Supreme Court Collegium has approved the proposal for elevation of Shri A. Badharudeen, Judicial Officer as Judge of the Kerala High Court.
Supreme Court of India
Kerala High Court: In an interesting case regarding custody of a major the Division Bench of K. Vinod Chandran and M.R. Anitha, JJ., refused to invoke parens patriae doctrine on observing signs of obsession coupled with hysteria in the detenue.
In the instant case, the petitioner, who was the counsellor and therapist of the detenue filed a petition claiming that the detenue, a major and a brilliant student, was competent to decide on her own way of life, therefore, she should be let free from the custody of her parents as the detenue insisted that she wanted to go with the petitioner. The alleged detenue was residing in her parental home and was aged 21 years, a major. The 52 years old petitioner alleged illegal detention of the detenue by her own parents on the ground that he had a live-in relationship with her for the last two and half years.
Counsel for the respondents, K.Suresh Babu argued that there was no illegal detention and the respondents were trying to provide psychiatric help to their daughter. Since, she was a brilliant student who suffered a bout of depression for which the parents had consulted the petitioner. It was alleged that, the petitioner, in the guise of counselling and therapy insisted on solitary sessions with the detenue after which the detenue developed an obsessive attachment to the petitioner.
The Bench noticed that the petitioner was already married and had two children out of wedlock. Also, the mother of the petitioner expressed suspicion over the activities of the petitioner and disapproved his actions. The petitioner was Post Graduate in Psychiatry from U.K, initially, he pursued the medical profession, but later proclaimed himself to be a Vedic Yogacharya/Instructor. It was alleged that the petitioner while working as a Psychiatric Consultant misbehaved with a 14-year-old girl and sexually abused her at his residence; hence, the Bench observed, the petitioner was not leading a socially acceptable life and had difficulty in explaining the means and goals of his spirituality.
Hence, the Bench while distinguished on facts with the judgment of Supreme Court in Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368, and assessed that the detenue was incapable of making a decision for herself as the parents of the detenue too had raised serious concerns of her obsessive behaviour. Also, considering the facts that parents of the detenue had initially approached the petitioner with their daughter for psychiatric consultation and their trust in him as a Doctor and therapist was breached to the extent of the petitioner declaring his patient to be a live-in partner; when he himself was married with two children; the Court held that there was no illegal detention at all. Consequently, the Court directed the detenue to be retained with her parents at her parental home. [Kailas Natarajan v. District Police Chief, 2021 SCC OnLine Ker 337, decided on 20-01-2021]
Kerala High Court: T.V. Anilkumar, J., dismissed the present Appeal against the impugned order of Additional District Court whereby the Court refused to order attachment of disputed land and machineries.
In the instant case, the appellant purchased some scrap and machineries from the respondent company under Memorandum of Understanding (MoU) dated 31-01-2017. Although the appellant paid a substantial amount, some amount was still outstanding towards the purchase price. The appellant claimed that, some of the goods kept in the disputed land were yet to be removed. The appellant contended that, the respondent had withheld the goods and proposed to sell them along with the disputed land. It was stated that the appellant had suffered a huge loss due to the alleged breach of contract committed by the respondent.
Stand taken by the respondent was that all the goods purchased by the appellant were already removed from the premises and some amount towards value of goods was outstanding due. The respondent set up a rival claim of loss and sought damages from the appellant.
The contention of the appellant was that until the claim for damages is determined by the Arbitral Tribunal, the disputed land, machineries etc. had to be kept intact or else, the appellant might not be in a position to recover the loss from the respondent. The appellant submitted that the court below refused to grant reliefs in respect of the scrap and machineries only for the reason that they were not scheduled in the petition. Therefore, the matter may be remitted back to the Court below and appellant may be given an opportunity to incorporate the property in the original petition.
The respondent argued that the appellant had not made out any prima facie case also the Court below had dismissed the Original Petition (Arb) on the ground that the material facts were suppressed by the appellant. Regarding physical possession of the land, the respondent had already approached another Bench of this Court seeking liberty to be reserved with it for sale of the property for settling its liabilities. The respondent opposed prayer for remittance of the case to the Court below and contended that, sole Arbitrator had already been appointed after the impugned order was passed, there is a legal bar under Section 9(3) of the Arbitration and Conciliation Act, 1996 (“the Act”) which precludes the court below from granting any interim measure of protection.
The Court opined that attachment of land as sought by the appellant could not be granted as the said land had already become the secured asset of Edelweiss Asset Reconstruction Company, Mumbai. Under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2016 (“SARFAESI Act”), the physical possession of the property was already taken over by Chief Judicial Magistrate. In view of the appointment of sole Arbitrator, the Court said that, it is up to the learned Arbitrator to consider the question as to whether the appellant would be entitled to claim any interim measure of protection under Section 17 of the Act.
The Court dismissed the appeal, holding that there was no reason to interfere with the impugned order passed by the court below. [K.K. Ibrahim v. Cochin Kagaz Ltd, 2020 SCC OnLine Ker 7755, decided on 01-12-2020]
To marry or not to marry and if so whom, may well be a private affair. But, the freedom to break a matrimonial tie is not.
(N.G. Dastane v. S. Dastane: (1975) 2 SCC 326).
Kerala High Court: The Division Bench of C.K. Abdul Rehim and R. Narayana Pisharadi, JJ., while addressing the instant petition highlighted the observation that:
a petition for divorce under Section 27 of the Special Marriage Act, 1954 can be filed only when the marriage is solemnised or deemed to be solemnised under the provisions of that Act.
Husband in the instant case has challenged the divorce decree passed by the Family Court filed by the wife.
Section 27(1)(d) of the Special Marriage Act, 1954 provides that, subject to the provisions of that Act and the Rules made thereunder, a petition for divorce may be presented to the District Court either by the husband or the wife on the ground that the respondent has treated the petitioner with cruelty.
Petitioner and respondent had solemnised their marriage under the provisions of the Special Marriage Act, 1954.
Primary allegation against the respondent was that he was always suspicious of the moral character of the petitioner and that he always used to make accusations of infidelity and immorality against her.
Imputations made by the respondent on the character of the petitioner, especially the accusation of illicit relationship by her with her colleagues in the profession.
Whether the conduct of the respondent imputing infidelity and immorality on the petitioner amounts to inflicting mental cruelty?
Mental cruelty is that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other (See V. Bhagat v. D. Bhagat : (1994) 1 SCC 337)
Bench stated that to constitute cruelty, the conduct complained of must be something more serious that ‘ordinary wear and tear of married life’.
In the instant case, it was submitted that the respondent had publicly humiliated the petitioner by telling two strangers that his wife was sleeping with another man on the previous night.
Court noted that it was proved that the respondent had informed the colleagues of the petitioner in the hospital that she was having an affair with another doctor. Thus the respondent made the petitioner a subject of scandal in the hospital where she was working.
Due to the above-stated petitioner had to resign from the hospital on account of shame.
The above-discussed incidents proved that the respondent was in the habit of imputing infidelity and immorality on the part of his wife.
Injury to reputation is an important consideration in dealing with the question of cruelty.
In Raj v. Kavita : (2017) 14 SCC 194, Supreme Court held that, the conduct of a spouse levelling false accusations against the other spouse which would have the effect of lowering his/her reputation in the eyes of his/her peers, would be an act of cruelty.
In Narendra v. Meena: (2016) 9 SC 455, Supreme Court held that, levelling of absolutely false allegations and that too with regard to an extra-marital life, is quite serious and that can surely be a cause for mental cruelty.
With regard to the above discussions, it was observed that
Unending accusations and imputations can cause more pain and misery than physical beating.
Bench expressed that, in a delicate human relationship like matrimony, one has to see the probabilities of the case. One has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse due to the acts or omissions of the other.
Court further in line with the above discussions also stated that
Any woman with reasonable self-respect and power of endurance would find it difficult to live with such a suspicious and taunting husband.
Hence, the lower Court’s conclusion that the petitioner was treated with cruelty by the respondent and she was entitled to get divorce decree in light of the same was correct.
Appellant’s Counsel submitted that since the marriage was solemnised in a church, the marriage solemnised under the provisions of Special Marriage Act, 1954 would not prevail and the petition for divorce filed under Section 27 of the said Act would not be maintainable.
Hence, the petition for divorce should have been filed under Section 10 of the Divorce Act, 1869.
The Indian Christian Marriage Act, 1872 is not applicable to territories which were comprised in the erstwhile State of Travancore – Cochin existed before the 1st November 1956.
The marriage between the parties in the instant case had taken place in an area comprised in the erstwhile Travancore State.
Therefore, the marriage between the parties in the instant case was not governed by the provisions of the above-mentioned statute.
High Court observed that when the marriage is not governed by any statutory law, the validity of the marriage has to be decided in accordance with the personal law applicable.
Further, it followed that there was no valid marriage solemnised between the parties in the church. If that be so, the marriage solemnised as per the provisions of the Special Marriage Act, 1954 is the valid marriage that existed between the parties.
Adding to the above, bench stated that had the marriage between the parties conducted in the church been valid, it was not necessary for the parties to solemnise the marriage under Chapter II of the Special Marriage Act, 1954.
The very fact that the marriage between the parties was solemnised by them under the provisions of Chapter II of the Special Marriage Act, 1954 would indicate that the parties were also aware and conscious of the fact that the marriage between them conducted in the church was not valid.
In Stephen Joshus v. J.D. Kapoor: 58 (1995) DLT 57,
the parties were Christians who had been married to each other under the provisions of the Indian Christian Marriage Act, 1872. A joint petition was preferred by them under Section 28 of the Special Marriage Act, 1954 seeking the dissolution of marriage by a decree of divorce by mutual consent.
The trial court dismissed the petition on the ground that the marriage was solemnised under the Christian Marriage Act whereas divorce had been sought under the Special Marriage Act and therefore, the petition was not maintainable.
The Delhi High Court held that sub-section (2) of Section 28 of the Special Marriage Act confers jurisdiction upon the District Court to grant a decree, declaring the marriage to be dissolved only on the satisfaction that the marriage has been solemnised under that Act and therefore, upheld the dismissal of the petition by the lower court.
In Aulvin v. Chandrawati: 1974 SCC OnLine All 285,
the husband filed a petition for divorce against the wife on the ground of desertion under Section 27 of the Special Marriage Act. The parties were admittedly Christians and they were married in a Christian church according to Christian rites.
The wife contended that since the parties were Christians and had been married under the provisions of the Indian Christian Marriage Act, 1872, the petition for divorce should have been filed under Section 10 of the Divorce Act, 1869 and the petition filed under Section 27 of the Special Marriage Act was not maintainable.
The Allahabad High Court held that the petition for divorce presented under Section 27 of the Special Marriage Act, 1954 was not maintainable since the marriage between the parties was neither solemnised nor registered under that Act.
Hence, the Court held that the marriage between the petitioner and respondent in the church was not valid and marriage solemnised under the provisions of the Special Marriage Act, 1954 would prevail over it. If only the marriage conducted between the parties in church was valid, the solemnisation of marriage under Chapter II of the Special Marriage Act, 1954 would have been an exercise in futility.
Therefore, the divorce petition under Section 27 of the Special Marriage Act, 1954 would not be maintainable.[Kiran Kumar v. Bini Marim Chandi, 2018 SCC OnLine Ker 13579, decided on 11-10-2018]
SRI.S.V.PREMAKUMARAN NAIR SMT.M.BINDUDAS SMT.P.S.ANJU SRI.P.K.JANARDHANAN SRI.R.T.PRADEEP For Respondent: SMT.MAJIDA.S SMT.MAJIDA.S CAVEATOR DR. SEBASTIAN CHAMPAPPILLY AMICUS CURIAE
Kerala High Court: P.V. Asha, J. allowed the writ petition questioning status of IDBI Bank as “State” under Article 12 of the Constitution and further stated that the acts of public sector undertakings arising out of contractual transactions between the parties will not fall under the term “public duty” to attract the Court’s jurisdiction.
Brief facts of the case are such that the petitioner challenged the demand of Rs 11,00,000 as a processing fee of a credit facility and retaining of original property documents as security against such facility as arbitrary and illegal, hence, being violative of his fundamental rights. The petitioner, while relying on R.D.Shetty v. International Airport Authority, (1979) 3 SCC 489, contended that as per the order passed by the RBI, IDBI would be treated as a private bank only for regulatory purposes and it would continue to be a public sector bank for all other purposes. It was further argued that IDBI is controlled by the Central Government and it is always under the watch of Central Vigilance Commission.
Counsel for the respondent challenged the maintainability of Petition stating that respondent bank does not perform any public or statutory or sovereign function and it does not enjoy any monopoly in the banking. It was argued that its function is confined to commercial activities and the Central Government does not have any deep or pervasive control over its functioning.
The court dismissed the petition, holding that providing of credit facility or loan on the strength of title deeds given against security cannot be said to be done in discharge of any public function. Hence, even when the bank is a public sector bank, demand for a processing fee or withholding of title deeds towards security cannot be said to be one involving any element of public duty. Therefore, IDBI is not amenable to writ jurisdiction. [Unimoni Financial Services Ltd. v. IDBI Bank Ltd., 2020 SCC OnLine Ker 7347, decided on 16-12-2020]
Kerala High Court: R. Narayana Pisharadi, J., while observing the instant matter asked the trial court to reconsider the question whether the suit document is a bond or an agreement.
The instant suit was filed for the realisation of money and certain other reliefs. The claim for money was based on the document allegedly executed by the first defendant in favour of the plaintiff.
When the said document was tendered in evidence, the defendants raised an objection to the marking of the document on the ground that it is a bond and it is an insufficiently stamped document.
Trial Court in its decision had found that the suit document was only an agreement and not a bond.
Defendants had also raised an objection contending that the document was a mortgage deed and it should be compulsorily registrable.
Section 2(a) of the Kerala Stamp Act, 1959 defined a bond as follows:
“(a) ‘bond’ includes —
(i) any instrument whereby a person
obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be;
(ii) any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another; and
(iii) any instrument so attested, whereby a person obliges himself to deliver grain or other agricultural produce to another;”
It was observed that the above-stated definition is identical to the definition of bond in Section 2(5) of the Indian Stamp Act, 1899. The said definition includes all types of instruments.
Petitioner’s Senior Counsel submitted that the suit document comes under Clause (ii) mentioned above. But, learned counsel for the first respondent would contend that in order to attract Clause (ii) of Section 2(a) of the Act, the obligation created by the document shall be to pay a definite or specified amount and not something to be determined by the Court.
Further, it was submitted that in the instant case the document does not create an obligation to pay a definite or specified amount and therefore, it is not a bond but only agreement.
Suit document is styled as an agreement. But, for finding out the true character of the instrument, one has to read the instrument as a whole and then find out the dominant purpose. The test is not what the document calls itself or what form it adopts but what is the true meaning and effect of the terms contained therein.
Delhi High Court’s decision in Hamdard Dawakhana (Wakf),1967 SCC OnLine Del 36, the full bench of the court considered the distinction between the bond and an agreement. In this decision, it was observed that it is trite to say that every bond is an agreement and so is the case with a mortgage or sale or exchange but what the court has to see is whether that agreement has acquired the character of a “bond”.
Bond has an obligation to pay money created by the instrument itself.
A document which evidences acknowledgement of an antecedent obligation or a pre-existing liability would not normally become a bond.
The real test to decide whether a particular document is a bond or not is to find out, after reading the document as a whole, whether an obligation is created by the document itself or whether it is merely an acknowledgment of a pre-existing liability.
Where the obligation is a pre-existing one, the subsequent document or the document executed subsequently, giving the nature of the obligation or the terms and conditions of the contract, shall be a mere agreement.
Trial Court failed to take into consideration the fact that, as per the terms of the document, a liability is created for a fixed amount, that is, the amount borrowed and 10% of that amount. Adding to this, it also did not consider whether the stipulation in the document is sufficient to treat it as a bond. Principles mentioned in the Supreme Court cases have also not been referred by the trial court.
High Court allowed the original petition and further stated that the trial court shall consider the question of whether the suit document is a bond or an agreement. [A.V. Ravi v. M.M. Abdulkhadar, 2020 SCC OnLine Ker 8185, decided on 01-12-2020]
Kerala High Court: A.K. Jayasankaran Nambiar, J., while holding the detention of goods valid as per Section 129(1)(b) read with Section 129(3) of the GST Act, discussed the requisites of interstate transactions under the GST Act.
Facts of the case are enumerated hereunder;
The petitioner contends that, while the consignor agriculturist is not required to take any registration in view of the express provisions of Section 23(1)(b) of the Act, he is also not required to take compulsory registration under Section 24, since the non-obstante clause in Section 24 does not apply to agriculturists mentioned under Section 23. It is his further case that while the e-way bill clearly indicated that the goods were exempted goods, being turmeric bulbs and turmeric, even if the respondents have a case that the goods have been wrongly classified, the same cannot be a reason for detaining the goods under Section 129.
The Government Pleader submitted that the goods on verification were found to not answer the description of exempted goods under HSN Code 910 (for which the consignment was allegedly booked). Further, the consignment was not accompanied by a delivery challan that is required to accompany any consignment of exempted goods sold by an unregistered person.
The Court observed, “… non-registration of the consignor, or the alleged misclassification of the goods under transportation, cannot be a ground for detention under Section 129 of the GST Act.” However, “the consignor being an unregistered person, and the goods supplied by him to the petitioner being exempted goods, the transportation had to be covered not only by an e-way bill but also by a delivery challan, and since the transportation was not covered by a delivery challan, the respondents were justified in detaining the consignment.”
The Court deciding upon the liability of the petitioner under Section 129(1)(b) of the Act, said, “(…) the petitioner would have to pay the lesser of an amount equal to 5% of the value of the goods or Rs 25000. In the instant case, the value of the goods being approximately 1000000, the lesser amount would be Rs 25000 which amount the petitioner would necessarily have to pay to obtain a release of the goods and the vehicle.”
Disposing off the present petition, the Court directed the respondents to release the goods and the vehicle to the petitioner on payment of Rs 25000 by the petitioner, as required in terms of Section 129(1)(b) read with Section 129(3) of the GST Act.[Mohammed Shereef v. State of Kerala, WP (C) No. 23397 of 2020, decided on 02-11-2020]
Sakshi Shukla, Editorial Assistant has put this story together
Former Chief Justice K.K. Usha of Kerala High Court breathed her last breath yesterday.
She served her term as the Judge of Kerala High Court from 25-02-1991 to 03-07-2001, wherein she served as the Chief Justice of the High Court from 2000 to 2001.
Post-retirement she was appointed as president of the Customs, Excise, and Service Tax Appellate Tribunal.
Between 2005 and 2006, she headed an enquiry by the Indian People’s Tribunal (IPT) to investigate the communal situation in Orissa.
Justice Usha represented India at the International Convention of the International Federation of Women Lawyers in Hamburg, Germany in 1975.
She was India’s representative at the United Nations’ Joint Seminar on ‘Convention on the Elimination of all forms of Discrimination against Women‘ organised by the International Federation of Women Lawyers and the International Federation of Women of Legal Careers.
Justice Usha was the second woman to have served as the Chief Justice of the Kerala High Court.
Supreme Court Collegium approves the proposal for elevation of the following Advocates and Judicial Officers as Judges of the Kerala High Court:
Supreme Court of India
[Collegium Resolution dt. 14-08-2020]
The Supreme Court Collegium has approved the proposal for appointment of following Additional Judges of Kerala High Court as Permanent Judges of that High Court:
1. Justice V.G. Arun,
2. Justice N. Nagaresh,
3. Justice T.V. Anilkumar, and
4. Justice N. Anil Kumar.
Supreme Court Collegium
[Collegium Statement dt. 21-07-2020]
President appoints Karunakaran Nair Haripal, to be an Additional Judge of the Kerala High Court, with effect from the date he assumes charge of his office till 8th May, 2022.
Access the notification here: NOTIFICATION
Ministry of Law and Justice
[Notification dt. 21-05-2020]
President after consultation with Chief Justice of India Orders the transfer of Justice Ananta Manohar Badar, Judge of Bombay High Court as Judge of Kerala High Court and direct him to assume charge of his office in the Kerala High Court.
Ministry of Law and Justice
[Notification dt. 19-05-2020]
President is pleased to appoint S/Shri (i) Thirumuppath Raghavan Ravi, (ii) Bechu Kurian Thomas, (iii) Gopinath Puzhankara and (iv) Smt. Mudalikulam Raman Anitha, to be Additional Judges of the Kerala High Court, in that order of seniority, for a period of two years with effect from the date they assume charge of their respective offices.
Ministry of Law and Justice
[Notification dt. 04-03-2020]
The Supreme Court Collegium approved the proposal for elevation of the following persons as Judges of the Kerala High Court:
4. Smt. M.R. Anitha.
Supreme Court of India
[Collegium Resolution dt. 30-01-2020]
President with the consultation of Chief Justice of India, transfers Justice Amit Rawal, Judge of Punjab and Haryana High Court as Judge of Kerala High Court.
He has been directed to assume the charge of the office on 13-11-2019.
Ministry of Law and Justice
[Notification dt. 30-10-2019]
Reconsideration of the proposal of transfer of Justice Amit Rawal, Judge, Punjab & Haryana High Court.
Collegium, vide Minutes dated 28-08-2019 recommended transfer of Justice Amit Rawal, Judge, Punjab & Haryana High Court, in the interest of better administration of justice, to Kerala High Court.
Upon being requested to send his response in terms of the Memorandum of Procedure, Justice Amit Rawal vide representation dated 2-09-2019, for reasons stated therein, has requested for reconsideration of his proposed transfer to Kerala High Court.
On reconsideration, the Collegium is of the considered view that it is not possible to accede to his request. The Collegium, accordingly, reiterates its recommendation dated 28-09-2019 for transfer of Justice Amit Rawal to Kerala High Court.
[Collegium Resolution dt. 03-09-2019]
Supreme Court of India
Proposal for the appointment of Shri Viju Abraham, Advocate as a Judge of the Kerala High Court.
“For purpose of assessing merit and suitability of Shri Viju Abraham we have carefully scrutinized the material already on record as well as the further information received from Kerala High Court. Having regard to all relevant factors, the Collegium is of the considered view that Shri Viju Abraham is suitable for elevation to the High Court.”
Collegium resolves to recommend that Shri Viju Abraham, Advocate, be appointed as a Judge of the Kerala High Court.
[Notification dt. 06-05-2019]
Supreme Court of India