023

In the theyyam matter before the Kerala High Court, a division bench comprising of Chief Justice A J Desai and Justice VG Arun directed the petitioner to file an additional affidavit cogently and precisely raising the specific grievances in the matter.

In the plea filed by the NGO Dhisha, it had been alleged that the ritualistic dance performance, also known as 'Ottakolam Theyyam', which is held by the Chirakkal Kovilakam and Chirakkal Temple Trust in connection with their annual function, involves the children being thrown to the embers a minimum of 101 times, and was thus too dangerous for children to participate in.

'No Citizen In This Nation Is Lesser Than The Other': Kerala High Court To Police Officers In Matter Involving Use Of Abusive Vocatives By Cop

Case title: Mahesh v Anilkant

Case number: Contempt Case(C) No. 869 OF 2023(S) In WP(C) 11880/2021

The Kerala High Court today directed the State Police Chief to take steps to ensure that police officers behave in a sophisticated and refined manner to every citizen. 'No citizen in this nation is lesser than the other,' it said.

The matter involved abusive vocatives used by a police officer against an advocate at Alathur Police Station in Palakkad district

State Police Chief Shaik Darvesh Saheb who appeared before the Court online informed the Court that steps are being taken to transform the police department. He assured the Court that an additional circular would be issued containing a stern warning to all officers to ensure that no abusive vocatives would be used against citizens.

On interaction with the State Police Chief, Justice Devan Ramachandran observed thus:“The State Police Chief asserted that the intent of this Court cannot be violated and that no officer can be allowed to act in a manner contrary to it including by the use of prohibited vocatives like 'eda', 'podi' and 'nee'….He added that he would also issue a further circular as a stern warning to every officer to ensure that no citizen is addressed in the manner as alleged in this incident."

Kerala High Court Seeks Clarification Over Disparity In Calculation Of Income Of Govt & Pvt Employees For Issuing Non-Creamy Layer Certificates

Case title: Rajith V v State of Kerala

Case number: WP(C) NO. 1727 OF 2024

The Kerala High Court has sought clarification from the State regarding the exclusion of the salary of government employees while calculating income for the issuance of 'Non-Creamy Layer Certificates' to obtain an OBC reservation for students belonging to the Socially and Economically Backward Classes (SEBC).

The Court sought such clarification upon noting that the salary of private employees was not excluded from the aforesaid calculation.

Justice Devan Ramachandran stated thus:

“Classification of employees between Government Department and the Private Sector does not appear to have any reasonable nexus to any objective sought to be achieved, namely the grant of 'Creamy Layer Certificates'. Whether the parents are employed in the Government Department or Private Sector, 'Creamy Layer' is a matter of fact, which cannot be diluted, going by the various declarations of law by the Honourable Supreme Court.”

'Stigmatic': Plea In Kerala High Court Seeks Removal Of "Fictitious" Rape Scenes From Dileep Starrer Inspired By 'Thankamani' Incident

Case Title: Biju VR v. Central Board of Film Certification and Ors.

Case Number: WP (C) No. 2199 of 2024

A resident of the Thankamani village in Idukki district has moved the Kerala High Court seeking removal of alleged fictitious scenes from upcoming Malayalam film 'Thankamani'.

The Dileep-starrer is based on a real-life incident that occurred in Thankamany in October 1986. The plea challenges "incorrect and derogatory portrayal" of the incident, stating that the teaser hints at incidents of men in the village hiding in the agricultural lands and the women of the village being raped by the Policemen. Petitioner argues that such incidents never happened and there are no official records or documents of such crimes.