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Kerala High Court Weekly Round-Up:...

Kerala High Court Weekly Round-Up: March 11 - March 17, 2024

Rubayya Tasneem

18 March 2024 11:45 AM GMT

Not Feasible To Expect Documentary Evidence In Family Matters, Court Must Be Prudent: Kerala High Court Reiterates

Citation: 2024 LiveLaw (Ker) 165

Case Title: Isahack v. Mini and ors.

The Kerala High Court has reiterated that it is not feasible to have documentary evidence in a transaction between spouses and in-laws, in a plea challenging the maintainability of a petition before the family court.

A division bench of Justice Anu Sivaraman and Justice C Pratheep Kumar observed that “in a transaction between spouses and in-laws, especially when it occurred during the period in which they were in cordial terms and most probably at the time of marriage or immediately before the marriage, usually there will be no documents to prove the same”.

The petitioner had challenged an original petition filed by his daughter (1st respondent) on the ground that the Family Court had no jurisdiction to entertain the matter. The respondent had filed a plea before the family court to assign the scheduled property in her favor in lieu of the money and gold belonging to her that was entrusted to the petitioner.

Amusement Parks Must Be Established & Operated In Strict Compliance With Law & Safety Requirements: Kerala High Court

Citation: 2024 LiveLaw (Ker) 166

Case title: Sreejith M B V State of Kerala

The Kerala High Court directed the Aluva Municipality to provide an undertaking before the Court that the temporary amusement park at Aluva Shivaratri Manappuram shall be established and operated only in strict compliance with the law.

“There can be little doubt that any Amusement Park - be that temporary or permanent - will have to adhere to every requirement in law, particularly safety criteria, because if any mishap is to happen, it would have a cataclysmic effect, especially when it is common knowledge that large number of devotees and others would throng the festival.” stated Justice Devan Ramachandran

The petitioner has approached the High Court seeking Aluva Municipality to prohibit the operation of a temporary Amusement Park at Aluva Shivaratri Manappuram without required clearances, permissions, and approvals from competent officials.

"Biggest Menace": Kerala High Court Says Time-Bound Case Dispoal Not Taking Place Due To Unnecessary Adjournments Sought By Lawyers

Citation: 2024 LiveLaw (Ker) 167

Case title: Gokul Raj v State of Kerala

The Kerala High Court has considered the extent to which an advocate has the right to seek an adjournment of trial at his or her convenience. Justice A. Badharudeen stated that due to unnecessary adjournment of cases, justice had been denied to real aggrieved persons. It further stated that time-bound disposal of cases was not taking place due to unnecessary adjournments.

“Even though lawyers are duty bound to co-operate with the Court in the matter of disposal and that is what is intended by co-operation between the Bar and the Bench in letter and spirit, time bound disposal of cases could not be materialized because of unnecessary adjournments. This is the biggest menace and the same is the reason for huge pendency of matters before all courts”, stated the Court.

The Court added that judges were unable to distinguish between genuine requests made by lawyers who were really suffering from illnesses since some lawyers use illness as a ground to seek unnecessary adjournments even after the case was posted for final hearing.

[Motor Vehicles Act] Must Undergo Mandatory Driving Test If Application To Renew License Is Made More Than One Year After Expiry: Kerala High Court

Citation: 2024 LiveLaw (Ker) 168

Case title: Sebastian Jacob v The Transport Commissioner

The Kerala High Court stated that a person who wants to renew his driving licence after one year of its expiry has to undergo a mandatory test of competence to drive under Section 15 of the Motor Vehicles Act.

The Court reasoned that the Motor Vehicles Act underwent comprehensive amendments with effect from November 2019, adding that Section 15 (3) was amended to include the test of competency to drive for renewal of a driving licence if it was submitted after one year of expiry of the licence.

“Indeed there is certain incongruity between Clause (a)(i) to the proviso to Section 9(3) and the 2nd proviso to Section 15(4). But, as far as renewal of Driving Licences is concerned, we have to hold that if application for renewal of Driving Licence is made after one year of the period of previous licence, one has to undergo the test of competence to drive”, stated the Court.

The Court further stated two reasons for the petitioner to undergo the test of competence to drive. The first reason was that he applied for renewal of his driving license under Section 15 of the Act, so he should satisfy the requirement under proviso to Section 15 (4) which mandates a test of competence to drive after the expiry of one year of previous driving licence. The second reason was that as per the 2019 amendment, the legislature intended to include a test of competence to drive for renewal of the driving licence.

[Thrissur Street Vendors Eviction] Kerala High Courts Directs Thrissur Corporation to Defer From Further Action Till Statutory Committee Consider The Matter

Case Citation: 2024 LiveLaw (Ker) 169

Case Title: Shamnad N and ors. v. The Corporation of Thrissur Through Secretary and anr.

The Kerala High Court has closed a plea challenging an eviction order of the Thrissur Corporation, holding that the petitioners would fall under the definition of 'street vendors' as per Section 2 of the Street Vendors Act 2014 and as such, they are empowered to make an application in writing to the committee constituted under Section 20.

The court stated that the petitioners may approach the committee constituted in the Thrissur Corporation for the redressal of their grievances.

“There is a specific grievance redressal mechanism under the Act. I will direct you to approach that mechanism, I will grant you some time” said Justice N Nagaresh.

Kerala High Court Strikes Down Nativity Clause In Medical Officers Quota For Admission To Post-Graduate Degrees As Unconstitutional

Case Citation: 2024 LiveLaw (Ker) 170

Case Title: Dr. M. Ganeshkumar v. State of Kerala and ors.

The Kerala High Court has held that a nativity clause which disqualifies non-resident medical officers from applying under the service quota of the Kerala Medical Officers' Admission to Post Graduate Courses Under Service Quota Act is invalid and unconstitutional, adding that the State cannot include any clause in the prospectus that prevents a medical officer under the Act from being considered under any service quota for admission to the Medical Post Graduate Degree Courses based on nativity alone.

“The nativity clause in the instant case discriminates between persons born in the state of Kerala and those born outside the State, and such discrimination falls foul of Article 15(1) of the Constitution” observed the Justice Mohammed Nias.

[S.83A Registration Act] Registration Authority Can Only Cancel Registered Documents In Cases Of False Impersonation: Kerala High Court

Citation: 2024 LiveLaw (Ker) 171

Case title: Mary Mohan Chacko V Inspector General

The Kerala High Court has stated that the Registration Act grants power to the registration authorities to a will to cancel a registered deed only in case of false impersonation.

On analysing Section 83A of the Registration Act, Justice Viju Abraham stated that registered documents could be cancelled by registration authorities only on grounds of false impersonation for executing a will.

“Going by Section 83A, a registered document could be cancelled by the registration authorities, ie., Inspector General of Registration only on finding that someone has falsely personated another, and in such assumed character presented, admitted the execution and got registered any document by a registering officer and the existence of such a document is detrimental to the interest of another person”, stated the Court

[Paul Muthoot Murder] Kerala High Court Upholds Accused's Conviction & Sentence For Inflicting Stab Injuries & Causing Death

Citation: 2024 LiveLaw (Ker) 172

Case title: SATHEESHKUMAR @ KARI SATHEESH v CBI

The Kerala High Court confirmed the conviction and sentences imposed upon the second accused -Satheeshkumar alias Kari Satheesh in the Paul Muthoot Murder case. The Court upheld his conviction under Section 302 IPC (punishment for murder) on the finding that it was the second accused who inflicted stab injuries causing the death of the deceased.

The second accused approached the High Court challenging his conviction and sentence imposed by the Trial Court. The Trial Court convicted and sentenced the second accused for offences punishable under Sections 144, 148 and 302 of the IPC and Sections 143, 147, 341, 323, 324, 326 and 506 Part II read with Section 149 IPC.

Where No Liability Fixed On Employee, Writ Jurisdiction Can Be Invoked To Seek Interest On Delayed Payment Of Retiral Benefits: Kerala High Court

Citation: 2024 LiveLaw (Ker) 173

Case title: P V Nandakumar v State of Kerala

The Kerala High Court has held that an employee can approach the High Court to claim interest on delayed payment of his Retirement benefits in cases where no adverse liability is fixed on him by the employer.

An employee of the Kerala Water Authority had approached the High Court in a writ appeal seeking interest on the delayed payment of his retirement benefits.

The Division Bench comprising Justice Anu Sivaraman and Justice C. Pratheep Kumar stated that the writ petition of the appellant should not have been rejected by directing the appellant to approach other authorities or to file a suit for realisation of interest on delayed payment through a Civil Court.

Creative Discretion & Liberty Has To Be Judged From Impact It Will Have On General Public Perception: Kerala High Court

Citation: 2024 LiveLaw (Ker) 174

Case title: NATAK v State of Kerala

The Kerala High Court stated that intolerance was anathema in matters relating to creativity and artistic expression when different persons have different perceptions of creativity. It further stated that creative discretion and liberties will have to be judged from the angle of impact that it will have on the general public.

The petitioner's theatre organisation has approached the Kerala High Court challenging the order of a Sub Divisional Magistrate directing them to alter the name of their drama called as 'Governorum Thoppiyum' on the misunderstanding that it was made as a reference to the Governor of Kerala.

[POCSO Act] Kerala HC Upholds Conviction Of Father Accused Of Sexually Assaulting 9-Yr-Old Daughter, Says Life-Sentence Imposed By Trial Court Not Disproportionate

Case Citation: 2024 LiveLaw (Ker) 175

Case Title: Stephen v. State of Kerala

The Kerala High Court in a recent POCSO matter rejected the appeal of an accused who was convicted for committing aggravated penetrative sexual assault on his nine-year-old daughter.

The Court also rejected the argument of the accused that the sentence imposed of 5 years under the POCSO Act, and 1 year under the IPC, was disproportionate to the gravity of the offence.

A division bench of Justices PB Suresh Kumar and Johnson John reasoned that the punishment imposed was not disproportionate to the gravity of the offence as the accused was the biological father of the 9-year-old victim.

Auction Purchasers Can't Object To Bank Offering One-Time Settlement Facility To Borrower Until Auction Sale Is Confirmed: Kerala High Court

Citation: 2024 LiveLaw (Ker) 176

Case title: Ajmal K V v Union Bank of India & Connected Case

The Kerala High Court has held that auction purchasers cannot say that banks cannot enter into a one-time settlement facility with the borrowers and cancel the auction sale until the sale was conformed in their favour.

Justice N Nagaresh stated that the auction purchasers do not acquire any right or interest over the mortgaged properties as long as the auction sale was confirmed and sale certificates were issued in their favour.

"It is true that the right of redemption is available to the borrowers will stand extinguished upon publication of notice of auction. However, that will not prevent the parties to a loan agreement from entering into a One Time Settlement. As long as the sale of the mortgaged assets is not confirmed in favour of the auction purchasers and as long as the Sale Certificates are not issued, the auction purchasers cannot be heard to contend that the Bank should not enter into a One Time Settlement with the borrowers"

[Cheque Dishonour] Complainant Failed To Prove Cheque Was Issued Against Legally Enforceable Debt: Kerala High Court Acquits Accused

Citation: 2024 LiveLaw (Ker) 177

Case Title: Rahiya v. Jasna and ors.

The Kerala High Court has held that a complainant under the Negotiable Instruments Act cannot rely on the presumption that the holder of a negotiable instrument has paid consideration for it when his claim is inconsistent.

It upheld the acquittal of the accused upon noting that the complainant in the present case had failed to prove that the cheque had been issued in lieu of legally enforceable debt when called upon to do so by the trial court, due to suspicious circumstances surrounding the consideration for the negotiable instrument.

“The accused could discharge her initial onus of proof showing that the existence of consideration was doubtful. The onus now shifted to the complainant, who is obliged to prove it as a matter of fact” observed Justice K Babu.

Any Person Regardless Of Gender & Age Can Be Accused Under POCSO Act: Kerala High Court Refuses To Quash Case Against Minor

Citation: 2024 LiveLaw (Ker) 178

Case Title: Suhaib @ Kullappi Kakka v. State of Kerala and ors.

The Kerala High Court has held that any person regardless of gender and age can be an accused under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

It thus refused to quash the proceedings pending under the Act against a minor. The bench of Justice PG Ajithkumar however clarified that the minor cannot be tried in an ordinary criminal court but can only be dealt under the provisions of the Juvenile Justice Act.

“'Penetrative sexual assault' and 'sexual assault' and its aggravated forms are defined in Sections 3, 5, 7 and 9 of the PoCSO Act. A reading of those definitions and the corresponding penal provisions indicate that any person irrespective of gender and age can be a person accused of such offences, of course, subject to the general exceptions in the IPC” observed .

Kerala High Court Permits Doctor Accused Of Abetting Girlfriend's Suicide By Asking For Exorbitant Dowry To Re-Join Post Graduate Studies

Citation: 2024 LiveLaw (Ker) 179

Case title: Dr.Ruwise E.A V The Principal Govt. Medical College

The Kerala High Court has permitted Dr Ruwais, who is booked for abetting the suicide of his girlfriend Dr Shahana by backing out of their marriage in demand of exorbitant dowry, to re-join his post-graduate studies.

Ruwais was charged with the offences under Section 306 IPC ('Abetment of Suicide') and Section 4 of the Dowry Prohibition Act ('Penalty for demanding dowry'). When the incident came to light, the Indian Medical Association (IMA) suspended Ruwais' medical license. He is currently released on bail.

[KAAPA] Look Out Notice Cannot Be Challenged Without Challenging The Detention Order: Kerala High Court

Case Citation: 2024 LiveLaw (Ker) 180

Case Title: Navas PK v. State of Kerala and ors.

The Kerala High Court recently held that a look out notice under the Kerala Anti-Social Activities Prevention Act, 2007 cannot be challenged without a challenge to the detention order

“We note that a look out notice is a part of consequential proceedings. It cannot be subject to challenge” observed Justice A Muhamed Mustaque and Justice Shoba Annamma Eapen.

A look out notice was issued against the petitioner under the Kerala Anti-Social Activities Prevention Act, 2007. The petitioner approached the High Court challenging the notice without challenging the detention order.

Wife Can't Unilaterally Withdraw Consent For Divorce After Settlement Was Arrived At During Mediation: Kerala HC Upholds Dissolution Of Marriage

Case Title: XXX v. XXX

Citation: 2024 LiveLaw (Ker) 181

The Kerala High Court upheld the judgement passed by the Family Court dissolving the marriage between the parties in a joint petition filed for divorce, even though the wife withdrew her consent for filing the divorce.

The Division Bench comprising Justice Anu Sivaraman and Justice C Pratheep Kumar stated that the Family Court dissolved the marriage by relying upon the decision in Benny v. Mini (2021) and the Bombay High Court judgment in Prakash Alumal Kalandari v. Jahnavi Prakash Kalandari (2011). The Court stated that one party cannot unilaterally withdraw from the terms of settlement entered through a mediation agreement after the other party has performed their part of the settlement terms.

Dismissing the appeal filed by the appellant, the Court stated that,

“Several litigations are pending between the parties before various courts including petition for divorce, custody of child and patrimony. All those cases were settled in mediation and the parties agreed to dissolve their marriage by mutual consent. Accordingly, the parties filed a joint petition for divorce, received part payment, disposed of the pending cases and thereafter at the final stage when the case was taken up for evidence to record the consent of the parties, the appellant withdrew her consent.”

[S.218 CrPC] Irregularity On Account Of Misjoinder Of Charges Doesn't Vitiate Conviction Unless Miscarriage Of Justice Proved: Kerala High Court

Citation: 2024 LiveLaw (Ker) 182

Case title: Santhosh @ Chandu v State

The Kerala High Court has upheld a conviction order passed by the Trial Court despite the misjoinder of charges, stating there was no failure of justice.

Justice P G Ajithkumar said no prejudice was caused to the accused and separate evidence was brought before the Court to prove separate charges. It stated that the accused was given ample opportunity to challenge the evidence presented before the Court and there was no failure of justice, despite misjoinder of charges.

“From the nature of evidence let in by the prosecution, which is adverted to above, it is quite clear that separate evidence was brought in concerning each head of the charges. No occasion resulting in miscarriage of justice or prejudice to the appellant is pointed out by the learned Amicus Curiae. On an anxious consideration of the evidence on record, I am convinced that there occurred no failure of justice on account of such a misjoinder of charge. The appellant obtained enough opportunity to challenge the evidence of each witness and there was no overlapping or mixing up of facts. In the circumstances, the conviction of the appellant is quite legal; in spite of such a misjoinder of charges. Hence, I find no reason to interfere with the judgment of conviction.”

The appellant was the sole accused and was convicted and sentenced for offences punishable under Section 324 (voluntarily causing hurt by dangerous weapons or means), 354 (assault or criminal force to assault modesty of woman) and 448 (punishment for house trespass) of the IPC.

Other Updates

Former Kasargod College Principal Approaches Kerala High Court For Quashing Disciplinary Proceedings Initiated Against Her

Case title: Dr Rema M v The Director Of Collegiate Education And Others

Case number: OP KAT 109/2024

The Kerala High Court has deferred actions under the disciplinary proceedings initiated against Dr Rema who was the principal of the Government College, Kasargod for allegedly misbehaving with students. She has approached the Court for quashing the entire proceedings initiated against her.

The Division Bench comprising Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen stated thus, "All actions pursuant to disciplinary proceedings are deferred".

The petitioner, Dr Rema was working as Principal in charge of Government College, Kasargod. She claimed that she took strict action against drug abuse and other anti-social activities taking place in the college. She alleged that persons on the pretext of campus politics entered the college campus for drug abuse and exploitation of students.

Kerala High Court Orders Medical Board To Examine Jailed Kenyan Woman Seeking Medical Termination Of Pregnancy

Case title: Gware Margret Sebina v Union Of India

Case number: WP(C). NO. 9016 OF 2024

A thirty-two year old Kenyan woman lodged in Women's Jail And Correction Home Viyyur has approached the Kerala High Court seeking permission for medical termination of pregnancy.

Justice Devan Ramachandran has directed the petitioner to be examined by a medical board.

“Pending consideration whether the petitioner's request in this writ petition can be granted, I deem it necessary that she be evaluated by a competent Medical Board to be constituted at the Medical College Hospital, Thrissur.”

The Court thus directed the Superintendent of Medical College Hospital, Thrissur to constitute a medical board. It further directed the Superintendent Of Jail Viyyur Women's Jail And Correction Home to bring the petitioner before the medical board on March 14, 2024, at 11 am for medical evaluation.

KSIDC Can't Escape SFIO Probe On Ground That It Is A Govt Agency, May Lose Reputation Before Public: Centre To Kerala High Court

Case title: Kerala State Industrial Development Corporation Ltd (KSIDC), Vs Union Of India, Shone George Vs Ministry Of Corporate Affairs

Case number: WP(C) 4896/ 2024, WP(C) 42092/ 2023

The Central Government, Director General of Corporate Affairs, Registrar of Companies and Serious Fraud Investigation Office (SFIO) has filed a reply before the Kerala High Court stating that the Kerala State Industrial Development Corporation Ltd (KSIDC) could not take shelter and escape from the investigation conducted by the SFIO stating that they are a government agency and would lose reputation before the public.

The Court had earlier directed KSIDC to prove their bonafides to remove them from the investigation conducted by the SFIO into CMRL, Exalogic Solutions and KSIDC. Exaologic Solutions, an IT company owned by CM Pinarayi Vijayan's daughter, is allegedly involved in the CMRL bribery case.

Justice Devan Ramachandran today orally stated that it assumed that the KSIDC would have requested an investigation by the SFIO since they are a responsible public sector undertaking and it must get rid of all allegations of siphoning off crores of money. The Court orally remarked thus:

Defer Online Film Reviews For 48 Hours After Release : Amicus Curiae Tells Kerala High Court

Case Title: Mubeen Rauf v. Union of India & Ors.

Case Number: WP(C) NO. 32733 OF 2023

The Amicus Curiae in a matter relating to "review bombing" of films has told the Kerala High Court the need for guidelines to govern movie reviews of social media influencers on online platforms which can not only protect the integrity of the filmmaking process but also safeguard the interests of the audience. The report suggested measures including a 48 hour waiting period for reviews following the release of movies, and maintaining a respectful tone for such reviews.

Justice Devan Ramachandran appointed the amicus curiae in a plea filed by the director of 'Aromalinte Adyathe Pranayam', seeking a gag order to ensure that social media influencers and film reviewing vloggers do not publish any reviews of the film for at least 7 days following its release, and another by the Producers' Association highlighting "review bombings" against newly released films.

Supreme Court Collegium Recommends Appointment Of Six Advocates As Judges Of Kerala High Court

The Supreme Court Collegium headed by Chief Justice D.Y. Chandrachud, has recommended the names of six Advocates for appointment as Judges of the Kerala High Court.

The following are the Advocates who have been recommended to be elevated as Judges of the High Court of Kerala:

Abdul Hakim Mullappally Abdul Aziz
Syam Kumar Vadakke Mudavakkat
Harishankar Vijayan Menon
Manu Sreedharan Nair
Eswaran Subramani
Manoj Pulamby Madhavan

Political Background Not Sufficient Reason To Deny Judgeship: Supreme Court Collegium Rejects Centre's Objection Over CPI(M) Affiliation

On March 12, 2024, the Supreme Court collegium headed by Chief Justice D.Y. Chandrachud recommended the name of Shri Manoj Pulamby Madhavan for appointment as Judge of the Kerala High Court.

In evaluating the suitability of Shri Manoj, the collegium evaluated and scrutinized all the materials available on record. The Department of Justice had observed that Shri Manoj was a CPI(M) sympathiser and was appointed as a Government Pleader in 2010 and 2016-2021 by the LDF Government.

The collegium stated that the observation that Shri Manoj was a CPI(M) sympathiserwas 'extremely vague'. It stated that the political background of a candidate may not be a sufficient reason to reject his appointment as a judge. “The input that the candidate is considered to be a CPI(M) sympathizer is otherwise vague and bereft of cogent grounds”, stated the collegium resolution.

"Even otherwise, the mere fact that the candidate has had a political background may not be a sufficient reason in all cases."

Kerala High Court Issues Notice On Plea By European Company Seeking Restoration Of ₹75 Crores Attached By ED In 2017

Case title: Partner Lease OOD v Deputy Director, Directorate Of Enforcement & Ors.

Case number: CRL. M.C. 1689 of 2024

Justice Bechu Kurian Thomas has issued notice to the ED and the Standing Counsel has sought time for filing a statement.

The amount was attached by the ED since Trade International, an Indian proprietorship firm allegedly using forged shipping documents tried to fraudulently obtain 75 crores of rupees as sale consideration for the export of sunflower oil and sugar from a Bulgarian Company called Zvezda – AD.

Asst Public Prosecutor Aneeshya's Mother Moves Kerala High Court Seeking CBI Probe Into Her Suicide, Alleges Criminal Conspiracy By Her Superiors

Case title: Smt Prasanna v State of Kerala & Others

Case number: WP(Crl.) 289/2024

The mother of S Aneeshya, has approached the Kerala High Court seeking a fair and proper investigation by an independent agency like the CBI into the criminal conspiracy that led to the suicide of her daughter on January 21, 2024.

Aneeshya was working as an Assistant Public Prosecutor (APP) at Munisff Magistrate Court in Kollam and it is alleged that she committed suicide due to continuous mental harassment and torture from her superiors at work. It was alleged that Aneeshya faced male dominance and sexist attitudes from her superiors at work that caused her depression and mental stress.

Consumer Forum Vacancies Will Create Hardships For Common Citizens: Kerala HC Permits Incumbent Members To Continue Till Fresh Appointments

Case Number: WP(C) No. 7999 of 2024

Case Title: Confederation of Consumer Vigilance Centre v. Union of India and ors.

The Kerala High Court has directed the State and the Personnel and Administrative Reforms Department to allow the President of State Consumer Disputes Redressal Commission as well as President and members of the District Consumer Disputes Redressal Commission to continue in their respective posts as a temporary measure. The court was hearing a petition against the vacancies in the department.

“Taking into consideration of the fact that notification is yet to be published, there will be an interim direction to respondent Nos.2 and 3 to allow the President of State Commission as well as President and members of the District Commission to continue in the said posts as a temporary measure, as per the Rules prevailing when they were appointed, till the finalisation of the selection process and consequent appointments are made by the appropriate Government” observed Justice Basant Balaji

Kerala High Court Weekly Round-Up: March 11 - March 17, 2024

Rubayya Tasneem

Not Feasible To Expect Documentary Evidence In Family Matters, Court Must Be Prudent: Kerala High Court Reiterates﻿

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Not Feasible To Expect Documentary Evidence In Family Matters, Court Must Be Prudent: Kerala High Court Reiterates