Kerala High Court Weekly Round-Up: May 15 To May 21

Nominal Index [Citation: 2023 LiveLaw (Ker) 218-224] 

Mahesh Thampi v. The Deputy Director of Education & Ors. 2023 LiveLaw (Ker) 218

Anoop K.A V. Biju Prabhakar 2023 LiveLaw (Ker) 219

Sanjeev S. v. State of Kerala 2023 LiveLaw (Ker) 220

Dhanya Martin v. State of Kerala & Anr. and other connected cases 2023 LiveLaw (Ker) 221

Jolly Vaerghese v. State of Kerala 2023 LiveLaw (Ker) 222

Jayaraj R. v. Kavya G. Nair 2023 LiveLaw (Ker) 223

 Sreedevi S. & Ors. v. The Selection Committee, Chennithala, Thripperumthara Grama Panchayat & Ors. 2023 LiveLaw (Ker) 224

Judgments/Order This Week 

[Kerala Education Rules] Aided School Not Bound By Procedure For Dismissal Where Teacher Is Convicted On Criminal Charge: Kerala High Court

Case Title: Mahesh Thampi v. The Deputy Director of Education & Ors.

Citation: 2023 LiveLaw (Ker) 218

The Kerala High Court recently held that a teacher in an aided school governed by the Kerala Education Act (hereinafter, 'the Act') and the Kerala Education Rules (hereinafter, 'the KER'), can be dismissed from service on the basis of conviction in a criminal case, without following the procedures prescribed under Rules 65, 74 and 75 of Chapter XIVA KER.

The Division Bench comprising Justice P.B. Sureshkumar and Justice Sophy Thomas referred to Rule 77A of KER which stipulates that where a penalty is imposed on a teacher on the ground of conduct which had led to his conviction on a criminal charge, the authority taking action under the Rule, may consider the circumstances of the case and pass such orders thereon as it deems fit. Explaining its scope the bench observed:

"...where a penalty is imposed on a teacher on the ground of conduct which had led to his conviction on a criminal charge, the authority taking action under the Rule, may consider the circumstances of the case and pass such orders thereon as it deems fit. In other words, where a penalty is imposed on a teacher on the ground of his conduct which had led to his conviction on a criminal charge, it is not necessary to follow the procedure prescribed in Rule 75 and the competent authority is empowered to pass appropriate orders in such cases as it deems fit."

Vehicles With Multi-Colour LED, Neon Lights Can't Be Treated As Compliant With MV Act For Grant Of Fitness Certificate: Kerala High Court

Case Title: Anoop K.A V. Biju Prabhakar

Citation: 2023 LiveLaw (Ker) 219

The Kerala High Court recently held that vehicles that install additional LED, laser, neon lights or flash lights cannot be granted certificate of fitness as they do not comply with the provisions of the Motor Vehicles Act. The Court observed that installation of such additional lights could 'dazzle' the drivers of approaching vehicles and could pose serious threats to safety of other road users.

The Court also held that a fine of Rs.5,000/- per alteration must be imposed on vehicles installing lighting, light-signalling devices and retro-reflectors in violation of AIS-008.

A Single Judge Bench of Justice Anil K. Narendran observed, 

"...vehicles which are fitted with after-market multi-coloured LED/laser/neon lights, flash lights, as seen in the screenshots reproduced hereinbefore, which are being used in a public place, openly flouting the safety standards prescribed in AIS-008, which are capable of dazzling the drivers of the oncoming vehicles, pedestrians and other road users, thereby posing a potential threat to the safety of other road users, have to be dealt with in an appropriate manner, strictly in accordance with the law. In addition to the penal consequences provided in the statutory provisions referred to hereinbefore, the owner of the vehicle has to be imposed with a fine of Rs.5,000/- per such alteration; i.e, Rs.5,000/- for each after-market multi-coloured LED/laser/neon lights, flash lights. Such goods vehicles cannot be treated as vehicles which comply with the provisions of the Motor Vehicles Act and the Rules made thereunder, for the purpose of grant of certificate of fitness.”

S.153 IPC | Expression 'Malignantly' Or 'Wantonly' Giving Provocation With Intent To Cause Riot Indicates Higher Degree Of Malice: Kerala High Court

Case Title: Sanjeev S. v. State of Kerala

Citation: 2023 LiveLaw (Ker) 220

The Kerala High Court recently explained the scope and extent of Section 153 of the Indian Penal Code, 1860 which refers to the offence done malignantly or wantonly to give provocation to the extent of causing a riot.

The Single Judge Bench of Justice Bechu Kurian Thomas elucidated that the presence of the two expressions, 'malignantly' or 'wantonly' in the provision indicates that there ought to be a higher degree of malice or evil that is projected or evident in the act alleged.

[Special Marriage Act] Registering Authority Cannot Refuse Online Solemnization Of Marriage: Kerala High Court

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.

Illicit Sale Of Liquor Should Be 'In Praesenti' To Attract Offence Under Kerala Abkari Act: High Court

Case Title: Jolly Vaerghese v. State of Kerala

Citation: 2023 LiveLaw (Ker) 222

The Kerala High Court held that the sale of liquor ought to be made in praesenti in order to attract the offence under Section 55(i) of the Kerala Abkari Act (hereinafter, 'the Act').

Section 55(i) of the Act states that a person who sells or stores for sales liquor or any intoxicating drug in contravention of the Act or any Rule or Order made under the Act shall be punished.

Justice V.G. Arun, while considering an anticipatory bail application of the petitioner-accused who had been found in possession of 2.75 litres of Indian Made Foreign Liquor, observed, "There is prima facie merit in the contention that mere possession of the Indian Made Foreign Liquour (IMFL), that too within permissible limits, cannot lead to a presumption that the liquor was intended for sale. The sale should be in presenti, for the offence under Section 55(i) to be attracted."

Continued Mutual Consent Of Both Parties Necessary For Granting Divorce Decree U/S 13B Hindu Marriage Act: Kerala High Court

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."

Selection Process Vitiated By Bias: Kerala High Court Quashes List For Appointment Of Anganwadi Workers

Case Title: Sreedevi S. & Ors. v. The Selection Committee, Chennithala, Thripperumthara Grama Panchayat & Ors.

Citation: 2023 LiveLaw (Ker) 224

The Kerala High Court recently quashed the selection list for appointment of Anganwadi workers in Anganwadi Centre Nos.81, 84, 96 and 155 of Chennithala Thriperumthura Grama Panchayat under the Integrated Child Development Services (ICDS) Mavelikkara Project.

Justice N. Nagaresh, on finding the selection process vitiated by bias, quashed the same and directed the respondents- Director and Officer of the Women and Child Development, the Child Development Project Officer, and the Chennithala Thriperumthura Grama Panchayat- to constitute a fresh Selection Committee and conduct the selection process afresh, considering the candidature of those who had already participated in the process, within 2 months.

Other Significant Developments This Week 

Plea In Kerala High Court Challenges Centre's Order Blocking Open Source Messaging Apps 'Briar', 'Element'

Case Title: Praveen Arimbrathodiyil & Anr. v. Union of India & Ors.

A plea has been filed in the Kerala High Court challenging the blocking of Free and Open Source Software (FOSS) applications— 'Element' and 'Briar', by the Central Government under Section 69A of the Information Technology Act, 2000 (hereinafter, 'IT Act, 2000').

As per media reports, on May 1, 2023, Centre blocked fourteen mobile messaging applications under Section 69A of the IT Act on grounds of such applications allegedly being used for communication between 'bad actors' in Jammu and Kashmir, including the two widely used FOSS applications named 'Element' and 'Briar'.

The Single Judge Bench of Justice Shoba Annamma Eapen issued notice to Ministry of Information and Broadcasting and the Ministry of Electronics and Information Technology.

Plea In Kerala High Court Seeks Ban On Children Performing 'Thee Chamundi Theyyam' Ritual Dance

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

A petition in the nature of a Public Interest Litigation (PIL) has been filed in the Kerala High Court seeking a ban on the participation of children in the performance of ‘Thee Chamundi Theyyam’, a ritualistic dance in north Malabar region of Kerala.

In the plea filed by NGO Dhisha, it has 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.

When the matter came up before the Division Bench comprising Justice Anil K. Narendran and Justice Kauser Edappagath on Tuesday, the Court asked the petitioner to file an application to implead the Malabar Devaswom Board and the trustees of the temple under which the dance performance was conducted, as additional respondents.

Kerala High Court Constitutes Expert Committee To Address Issue Of Human-Animal Conflicts, Restoration Of Wildlife Corridors

Case Title: In Re Bruno v. Union of India & Ors.

The Kerala High Court on Wednesday constituted an Expert Committee to aid and advise regarding the short-term and long-term measures to address the problem of human-wildlife conflict, restoration of wildlife habitats, restoration of wildlife corridors and matters incidental to it.

The Division Bench comprising Justice A.K. Jayasankaran Nambiar and Justice Gopinath P. actualized its suggestion made while hearing the case pertaining to the translocation of the rogue elephant 'Arikomban' to the Parambikulam Tiger Reserve from Chinnakanal.

Lawyer Moves Kerala High Court Seeking ₹1 Crore Compensation For Family Of Kollam Doctor Stabbed To Death By Man In Custody During Checkup

Case Title: Adv. Manoj Rajagopal v. State of Kerala & Ors

A lawyer has approached the Kerala High Court seeking Rs. 1 Crore compensation for the bereaved family members of the 23 years old house surgeon, Dr. Vandana Das, who was brutally killed by an injured man brought to the government hospital in a police jeep, in Kottarakkara, Kollam.

The incident occurred during the wee hours of the morning on May 10, 2023, when the house surgeon was on duty. She was stabbed multiple times by Sandeep, a school teacher, using dressing room scissors. The attacker was brought to the Kottarakkara Taluk Hospital by the police for treatment of his injuries.

The matter is before the Division Bench comprising Justice P.B. Suresh Kumar and Justice P.G. Ajithkumar. The plea avers that the tragedy was a result of systemic failure and yet, the Government has not announced any compensation to the bereaved family.

"Dr. Vandana Das was the only daughter and her death cannot be compensated in terms of money. The doctor's community across the State has been frequently demanding the Government to provide necessary security to doctors in the Hospitals. The physical attack towards doctors has been increasing day by day," the plea states.

'Social & Medical Complications Likely': Kerala High Court Allows Medical Termination Of Pregnancy Of 15 Year Old Girl Impregnated By Brother

Case Title: XXX v Union of India

The Kerala High Court on Friday allowed the termination of pregnancy of a 15 year old minor girl who was impregnated by her brother. The petition was filed by the father on behalf of the minor daughter who was 7 months pregnant.

A single bench of Justice Ziyad Rahman observed that:

“Considering the fact, the child is born from his own sibling, various social and medical complications are likely to arise. In such circumstances, the permission as sought for by the petitioner to terminate the pregnancy is inevitable.”