Kerala High Court

Case BriefsHigh Courts

Kerala High Court: Stating that, though the Press has a duty to inform the public, the Division Bench of Devan Ramachandran and Sophy Thomas, JJ., observed that, it is the well-accepted thumb rule that the Press shall not indulge in sensationalism; or in speculating upon the guilt or otherwise of any accused or other individual; or to create an opinion about the comportment or character of a person involved in the Trial; and not to embellish, by impelling or sponsoring an opinion they seek.

Appellant challenged the interim order wherein the Single Judge had issued a direction against the appellant ‘not to publish/broadcast/ telecast any item concerning or relating to the petitioner herein while reporting about Crime No.6/2022 of Crime Branch Police Station and S.C.No.118/2018 of Additional Special Sessions Court (SPE/CBI) III, Ernakulam except the order of the Court for a period of three weeks from today’. 

The contention of the appellant was that the above amounted to a complete ban and operates as a violation of the well-recognized principles of the freedom of the Press, to report and publish the truth.

Analysis and Decision

High Court stated that, it will address the issue: Parameters which are to be kept in mind when a News Media reports on an ongoing Criminal Trial or investigation.

For the above-stated issue, Court stated that its path was illuminated by the holdings of the Supreme Court in Sahara India Real Estate Corporation Ltd. v. SEBI, (2012) 10 SCC 603, wherein, the Hon’ble Court has unambiguously declared that orders postponing reporting of certain phases of Criminal Trial (including identity of the victim or the witness or the complainant) can be applied for a short duration and solely in cases of “real and substantial risk of prejudice” to the proper administration of justice or to the fairness of Trial.

Bench expressed that, the various High Courts and the Supreme Court have repeatedly been engaged qua the contours of the tenuous balance between reporting of facts relating to a crime and the unexpendable requirements to be maintained for a Fair Trial; but there can be little doubt that the Press have a duty to inform the public truthfully about the crimes and the facts relating to investigation, arrest and such other.

Expressing in a more elaborate manner, with respect to the above, Court added that the press certainly cannot be allowed to run amok and will have to be imposed with reasonable restrictions, so as to make sure that every trial and investigation is conducted fairly, openly and above board.

“Press has a duty to inform the public, the publication of lurid details and other sensitive investigative inputs, which are within the sole jurisdiction of the courts to decide upon, certainly require to be put on a tight leash.”

Coming to the impugned order, Bench stated that though it does not want to speak in detail on the merits of the rival factual contentions but there is no doubt that direction not to publish/broadcast/ telecast ‘any item’ concerning or relating to the appellant’, certainly travels beyond the reasonableness of the restrictions sanctioned by the Supreme Court. 

The term ‘any item’ is not merely very vague but would also cause an unfair fetter on the Press to make a fair reporting within the parameters of law, and therefore, we (Court) feel it necessary to modify the same, though to a very limited extent.

 Bench deemed it apposite to dispose of the writ appeal, vacating the impugned order to the extent to which it had restrained the appellant from reporting ‘any item’ relating to the first respondent but clarifying that they shall not engage in sensationalism, or pursue any line of reportage intended to forge an impression against the first respondent or any other accused or witness with respect to their involvement or otherwise in the crime; and without in any manner, commenting about the ‘in camera’ proceedings.

Further, the Court stated that, when the Investigating Officers have already been restrained by the aforesaid order against the State Police Chief, the apprehension of the first respondent stands allayed fully; and resultantly, an absolute ban for publication of ‘any item’ relating to the writ petitioner would perhaps be not relevant any further.[Indo-Asian News Channel (P) Ltd. v. T.N. Suraj, WA No. 566 of 2022, decided on 6-5-2022]

Advocates before the Court:

For the appellant:

BY ADVS. SRI.KALEESWARAM RAJ

           C.P. UDAYABHANU

           THULASI K. RAJ

           SHILPA SOMAN

For the Respondents:

BY SR.ADV.SRI.GEORGE POONTHOTTAM

SRI.NAVANEETH KRISHNAN

BY SR. GOVT. PLEADER SRI.BIJOY CHANDRAN

Case BriefsHigh Courts

Kerala High Court: In a case wherein, due to low CIBIL Score education loan was denied, N. Nagaresh, J., directed for reconsideration of loan applications, disregarding the low Credit Score of the co-obligants.

Petitioners were aggrieved by the denial of the education loan in the present case. The 2nd respondent had rejected the application for an education loan for the reason that the CIBIL Score of the co-applicant was not up to the mark.

On being aggrieved with the above, the petitioner approached the Court.

Petitioner cited the decision of this Court in Pranav S.R. v. SBI, [2020 KHC 4695], wherein it was held that unsatisfactory credit scores of the parents of the petitioner cannot be a ground to reject an educational loan application because the repayment capacity of the petitioner after his education should be the deciding factor. Therefore, the respondents are compellable to sanction and disburse the educational loan applied for by the petitioners.

Analysis and Decision

High Court expressed that, in the exercise of the powers conferred by Sections 21 and 35A read with Section 56 of the Banking Regulation Act, 1949, the Reserve Bank of India, in public interest, has issued Reserve Bank of India (Priority Sector Lending- Targets and Classification) Directions, 2020. Direction 4 contained therein categorises Education as a priority sector. Direction 11 states that Loans to individuals for educational purposes, including vocational courses, not exceeding ₹20 lakhs will be considered as eligible for priority sector classification.

Bench stated that, this Court in the decision of Pranav S.R. v. SBI, [2020 KHC 4695], has held that for educational loans, the repayment possibilities are to be decided not on the financial position of the parents but solely on the projected future earnings of the students on employment after education.

Hence, in the present matter, Court found no reason to take any different view and allowed the petitions.

Lastly, the High Court directed the respondents to reconsider the loan applications, disregarding the low Credit Score of the co-obligants, if any, and sanction and disburse the eligible loan amount.[Kiran David v. SBI, 2022 SCC OnLine Ker 1193, decided on 2-3-2022]

Advocates before the Court:

For the Petitioner:

MANOJ RAMASWAMY

         JOLIMA GEORGE

         JISHA SASI

         C.B. SABEELA

         APARNA G.

         CHINNU ROSE MARY THOMAS

For the Respondents:

JAWAHAR JOSE

         CISSY MATHEWS

         EDWIN JOSEPH

Case BriefsHigh Courts

Kerala High Court: Expressing that, as much as this Court does not desire to control the management of the drains or the flood mitigating systems of the city on regular basis, it is forced to do so because of the large-scale inundation witnessed, Devan Ramachandran, J., held that it is necessary that citizens understand their duty to ensure that canals are fenced and maintained well and kept free of debris, which otherwise would challenge the lives of many other affected by the flooding.

It was stated that on account of the various orders passed by this Court, various steps were taken to mitigate the situation, which bore fruit in the years 2020 and 2021, when the city was spared large-scale flooding.

Court further added that, flood mitigation steps under the name ‘Operation Breakthrough’ completed two of its phases and this Court was under the impression that the systems would operate efficiently in future as well, but the third phase could not be completed due to various circumstances and reasons.

The Bench noted that the State received heavy rainfall in the last one or two days and the situation turned out to be distressing as, many areas and roads went underwater.

High Court asserted that the present case was listed on an emergent basis, and it will require further inputs, as also the assistance of the Amicus Curiae – Sunil Jacob Jose.

The matter was adjourned to be called on 23-5-2022, within which time, the Court directed the Corporation and the head of the ‘Operation Breakthrough’ team to file reports along with statements, enumerating the steps taken and to be taken with respect to the situation that Court witnessed.

Court added that the reports shall be comprehensive, so that this Court can issue effective orders to ensure that such events are, averted during the monsoon season, which is at doorstep already.

Cleaning of Canals

With regard to the cleaning of canals and prevention of dumping waste and plastic into it was concerned, the Secretary of Corporation was put on notice that every necessary and effective measure shall be initiated and ensured on a war footing.

“Persons who violate the directions of the Corporation, as mandated by law, against the deposit of garbage into the canals, shall be taken to task under the fullest warrant of law, to make it deterrent against others who may be under the wrong impression that such activities will still be tolerated.” 

The Court further elaborated by stating that, it is necessary to remind that steps like fencing the canals would be of no effect unless the citizens understand that it is their duty to ensure that such facilities are maintained well and kept free of debris.

Therefore, it will be in the interest of all stakeholders that the Corporation gives necessary advertisements and publicity through all methods available so that citizens would be able to live without fear.[Treasa K.J. v. State of Kerala, WP(C) 23911 of 2018, decided on 19-5-2022]

Case BriefsHigh Courts

Kerala High Court: Addressing a matter wherein maternity benefits were not being allowed to female officers, Raja Vijayaraghavan V, JJ., expressed that the employer is to take all steps possible to ensure that they are sympathetic to the cause of the female officer so that she can achieve her potential in the workplace and the time spent by her to deliver and raise her child shall not be detrimental to her career or her prospects.

The petitioners who were working as Programmer (IT) were denied the Maternity Benefits, hence they approached this Court.

Analysis, Law and Decision

The Supreme Court decision in Municipal Corpn. of Delhi v. Female Workers, AIR 2000 SC 1274 was cited wherein the female workers (Muster roll) engaged by the Municipal Corporation of Delhi raised a demand for grant of maternity leave which was made available only to regular female workers but was denied to them on the ground that their services have not been regularized.

In the present matter, earlier the maternity benefit was rejected on the ground that female officers appointed on contract for a period of one year or less were not eligible for maternity leave.

It was noted by the Court that, benefit of maternity leave on full pay as per Rule 100, Part I KSR has been granted up to a period of 180 days or till the expiry of the existing contract, irrespective of its tenure.

The Government inserted a caveat that no officer shall be entitled to the above benefits unless she has “actually” worked under the employer for a period of not less than 80 days immediately preceding her expected date of delivery or date of miscarriage.

As held by the Supreme Court, women who constitute almost half of the segment of our society have to be honoured and treated with dignity at places where they work to earn their livelihood. Whatever be the nature of their duties, their avocation and the place where they work, they must be provided with all the facilities to which they are entitled.

Bench expressed that becoming a mother is the most natural phenomenon in the life of a woman. The employer has to be considerate and sympathetic to the cause of the female officer and no action shall be taken to lower the dignity of the women employee in the workplace.

Hence, the impugned order insofar as it denied the maternity benefits will be quashed. [Naziya B. v. State of Kerala, 2022 SCC OnLine Ker 2343, decided on 10-5-2022]

Advocates before the Court:

For the Petitioners:

BY ADVS.

M.R.VENUGOPAL

DHANYA P.ASHOKAN

MUHAMMAD ALIKHAN

For the Respondents:

BY ADVS.

ADVOCATE GENERAL OFFICE KERALA

SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF HEALTH SCIENCES

SMT. ANIMA, GOVT.PLEADER.

Appointments & TransfersNews

Supreme Court Collegium has approved the proposal for the appointment of the following Additional Judges of the Kerala High Court as Permanent Judges of that High Court:

1. Shri Justice Murali Purushothaman,

2. Shri Justice Ziyad Rahman A.A.,

3. Shri Justice Karunakaran Babu, and

4. Dr. Justice Kauser Edappagath.

Supreme Court of India

[Collegium Statement dt. 10-5-2022]

Case BriefsHigh Courts

Kerala High Court: Expressing that, Criminal prosecution followed by conviction and imposing substantive sentences and fines on those convicted of suicidal behaviours are believed to constitute an affront to human dignity, K. Haripal, J., pointed out that a large section of the society considers that suicidal behaviour is typically a symptom of psychiatric illness or an act of psychological distress, suggesting that the person requires assistance in his personal and psychological life, not punishment with imprisonment or fine.

It was alleged that, when the de facto complainant and others had demanded the issue of certificates to the applicants in connection with the Life Mission Scheme through manual mode, the petitioner insisted that she would issue certificates manually only on getting instruction from the official hierarchy, which led to altercation in the village office and out of mental turmoil, the petitioner attempted to commit suicide by cutting her veins and thus committed the offence under Section 309 of the Penal Code, 1860.

Analysis and Discussion

Petitioner’s counsel stated that Section 115 of the Act saves criminal liability of the petitioner, an attempt to commit suicide shall be presumed unless proved otherwise, to have been done under severe stress and shall not be tried and punished under the Code. Further, the counsel added that any person under stress can get the benefit of the said provision.

High Court expressed that the legality and correctness of the provision punishing attempt to commit suicide have always been the subject matter of hot discussion in the judicial circle for decades.

Bench cited the decisions of Orissa and Himachal Pradesh High Courts in which prosecutions initiated under Section 309 IPC were quashed by the High Courts.

In Pratibha Das v. State of Orissa, Orissa High Court had quashed the proceedings in light of Section 115 of the Act stating that proceedings cannot be continued for want of criminal intent. Similarly, the Himachal Pradesh High Court in Pratibha Sharma v. State of Himachal Pradesh, it was held that the proceedings are a sheer abuse of the process of law.

“…decriminalisation of attempt to commit suicide is the general view of Courts and legal luminaries.”

“Medical circles also believe that it is not an offence against the State, but, on the contrary, the State itself may be indirectly responsible for the plight of the victim who is left with no other alternative, except to end his life.”

Moving to the present facts, the petitioner had no malafides in delaying the issue of certificates and she had her own explanations, infact she was not expected to issue certificates in manual mode, when the applications were received online. Though the president of the panchayat and her lieutenants rounded up the petitioner and put her under severe mental stress. Petitioner was subjected to abuse and shouting.

High Court noted that there was a tense situation created in the office due to which police reached there and everything had to be faced by the petitioner single-handedly. The petitioner was being abused and pressurized to do an official act against the procedures to be followed in the office. It also appeared that she was illegally restrained and confined in her room.

Lastly, the Bench stated that under severe stress she lost balance and attempted to commit suicide by cutting her veins.

“…overwhelming reasons are made out to say that she had committed the said act under severe mental stress which stands saved from being tried and punished under the Penal Code.”

Hence, Section 115 of the Act saved the act of the petitioner from the penal provision.[Simi C.N. v. State of Kerala, Crl. MC No. 6522 of 2021, decided on 7-4-2022]

Advocates before the Court:

For the Petitioner:

BY ADVS.RAJIT

                   RAMAKRISHNAN M.N.

                   MARY MANJU VINCENT

For the Respondent:

BY SMT. SREEJA V., SENIOR PUBLIC PROSECUTOR

Case BriefsHigh Courts

Kerala High Court: Gopinath P., J., granted bail to the bridal make up artist who was alleged to have sexually assaulted several women in the guise of applying make up.

In the present matter, a person sought anticipatory bail in 4 cases registered against him.

In one of the matters, it was alleged that the de facto complainant had gone to the Bridal Studio of the petitioner for makeup and petitioner had inappropriately touched her on her private parts under the guise of applying the make up on her neck etc. Further, it was alleged that the petitioner inappropriately pulled the t-shirt of the de facto complainant.

Further, in another matter, it was alleged that the petitioner made the de facto complainant stand before him wearing a sari blouse and underskirt alone and also asked her various questions with sexual innuendos and also as to whether she had any sexual relationship with her fiancé earlier and also touched her on her private parts and pulled her underclothing and thereby he committed the offences under Sections 354, 354A(1)(i), 354-A(2), 354A(1)(iv), 354-A(3) and 509 of the Penal Code, 1860.

Moving to the other matter, it was alleged that the de facto complainant had gone to the makeup studio of the petitioner for bridal makeup, the petitioner had under the guise of applying make up put his hand inside the blouse of the de facto complainant and touched her on her private parts inappropriately and had thereafter sent messages to her asking her as to whether she enjoyed the make up session and as to whether her husband as at home etc.

Lastly, in another incident, it was alleged that in the guise of showing the de facto complainant around the studio, the petitioner started touching and groping the de facto complainant. Later, the de facto complainant somehow managed to escape from the clutches of the petitioner and rushed home and informed the matter to her mother and to her grandmother.

Analysis and Decision

In totality, it was alleged that the petitioner had made inappropriate advances and had attempted to sexually molest the victims/de facto complainants while applying the bridal make up on them.

High Court opined that the petitioner can be granted anticipatory bail in all the cases registered against him subject to the conditions.

Out of the offences registered against the petitioner in the cases, the non-bailable offences were those under Sections 354 and 354B of the Penal Code, 1860.

Further, taking into account the allegations raised against the petitioner, Bench expressed that the custodial interrogation of the petitioner may not be necessary for a proper investigation into the cases registered against the petitioner. Hence, Court allowed the bail applications subject to the following conditions:

  • Petitioner shall execute separate bonds for sums of Rs 1,00,000 each with two solvent sureties each for the lime sum to the satisfaction of the arresting officer.
  • Petitioner shall co-operate with the investigation in every manner.
  • Petitioner shall surrender his passport
  • Petitioner shall not attempt to contact the de facto complainants or interfere with the investigation or influence or intimidate any witness
  • He shall not involve in any other crime while on bail.

[Anex Anzare v. State of Kerala, 2022 SCC OnLine Ker 2001, decided on 25-4-2022]

Advocates before the Court:

For the Petitioner:

BY ADVS.

           S.RAJEEV

           R.SUDHA

           V.VINAY

           M.S.ANEER

           SARATH K.P.

           D.FEROZE

           C.J.JIYAS

For the Respondent:

R1 & R2 BY SMT. SEETHA.S. PUBLIC PROSECUTOR

            R3 BY ADV. R. SUDHA

Case BriefsHigh Courts

Kerala High Court: While addressing the matter with regard to the media trial, Mohammed Nias C.P., J., expressed that, half-truths and misinformation cannot be the basis of publications or telecast.

Reports/telecast having the effect of prejudicing mankind against the parties and the court before the case is heard clearly interferes with the course of justice.

Petitioner was arrayed as the third accused alleged for the commission of offences under Sections 116, 118, 120-B and 506 read with Section 34 of the Penal Code, 1860, though a report was filed by the investigating officer changing Section 120B to Section 120 B (1) for adding offence under Section 302 IPC.

The de facto complainant was one of the investigating officers. Initially, there were only 7 accused in the case but later Mr Gopalakrishnan, the brother-in-law of the petitioner and a film actor was also arrayed as the 8th accused.

It was stated that the 6th respondent using his online news portal telecasted items regarding the cases in question from 25-12-2021 onwards fabricating more and more allegations against Mr Dileep and the petitioner about matters which were sub judice in the ongoing trial and the pending investigation.

It was alleged that the 6th respondent was resorting to sensationalism/publication/broadcast of fabricated allegations against the accused persons and their associates.

There was a specific allegation that respondents 3 to 5 were instrumental in leaking out the reports of the alleged investigation which led to the parallel trial by the media.

The first among the interim reliefs sought was to prohibit publication/broadcast of matters relating to the above said crime and the Sessions Case except the orders passed by the courts of law till the disposal of the Writ Petition and also to direct the 6th respondent to produce the contents of the entire telecast from 25-12-2021 till date in Report TV Channel and their Portal concerning the matter.

Analysis and Decision

High Court observed that the media interest or media debate, are all permitted in a democracy government by rule of law subject to one inviolable exception namely that the media cannot during the course of trial or investigation suggest/publish/telecast that A or B is guilty or that C or D is untrustworthy or an honest witness.

The above said are impermissible as the said suggestions of guilt of innocence or creditworthiness of witness etc.. are beyond the permissible rights of the media.

Media cannot usurp the jurisdiction of the courts which alone has the constitutional authority to decide the guilt/innocence of a person or decide on the content, quality or the width of any right available to any citizen/accused/suspect.                                                                          

Further, it was observed that,

Publication of leaks from the investigation agencies and to level allegations against individuals based on such leaks are not protected by the freedom of press under Article 19 (a) of the Constitution and it cannot be a defense that what was telecast was the allegation based on the prima facie findings of an investigating agency or worse on the basis of suspicions of Investigating agency.

Bench noted that, even the accused who is arrested during investigation and produced before a Magistrate under Section 167 (1) CrPC is entitled only to get a copy of the remand report as on the said basis his custody is sought. The Code only directs the investigating Officer to transmit to the Magistrate a copy of the entries in the case diary and when even the accused is not entitled to get the copy of any of the documents except remand report at that stage, it is difficult to comprehend as to how any other person/citizen/media can get copies of the details which even the accused is not entitled.

High Court observed that the during the course of the investigation, the investigating agency is not allowed to divulge the details of the investigation of any crime to the public at large on three counts:

  • Principle
  • Authority
  • Propriety

The Court suggested that the members of the electronic media should be bound by the spirit of guidelines issued under Norms of Journalist Conduct published by the Press Council of India, 2019.

The Bench held that the 6th respondent is to be prevented from telecasting/publishing the reports, therefore Court held that the present case warrants the extreme steps of passing directions against the 6th respondent to prevent such publications relating to the petitioner.

The matter is to be posted on 29-4-2022. [T.N. Suraj v. State of Kerala, WP (Crl.) No. 346 of 2022 (S), decided on 19-4-2022]

Advocates before the Court:

Sr. Advocate and Additional Director General of Prosecutions Sri. Gracious Kuriakose

Case BriefsHigh Courts

Kerala High Court: Observing that trauma in a marital discord is common to both parties, the Division Bench of A. Muhamed Mustaque and Sophy Thomas, JJ., expressed that as per Section 25 of the Hindu Marriage Act, while awarding permanent alimony and maintenance, the husband’s income and other property, if any, and the income and property of the wife, conduct of the parties and other circumstances are to be taken into account.

Wife and children of the respondent had filed under Sections 10,24 and 25 of the Hindu Marriage Act and under Sections 18, 20(1)(d) and 26 of the Protection of Women from Domestic Violence Act, for judicial separation, permanent alimony, compensation and injunction.

Factual Matrix

The matrimonial life of the 1st respondent was miserable due to the cruel nature and behavourial problems of the appellant. She was treated like a slave and the appellant has no love or affection for her.

In view of the above, the wife shifted to her parent’s house along with her children and since 2011, both of them have been living separately.

Further, it was stated that the husband sought divorce from the 1st respondent after branding her as a mental patient. Though the wife sought a decree for judicial separation, permanent alimony, compensation for physical and mental torture since she didn’t want her children to be known as the children of a divorcee.

Though the appellant/respondent opposed the petition and denied the allegations.

Family Court found that 1st respondent/wife was entitled to a decree for judicial separation, monthly separation, maintenance of Rs 20,000, compensation of Rs 5 lakhs and injunction prohibition the appellant from alienating the schedule property. The minor children were also awarded monthly maintenance of Rs 15,000.

Analysis, Law and Decision

High Court observed that the Family Court exercising jurisdiction under the Hindu Marriage Act, at the time of passing any decree, can order a gross sum or such monthly periodical sum towards maintenance and support for a term not exceeding the life of the applicant.

Further, as there was no evidence to show that, the 1st respondent is having her own job and income to maintain her, going by Section 25 of the Hindu Marriage Act, on passing a decree for judicial separation under Section 10 of the Hindu Marriage Act, she was entitled to ask for permanent alimony either as a gross sum or monthly/periodical sum.

Bench expressed that,

Only the wife/husband is entitled for permanent alimony as per Section 25 of the Hindu Marriage Act, and the children will not get any amount under that head.

 High Court stated that in order to pay monthly maintenance to the children at the rate of Rs 15,000 was to be set aside reserving their right to approach the Family Court with a separate petition for enhancement of maintenance if they propose to do so.

Noting the financial capacity and potential of the appellant as a highly professional and the properties and buildings owned by him, Court found it just and proper to award a lump sum amount of Rs 30 lakhs as permanent alimony instead of the monthly maintenance of Rs 20,000 ordered by the Family Court.

Lastly, the Bench held that, Section 25 of the Hindu Marriage Act specifically says that, the permanent alimony and maintenance ordered under that Section may be secured, if necessary, by a charge on the immovable property. So, the injunction order granted by the Family Court was against the spirit of Section 25 of the Hindu Marriage Act.[P.V.G. Menon v. Anjana Menon, 2022 SCC OnLine Ker 1479, decided on 24-3-2022]

Advocates before the Court:

For the Appellant/Respondent:

By Adv. Sri Srinath Girish

For the Respondents/Petitioners:

By Adv. Sri K.P. Balasubramanyan

Case BriefsHigh Courts

Kerala High Court: Dr Kauser Edappagath, J., addressed a matter wherein a married woman voluntarily had sex with her former lover.

In the present matter, the petitioner who was the sole accused faced trial for the offences punishable under Sections 376(1) and 376(2)(n) of the Penal Code, 1860.

The prosecution’s case was that the petitioner after giving a false promise of marriage sexually assaulted the victim/2nd respondent on several occasions.

In Court’s opinion, there was nothing to attract the basic ingredients of Sections 376(1) or 376(2)(n) of the IPC.

As per the FIS and statement under Section 164 CrPC, the petitioner and the victim studied together and they were in love. In fact, they had decided to marry, but due to some reasons beyond their control, they could not marry.

Later, the victim married another person and the alleged sexual acts with the petitioner were taken place during the subsistence of the marriage of the victim with the said person.

Respondent 2’s submitted that it was not her case that the sex they had was forcible. But according to her, she consented to sex persuaded by the promise of marriage given by the petitioner.

“If a man retracts his promise to marry a woman, consensual sex they had would not constitute an offence of rape under Section 376 IPC unless it is established that the consent for such sexual act was obtained by him by giving false promise of marriage with no intention of being adhered to and that promise made was false to his knowledge. (Ranjith v. State of Kerala, [2022 (1) KLT 19]

In the instant matter, the married woman who had sex with her former lover, knew pretty well that she cannot enter into a lawful marriage with the petitioner.

Supreme Court in Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 and in Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191, while drawing distinction between rape and consensual sex observed that the Court must very carefully examine whether the accused had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust.

In drawing a distinction between mere breach of a promise and not fulfilling a false promise, it was further observed that, if the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape and that if the accused had any mala fide intention or had clandestine motives, it is a clear case of rape.

High Court opined that the sex that the petitioner and the victim had was purely consensual in nature.

“Nothing on record to show that the petitioner had made a false promise only to satisfy his lust.” 

Further, the Bench stated that no question of promise to marry arises inasmuch as 2nd respondent was a married woman and she knew that a legal marriage with the petitioner was not possible under the law, hence offence of rape cannot be constituted as it was apparent that the consent was not given by her on the basis of any misconception.

Therefore, all the further proceedings stood quashed. [X v. State of Kerala, Crl. MC No. 4933 of 2021, decided on 29-3-2022]

Advocates before the Court:

For the Petitioner:

By Advs.

Nirmal V Nair, M. Aneesh and Ajai Babu

Other Present:

Sri Sangeetha Raj – Public Prosecutor

Case BriefsHigh Courts

Kerala High Court: Expressing that, Family Court has been functioning in like manner of an ordinary Civil Court, the Division Bench of A. Muhamed Mustaque and Sophy Thomas, JJ., remarked that, family courts have to be impartial or neutral.

This Court noted that the sad plight of the functioning of the Family Court often is portrayed before this Court by challenging the orders invoking Article 227 of the Constitution. Further, the Court stated that the purpose of restricting the challenge to the final order has been lost as the Family Court is more engrossed in passing interim orders focusing on rights, obligations or disputes rather than focusing on the parties before them.

Dissatisfaction with the administration of justice in the Family Courts is writ large on the face of many orders challenged before this Court.

Question for Consideration

Foundational function of the Family Courts in India

Do Family Courts have to remain as a neutral umpire of the real dispute between the parties?

Answering the said question in negative, the Court elaborated stating that, no doubt judges of Family Courts have to be impartial or neutral, but proceedings or processed are not ordained to be away or aloof from making enquiry to find the truth of the real dispute.

What was the claim in the present matter?

The claim was with regard to the realization of patrimony and recovery of gold ornaments.

On suspecting collusive effort between the husband and wife as against the father and mother of the husband, Family Court ordered an enquiry.

The crux of the present petition was to counter the action of the second respondent who was the father of the husband, who revoked the settlement deed executed in favour of the husband.

A combined reading of Sections 9, 10 and 14 would clearly bring out the point that the Family Court is not the mirror of an ordinary Civil Court.

Bench elaborated that, what is essential in a dispute before the Family Court is that the Family Court is only to devise a procedure for a fair conclusion of the proceedings.

Further, the Family Court is given complete freedom in devising a fair procedure for the speedy resolution of disputes before the said Court.

High Court also added that, to find out the truth, the Family Court does not require the consent of the parties. If fairness is reflected in any of the approaches, such an approach is clothed with legal protection.

In the Delhi High Court’s decision of Kusum Sharma v. Mahinder Kumar Sharma, 2015 SCC OnLine Del 6793, the power of the Family Court was considered to elicit the truth and observed that it is the duty of the Court to ascertain the truth regarding the true income of the parties and to pass appropriate orders.

With respect to the present matter, the Bench observed that the Family Court was justified in passing order to find out the truth through public officials.

Hence, the Court found no reason to interfere with the impugned order as no jurisdiction error was committed by the Family Court and the order was consistent with the power.

Therefore the original petition was dismissed.[Nisha Haneefa v. Abdul Latheef, 2022 SCC OnLine Ker 1556, decided on 15-2-2022]

Advocates before the Court:

For the Petitioner:

BY ADVS.

           D.KISHORE

           SMT.MEERA GOPINATH

           SRI.R.MURALEEKRISHNAN (MALAKKARA)

For the Respondent:

BY ADVS.

           SRI.M.V.RAJENDRAN NAIR

           SMT.M.A.ZOHRA

Case BriefsHigh Courts

Kerala High Court: Shircy V. J., dismissed a bail application wherein a man committed rape with a woman and misappropriated her money after putting her under threat.

An application for pre-arrest bail was filed, wherein the petitioner was accused of offences punishable under Sections 376, 406, 323 and 506(i) of the Penal Code, 1860.

Prosecution alleged that a petitioner who was the neighbour of the de facto complainant and friend of the husband of de facto complainant had trespassed into her residential house and committed rape on her and thereafter he threatened her not to divulge the same and committed the very same offence on certain days and he had also taken her ATM card and withdrawn money from her account sent by her husband who was working abroad and misappropriated the same.

By putting her under threat, he misappropriated an amount of Rs 15 lakhs.

Analysis, Law and Decision

High Court noted that the petitioner who is a neighbour and a friend of the husband of the defacto complainant exploited the situation and misappropriated her money and also subjected to rape after putting her under threat.

Bench stated that the investigating agency has to go deep into the allegations levelled against the petitioner. Hence, if the pre-arrest bail was granted, it would definitely affect the investigation of the case adversely and he would also get a chance to abscond and influence the witness of the prosecution.

Therefore, pre-arrest was declined. [Sujeesh v. State of Kerala, 2021 SCC OnLine Ker 9605, decided on 1-3-2021]

Advocates before the Court:

For the Petitioner: Sri Rajan Varghese K., Advocate

For the Respondent: By Public Prosecutor

Case BriefsHigh Courts

Kerala High Court: N. Nagaresh, J., decided whether medical service would fall within the ambit of Section 2(42) of the Consumer Protection Act, 2019 unless of course the service is free of charge or is under a contract of personal service.

Background

Doctors practising Modern Medicine in Kannur filed the present petition seeking to quash the orders of District and State Consumer Disputes Redressal Commissions, as sans jurisdiction and hence illegal.

They sought to declare that the Consumer Fora under the Consumer Protection Act, 2019 does not have jurisdiction to take cognizance of complaints in respect of medical negligence and deficiency in medical service as a medical profession and practice and practice does not come within the purview of term ‘service’ defined under Section 2(42) of the Consumer Protection Act, 2019.

Contention

Senior Counsel assisted by the counsel for the petitioners argued that the medical service/practice is not included in the illustrations in the inclusive definition of the term ‘service’ under Section 2(42) of the Consumer Protection Act, 2019 and hence the intention of the Parliament is clear that the Parliament did not want to include medical services/profession within the purview of the term ‘service’. The learned Senior Counsel pointed out that the Draft Bill of the new Consumer Protection Act, 2019 had included health sector among the illustrations of facilities that are treated as ‘service’ in Section 2(42) of the new Act. However, the health sector was removed from among the illustrations under Section 2(42). The obvious reason is that the lawmakers intended to exclude medical service/profession from the purview of the new Act.

Analysis

High Court noted the argument of the petitioners that a complaint in respect of medical negligence or deficiency in medical service was not maintainable before the District or State Consumer Disputes Redressal Commission for the reason that Section 2(42) of the Consumer Protection Act, 2019 does not take within its ambit the medical profession/medical services.

Supreme Court’s decision in Indian Medical Association v. V.P. Shantha, (1995) 6 SCC 651, considered the question whether medical negligence/deficiency in the medical services would fall within the ambit of ‘service’ and it was held that the services rendered to a patient by a medical practitioner by way of consultation, diagnosis and treatment, both medical and surgical would fall within the ambit of ‘service’ as defined under Section 2(1)(o) of the Act, 1986.

The Act, 1986 was substituted by the Consumer Protection Act, 2019, wherein the term ‘service’ is defined under Section 2(42).

Further, it was added that both Sections 2(42) of the Act, 2019 and Section 2(1)(o) of the Act, 1986 more or less have the same meaning and implications. The only difference is that Section 2)42) of the Act, 2019 is more descriptive and takes specifically in the banking, financing, insurance, transport, processing supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information.

High Court opined that Section 2(42) of the Act would show that the Parliament intended to specifically underline that, certain services like Banking, Financing, Insurance, transport, etc., which are in the nature of public utility services, would come within the purview of services.

The said definition is inclusive and not exhaustive. Therefore, all services which are made available to potential users would fall under Section 2(42), except those services rendered free of charge or under a contract of personal service. The words “but not limited to” appearing in Section 2(42) clarifies the intention of the Parliament.

Hence,

Medical services therefore would indeed fall within the ambit of Section 2(42), unless of course the service is free of charge or is under a contract of personal service.

Bench added that, the District Commission considered the issue of maintainability of the complaint and noted that there was no difference to the meaning of ‘service’ in the old Act and the new Act. Therefore, District Commission rejected the objections as to the maintainability of the complaint.

Even the State Commission held that since no conscious change in the definition of “service” was made in the new Act, the petitioner’s contention that Health Sector had been deliberately excluded by the Parliament while enacting the new law, could not be accepted.

High Court dismissed the petition in view of the above. [Dr Vijil v. Ambujakshi T.P., 2022 SCC OnLine Ker 863, decided on 10-2-2022]

Advocates before the Court:

For the Petitioners:

By Advocates:

GOPAKUMARAN NAIR (SR.)

SOORAJ T.ELENJICKAL

RENOY VINCENT

ARUN ROY

HELEN P.A.

SHAHIR SHOWKATH ALI

For the Respondents:

By Advocates:

SRI.MANU S, ASGI

SRI.V.GIREESH KUMAR, CGC

Case BriefsHigh Courts

Kerala High Court: The Division Bench of A. Muhamed Mustaque and Dr Justice Kauser Edappagath, JJ., held that, despite a warning by the husband, if the wife continues to make discreet calls with another man that too at odd hours, it would amount to matrimonial cruelty.

Background

Husband had instituted a petition for dissolution of marriage on the ground of adultery and cruelty, but the same was dismissed. A matrimonial appeal was filed challenging the said decision.

Wife had instituted a petition for return of gold ornaments and money, the same was allowed in part. Further another petition was instituted by the husband for appointing him as the guardian of a minor child, but the same was dismissed and a matrimonial appeal was filed challenging the same.

The above appeals were interconnected, hence this Court dealt with them together for their disposal.

Factual Matrix

In the present matter, both husband and wife accuse each other of the development of marital discord between them soon after the marriage.

Husband’s case was that, right from the inception of marriage, the wife perpetrated various iniquitous acts, ranging from mental agony by constantly using filthy language, abdicating all shared household duties, threatening to commit suicide, refusing to have sex, picking up quarrels constantly demanding to take her back to her parental home, ridiculing in front of others, abusing his mother, etc. making his life a living hell.

The wife did not stop the matrimonial cruelty and even dragged the husband’s mother and sister to matrimonial controversy launching a false and frivolous criminal prosecution against them.

The husband also stated that the wife had been maintaining an illicit relationship with the second respondent prior to her marriage and even thereafter.

Lower Court evaluated the evidence and found that the husband failed to prove that the wife was maintaining illicit relationship with the second respond and in so far as the ground of cruelty was concerned, the lower Court found that petitions for dissolution of marriage were settled, and parties had reunited. It was also held that inasmuch as the husband did not have a case in the present petition that the wife had caused physical or mental torture after the resumption of cohabitation, the divorce on the ground of cruelty cannot be granted.

In the case where divorce is sought on the ground of adultery, the proof required to establish adultery need not necessarily be proof beyond a shadow of doubt. Proof by preponderance of probabilities would be sufficient. Direct proof of adultery can rarely be given.

The circumstantial evidence is all that can normally be expected in proof of the charge of adultery.

In Court’s opinion, the allegation of adultery was not proved by the husband.

With regard to cruelty, the Court stated that,

Normally matrimonial cruelty takes place within the four walls of the matrimonial home and, therefore, independent witness may not be available. Hence, Court can even act upon the sole testimony of the spouse if it is found convincing and reliable. 

In the evidence of the husband, it came out that the wife caused innumerable mental stress and pain by consistently sharing abusive words and filthy language towards him and also by threatening to commit suicide on many occasions. The husband specifically deposed that right from the inception of marriage, there has been unusual conduct and abusive humiliating treatment on the part of the wife.

In view of the above, it could be inferred that the husband had every reason to apprehend that it was not safe for him to continue the marital relationship with his wife.

Condonation of Cruelty

Lower Court stated that, even assuming that the allegation of cruelty stood proved, there was clear condonation on the part of the accused.

Section 23(1) of the Hindu Marriage Act casts an obligation on the Court to consider the question of condonation which had to be discharged even in undefended cases.

“Condonation of matrimonial offence deprives the condoning spouse of the right of seeking relief on the offending conduct.”

However, condonation cannot be taken to be absolute and unconditional forgiveness.

Bench elaborated that, in case the matrimonial offence is repeated even after an act of condonation on the part of the spouse, it gets revived on the commission of subsequent act resulting in matrimonial disharmony.

It was noted that the husband and wife had entered into a compromise but later both of them accused each other of breaching the same.

High Court with respect to the above, added that mere compromise would not amount to condonation of cruelty unless and until the matrimonial life was restored and there was no evidence to indicate resumption of conjugal life after the compromise.

Whether making phone calls to the second respondents including odd hours as well would constitute mental cruelty?

Husband had deposed that he overheard the intimate conversation between the wife and the second respondent and on questioning, she told him that the second respondent was having more right over her body and mind than him.

Another pertinent fact was that the wife deposed that she used to call the second respondent only on certain days, though the documentary evidence proved otherwise.

Making discreet phone calls frequently by the wife with another man disregarding the warning of the husband, that too at odd hours, amounts to matrimonial cruelty.

Initiation of false complaint by wife against husband, mother-in-law and sister-in-law

High Court expressed that making false complaints and initiating false criminal prosecution by one spouse against other constitutes mental cruelty.

In K. Srinivas v. K. Sunitha, (2014) 16 SCC 34, Supreme Court held that filing false complaint against husband and his family members under S.498A and S.307 of Indian Penal Code will amount to matrimonial cruelty defined under S.13(1)(ia) of Hindu Marriage Act.

In Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558, it was held that making false complaints before the police and authorities causing innumerable mental stress and making false and defamatory allegations will amount to mental cruelty.

High Court opined that the initiation of criminal prosecution was false.

Mental Cruelty was clearly constituted, the Court remarked on noting that the wife kept making continuous telephonic interaction with the second respondent ignoring the warning given by the husband and false initiation of criminal prosecution by the wife against husband and his parents after the reunion and the said are sufficient to revive the past acts of proved cruelty.

Both husband and wife had been living separately since 2012, hence a case for dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act was made out.

Another petition with regard to the return of gold ornaments allegedly encrusted by the husband was filed by the wife and as per the husband’s pleadings, he was the entrusted trustee in so far as the said ornaments and money entrusted to him were concerned and the gold ornaments and money were a trust property in the hands of the husband. Hence, he was bound to account to the wife at any time when she demands.

The court below on evaluation of evidence found that the entrustment of 20 sovereigns of gold ornaments as well as `1,00,000/- by the wife to the husband stood clearly proved, hence this Court did not take a different view and confirmed the earlier Court’s decision.

Custody of Child

The Bench reiterated the settled position, that the welfare of the child is of paramount consideration in matters relating to the guardianship and custody of the child.

High Court stated that nowhere it was mentioned that the child was neglected or not taken care of by the mother, in fact, the evidence on record would show that the child had been given proper care and education by the mother.

Husband had already failed to prove the alleged adulterous act by the wife and Court below had found that considering the welfare of the child, the mother had to be appointed as the guardian.

Lastly, the Court added that the husband was free to move the Family Court to modify or vary the visitation right granted including seeking contact rights.

In view of the above discussion, the marriage between the husband and wife was dissolved.[XXX v. XXXXX, 2021 SCC OnLine Ker 3229, decided on 6-8-2021]

Advocates before the Court:

For the Petitioner:

T.M. Raman Kartha and Syama Mohan, Advocates

For the Respondents:

Anjana, R. Priya, M.B. Sandeep and B. Surjith, Advocates

Case BriefsHigh Courts

Kerala High Court: While addressing a matter for an offence alleged under Cigarettes and Other Tobacco Products Act, Juvenile Justice Act and Kerala Police Act, Dr Kauser Edappagath, J., expressed that mere keeping tobacco at residence would not amount to being an offence.

In the present matter, accused was alleged of an offence under Section 6 read with 24 of the Cigarettes and Other Tobacco Products Act, 2003 (for short COTPA Act), under Section 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and Section 118(i) of the Kerala Police Act, 2011.

The accused without any valid license or documents was found in possession of prohibited tobacco products of GANESH and HANS of total 2770 packets which were kept at his residence with intention to sell the same to the children.

Analysis, Law and Decision

High Court analyzed that Section 6 of the COTPA Act prohibits sale of cigarettes and other tobacco products to a person below the age of 18 years and in an area within a radius of 100 yards of any educational institution.

As per the said Section, one must actually sell or offer to sell or expose to sell or permit the sale of cigarette or tobacco products to a person below the age of 18 years or in an area within a radius of 100 yards of any educational institution.

High Court remarked that, mere keeping of the tobacco products at the residence of the accused will not in any way attract the offence.  

Prosecution had no case that the petitioner had sole or offered for sale or permitted sale of the cigarette or tobacco products, also there was no case that any educational institution was situated within a radius of 100 yards of the petitioner’s house. Hence, Section 6 of the COTPA Act was not attracted.

Section 77 of the JJ Act says that whoever gives, or causes to be given, to any child any intoxicating liquor or any narcotic drug or tobacco products or psychotropic substance, except on the order of a duly qualified medical practitioner, shall be punishable.

The Bench found no case for the prosecution that the petitioner had given or causes to be given tobacco products to any minor child. The only allegation was that the petitioner had kept the tobacco products at his house, and it was presumed by police that they were kept for sale to minors. Hence the said Section will not be attracted.

Section 118(i) of the KP Act, provides that any person who gives or sells to those who are below 18 years of age any intoxicating substance or any articles or substance to children which are harmful for their physical and mental health or procure the same near school premises for that purpose, shall be punishable.

Since there was no case of petitioner giving or selling any intoxicating substance or tobacco products to any person below eighteen years of age, the above said Section will not be attracted.

In view of the above discussion, the present Crl MC was allowed. [Abhijith v. State of Kerala, 2022 SCC OnLine Ker 916, decided on 17-1-2022]

Advocates before the Court:

For the Petitioner:

By Advocates:

K.R. Vinod

SMT. M.S. Letha

KUM. K.S. Sreerekha

SHRI. Arun Sebastian

For Respondent:

By Advocate Addl. Director-General of Prosecution, C.K. Suresh

Case BriefsHigh Courts

In Nadha Raheem v. C.B.S.E,  2015 SCC OnLine Ker 21660, Kerala High Court’s Single Judge Bench in the year 2015 dealt with petitions by two female students belonging to the Muslim community contending that the dress code prescribed by the Central Board of Secondary Education (C.B.S.E) of wearing half sleeve kurta/salvar would prejudice them, as their religious custom mandates them to wear a headscarf and also full sleeve dresses.

In the said case, the Standing counsel for C.B.S.E submitted that the dress code was specified by the C.B.S.E not intending to harass any student, on the contrary, to ensure that no untoward incident shall occur which would lead to cancellation of the examination.

The Standing Counsel had placed the Supreme Court decision by highlighting the extracts which revealed the indigenous methods by which copying was resorted to by means of electronic gadgets, wired to the body itself, and camouflaged by full sleeve dress and so on and so forth.

The Single Judge Bench of the Court noted that only two students came up before the Bench.

In Court’s opinion, the dress code could not be said to be wrong or improper.

However, Justice K. Vinod Chandran observed that,

 “…it cannot be ignored that in our country with its varied and diverse religions and customs, it cannot be insisted that a particular dress code be followed failing which a student would be prohibited from sitting for the examinations.”

Hence, the Court opined that no blanket orders were required in the petitions apprehending that they would be prohibited in writing the examination for the reason of their wearing a dress conducive to their religious customs and beliefs.

In the stated facts and circumstances of the case, High Court had directed that the petitioners who intended to wear a dress according to their religious custom, but contrary to the dress code, shall present themselves before the Invigilator half an hour before the examination and on any suspicion expressed by the Invigilator, shall also subject themselves to any acceptable mode of personal examination as decided by the Invigilator, but however, carried on only by an authorised person of the same sex.

If the Invigilator requires the headscarf or the full sleeve garments to be removed and examined, then the petitioners shall also subject themselves to that, by the authorised person, High Court stated.

Kerala High Court had also asked the C.B.S.E to issue general instructions to its invigilators to ensure that religious sentiments be not hurt and at the same time discipline was not compromised.

In the year 2016, the Kerala High Court while deciding the case of Amnah Bint Basheer v. CBSE, 2016 SCC OnLine Ker 41117, addressed a matter wherein prescription of dress code for All India Pre-Medical Entrance Test-2016 was questioned by the parties who professed Islam.

The ground on which the parties had challenged the dress code was the violation of the fundamental right as guaranteed under Article 25(1) of the Constitution of India.

The parties urged the Court to examine religious freedom in the light of the constitutional scheme.

Kerala High Court observed that, 

The State cannot interfere with the practice of religious affairs which would obliterate his religious identity. The environment in which one has to live is determined by the patterns of the idea formed by his conscience subject to the restrictions as referred under Article 25(1).

Adding to the above observation, in this decision, the Bench also stated that it was open for the State to regulate or make laws consistent with the essential practice of religion. However, while making a regulation or a law, the true import of the essential practice shall not be supplanted.

Petitioners case was that Shariah mandates women to wear the headscarf and full sleeve dress and therefore, any prescription contrary would be repugnant to the protection of the religious freedom.

“..the analysis of the Quranic injunctions and the Hadiths would show that it is a farz to cover the head and wear the long sleeved dress except face part and exposing the body otherwise is forbidden (haram). When farz is violated by any action opposite to farz that action becomes forbidden (haram).”

 “The right of women to have the choice of dress based on religious injunctions is a fundamental right protected under Article 25(1), when such prescription of dress is an essential part of the religion.” 

Giving significance to the Board’s attempt of ensuring transparency and credibility of examinations, Court stated that to harmoniously accommodate the competing interest without there being any conflict or repugnancy. The interest of the Board can be safeguarded by allowing the invigilator to frisk such candidates including by removing scarf. However, safeguard has to be ensured that this must be done honouring the religious sentiments of the candidates.

In 2018, Kerala High Court in Fathima Thasneem v. State of Kerala, 2018 SCC OnLine Ker 5267, while addressing the petition filed by Muslim girl students with the plea to be allowed to wear the headscarf as well as full sleeve shirt which was inconsistent with the prescribed dress code by the school they were studying in, observed that as one has the liberty to follow its own notions and convictions in regard to the dress code, in the same manner, a private entity also has the Fundamental Right to manage and administer its institution.

Justice A. Muhamed Mustaque while referring to the decision of Amnah Bint Basheer v. CBSE, 2016 SCC OnLine Ker 41117, stated that it is the Fundamental Right of the petitioners to choose the dress of their own choice.

Further, the Court held that it had to balance rights to uphold the interest of the dominant rather than the subservient interest and in the facts, in hand, the management of the institution was the dominant interest.

“Where there is priority of interest, individual interest must yield to the larger interest. That is the essence of liberty.”

Hence the Kerala High Court held that the Muslim girl students could seek the imposition of their individual rights as against the larger right of the institution. Therefore, it was for the institution to decide whether the petitioners could be permitted to attend the classes with the headscarf and full sleeve shirt.

Presently the Karnataka High Court has been dealing with a somewhat similar situation, wherein the challenge was with regard to the insistence of certain educational institutions that no girl students shall wear the hijab (headscarf) whilst in the classrooms.

On 10-2-2022, the High Court on being pained by the agitations and closure of educational institutions expressed that

“…ours is a country of plural cultures, religions & languages. Being a secular State, it does not identify itself with any religion as its own. Every citizen has the right to profess & practise any faith of choice, is true.”

The Bench of Ritu Raj Awasthi, CJ and Krishna S Dixit and JM Khazi, JJ., temporarily restrained all the students regardless of their religion or faith from wearing saffron shawls (Bhagwa), scarfs, hijab, religious flags or the like within the classroom, until further orders.

The proceedings in the said matter are still ongoing and the Court is yet to pronounce its decision on the matter.

Case BriefsHigh Courts

Kerala High Court: While explaining that inflicting corporal punishment on a Child by a parent or teacher is forbidden, Dr Kauser Edappagath, J., observed that,

“Hurt of a less serious crime is not forbidden when inflicted in the reasonable chastisement of a child by a parent or by a school teacher.”

A criminal revision petition had been filed by the sole accused on the file of Lower Court under Sections 397 read with 401 of the Code of Criminal Procedure challenging the charge framed against her.

Background

Accused/Revision Petitioner was the class teacher of Standard VI and de facto complainant was a student in the same class. The 4th respondent was his father.

It was stated that due to enmity towards 3rd respondent for the delay in taking out a textbook, the revision petitioner attempted to beat him with the intention to cause hurt, with a cane, but 3rd respondent suddenly turned his face up, the butt of the same touched his right eye corneal and thus the revision petitioner committed the offences punishable under Section 324 of the Penal Code, 1860 and Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000.

Lower Court opined that there was ground for presuming that the revision petitioner had committed the offence and framed charge against her under Section 324 of the Penal Code, 1860 and Section 23 of the JJ Act.

The instant revision petition was preferred challenging the above.

Analysis, Law and Decision

Expressing that, A prima facie case against the accused is said to be made out when the probative value of the evidence on all the essential elements in the charge taken as a whole is such that it is sufficient to induce the Court to believe in the existence of the facts pertaining to such essential elements or to consider its existence so probable that a prudent man ought to act upon the supposition that those facts existed or did happen, High Court stated that at the stage of consideration of an application for discharge, the Court is required to consider whether there are sufficient grounds to proceed against the accused.

The broad test to be applied in the present matter is whether the materials on record, if unrebutted, makes a conviction reasonably possible. [State of Bihar v. Ramesh Singh, (1977) 4 SCC 39; Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4; Dilawar Babu v. State of Maharashtra, (2002) SCC 135; Sajjan Kumar v. CBI, (2010) 9 SCC 368; State v. A. Arun Kumar, (2015) 2 SCC 417; Mauvin Godinho v. State of Goa, (2018) 3 SCC 358; and State v. S. Selvi, (2018) 3 SCC 455].

From the catena of decisions, the principle that can be culled out is that, “if evidence, which the prosecution proposed to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by defence evidence, if any, cannot show that the accused has omitted the offence, then there will be no sufficient ground for proceeding with the trial.”

What led to the present case?

In the case at hand, the revision petitioner being the class teacher tried to bring the noisy class into silence and discipline by making a cane sound, beating it on the table.

Further, she stated that, when all the students sat silently and properly, the 3rd respondent alone was sitting under the bench looking for something. Seeing this, she with bonafide intention to call the attention of the 3rd respondent to the class, without the intention to beat him or cause hurt to him, tried to touch his right-hand elbow portion with the cane. Simultaneously the cane butt touched his right eye corneal portion gently. 

“Parents at home and teachers at school are most important influences in one’s life.”

High Court expressed that, “Paddling children or inflicting disproportionate corporal punishment on them either by a parent or a teacher is, no doubt, forbidden.” 

As per Section 17 of the Right of Children to Free and Compulsory Education Act, 2009 no child shall be subjected to physical punishment or mental harassment.

“Hurt of a less serious crime is not forbidden when inflicted in the reasonable chastisement of a child by a parent or by a school teacher to whom the parent has delegated or is deemed to have delegated his authority.”

In Court’s opinion, a teacher who without malicious intention administers a moderate and reasonable force to a pupil to enforce discipline in classroom/school cannot be exposed to criminal prosecution or fastened with penal liability.

The cane used by the teacher was used in the ordinary course to control noisy class so as to maintain discipline. Hence the same cannot be considered a dangerous weapon. In order to attract Section 234 of OPC, hurt by means of dangerous weapons should be caused voluntarily.

The case record revealed that the teacher had no intention at all to cause hurt to the 3rd respondent.

With regard to ‘assault’ under Section 351 IPC, it was nothing more than a threat of violence exhibiting an intention to use criminal force and the ability and intention to carry out the threat into execution. The prosecution records did not disclose that the revision petitioner did make or express any words or gesture to threaten the 3rd respondent. 

Nothing on record depicted that the teacher caused any mental strain to the 3rd respondent.

High Court held that, revision petitioner’s act could not be said to be with malicious intention to cause hurt to the 3rd respondent. The facts revealed that she exercised her authority reasonably and in good faith and the prosecution allegations, even if admitted as true in their entirety, would not make out offence either under Section 324 of IPC or under Section 23 of the JJ Act.

Therefore, the revision petitioner was discharged, and the criminal revision petition stood allowed. [Jaya v. State of Kerala, 2022 SCC OnLine Ker 544, decided on 24-1-2022]

Advocates before the Court:

For the Petitioner:

BY ADVS.

          SRI.T.K. SASINDRAN

          SRI.T.S. SHYAM PRASANTH

For the Respondent:

BY ADV SRI.K.I.SAGEER

Case BriefsHigh Courts

Kerala High Court: Expressing that, “If the conduct and character of one party causes misery and agony to the other spouse, the element of cruelty to the spouse would surface, justifying grant of divorce”, the Division bench of A. Muhamed Mustaque and Sophy Thomas, JJ., held that, Court cannot leave the life of a spouse to the mercy of the opposite spouse.

High Court remarked that,

If one of the spouses is refusing to accord divorce on mutual consent after having been convinced of the fact that the marriage failed, it is nothing but cruelty to spite the other spouse.

In the present matter the Bench after going through the pleadings and evidence, opined that the parties never developed any emotional bond or intimacy. The reason that they were living at distant places at the time of marriage had hampered developing such bonding.

High Court expressed that the marital relationship is built over the period, based on harmonious combination of differences in taste, outlook, attitude etc.

“The initial phase of the marriage lays a strong foundation for the marriage.”

 Further, elaborating the analysis, Court stated that in some jurisdictions, incompatibility is a recognized ground for divorce.

“If domestic harmony is not achieved during the initial phase of the marriage, it may lead to constant quarrels and bickering, spoiling the relationship.”

The husband approached the Court for divorce on the ground of cruelty, after realising the insurmountable hurdle in moving forward.

High Court added that,

“While deciding this case, we have outlined at the outset the incompatibility of the parties for the reason that, if we omit to refer to the incompatibility, the judgment rendered would only prove innocence or fault of either of the parties. By incompatibility, we mean that both parties failed in building the relationship and one alone cannot be attributed with the imputation of fault.”

The parties never had any cordial relationship and failed to develop any emotional intimacy.

In the present matter, Court had to decide upon cruelty as a ground for divorce.

In Court’s opinion, the wife can’t be fully blamed for the deteriorated relationship, infact the email communications depicted that the wife experienced stress and emotional turbulence.

Husband attributed wife’s behaviour of writing down things and meticulously putting down her actions in advance by cataloguing the schedules and routines as behavioral disorder. Bench denied classifying the same as a disorder in the absence of a medical evidence.

Though the Court stated expressed that, the obsessive nature of the character possessed by the wife would have led to a deteriorating relationship between the parties from the initial phase of life itself.

“Chasing happiness based on schedules instead of living in the moment, appears to be the vowed daily life routine adopted by her. She was not realistic to the fact that the secret of marital harmony lies in accepting the life as it unfolds and not becoming a stickler of the schedules or routines.”

High Court accepted that the conduct and character of the wife was unbearable to the husband.

In any matrimonial relationship, spouses may have a different outlook on the marriage based on faith, perceptions, outlook, attitudes, social ethos, etc. Fearing divorce is repugnant to his or her notion, one would refrain from the divorce based on mutual consent.

Bench observed that there was no scope for reviving the dead marriage.

The decision of Supreme Court in Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558, Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 were referred with regard to cruelty.

Law on divorce recognized both fault and consent as a cause for separation, Court added.

When husband and wife are unable to lead a meaningful matrimonial life due to inherent differences of opinion and one party is willing for separation and the other party is withholding consent for mutual separation, that itself would cause mental agony and cruelty to the spouse who demands separation.

High Court also stated that, if the Court is able to from an opinion that due to incompatibility, the marriage failed and one of the spouses was withholding consent for mutual separation, the Court can very well treat that conduct itself as cruelty.

“No one can force another to continue in a legal tie and relationship if the relationship deteriorated beyond repair.” 

Bench held that the parties were young and living separately since 2017, hence no interference was required in the family court order. [Beena M.S. v. Shino G. Babu, 2022 SCC OnLine Ker 778, decided on 4-2-2022]

Advocates before the Court:

For the appellant:

By Advocates:

JACOB P. ALEX

SRI. JOSEPH P. ALEX

SHRI. MANU SANKAR P.

For the respondent:

MAJIDA. S, Advocate

Case BriefsHigh Courts

Kerala High Court: While addressing a matter wherein an Indian Citizen intended to soleminse and register his marriage with a British Citizen, an OCI card holder, N. Nagaresh, J., held that f a foreign Embassy does not issue a Single Status Certificate or NOC due to the law, rules and regulations prevailing in that country, Declarations or Certificates evidencing the same should be accepted in India for registration of marriage.

Petitioner was an unmarried Indian Citizen working and had approached seeking the quashing of a Circular and to direct respondent 1 — Marriage Officer to accept documents submitted by the petitioner and his bride.

Petitioner’s bride was a British Citizen holding an Overseas Citizen of India card (OCI). Petitioner and his bride decided to solemnize their marriage under the provisions of the Special Marriage Act, 1954.

NOC and Bachelorhood Certificate

Respondent 1 – Marriage Officer informed that for solmenisation and registration of the marriage, petitioner had to produce a No Objection Certificate (NOC) and Bachelorhood Certificates issued by the Embassy of the Foreign Nation concerned.

Bride of the petitioner on returning to Britain was informed that, British Government no longer issue a Certificate of Impediment or No Objection Certificate to British Citizens to get married in Commonwealth Countries for the reason that the marriage in the UK is governed by separate and different legislations in England and Wales, Scotland and Northern Ireland.

Hence, she executed a Single Status statutory declaration before a Solicitor, and it was Apostilled.

Petitioner sought to direct respondent 1 to accept the said documents and take appropriate steps for the solemnization and registration of their marriage.

Analysis and Decision

High Court held that if a foreign Embassy does not issue a Single Status Certificate or NOC due to the law, rules and regulations prevailing in that country, Declarations or Certificates evidencing the same should be accepted in India for registration of marriage.

Stating the above, Court remarked that, “no one can be compelled to achieve an impossible task.”

 Since the petitioner had produced the Single Status Statutory Declaration apostilled, the refusal to solemnize and register the marriage by the intending parties, would result in grave injustice.

Therefore, in view of the above Bench disposed of the petition directing respondent 1 to accept the documents submitted by the petitioner and his bride.[Joel K. Yoyakkim v. Sub Registrar (Marriage Officer), WP (C) No. 3055 of 2022, decided on 3-1-2022]

Advocates before the Court:

For the Petitioner: Advocate U. Jayakrishnan

For the Respondents: Appu P S, GP

Case BriefsHigh Courts

Kerala High Court: M.R. Anitha, J., decided whether gifts given to the bride during marriage by parents be covered under ‘Dowry’ or not?

Instant petition was filed by the petitioner who was the husband of 4th respondent. The impugned order was passed by the 3rd respondent/dowery prohibition officer.

Petitioner’s counsel submitted that the petitioner married the 4th respondent as per the customs and practices prevailing among the Hindu community. After marriage, they were living together as husband and wife at the residence of the petitioner. Since the relationship got strained and 4th respondent initiated legal proceedings against the petitioner and ultimately a petition was filed before the nodal officer.

Further, the counsel’s petitioner contended that the 4th respondent’s parents and her brother had deposited all her ornaments in the bank locker, except daily use jewellery in the name of the 4th respondent and the petitioner at the Bank. The key was also in the possession of the 4th respondent alone.

Notice was issued to the 4th respondent.

Analysis, Law and Decision

Section 3 of the Dowry Prohibition Act, 1961 was referred which was with regard to “Penalty for giving or taking dowry”.

“Presents given at the time of marriage to the bride without any demand having made in that behalf and which have been entered in a list-maintained accordance with rules made under this Act will not come within the purview of Section 3(1) which prohibits giving or taking of dowry.”

 In the averments, it was stated that the ornaments given to the 4th respondent for her well-being were kept in the locker in the bank under the control of the respondents.

The Court stated that as per Dowry Prohibition Rules, 1992 on receiving a complaint, the District Dowry Prohibition Officer is bound to scrutinize the complaint and find whether it would come within the purview of Sections 2,3,6 etc. of the Act and conduct an enquiry to collect evidence from the parties about the genuineness of the complaint and upon such enquiry if it is found that dowry is received by a person other than the women, then only powers under the Act can be exercised by the District Dowry Prohibition Officer.

If the complaint is received with respect to the non-transfer of such dowry to the woman, who is entitled to it as per Section 6 of the Act, the District Dowry Prohibition Officer can issue directions to the parties to transfer the same. 

Bench further, noted that the impugned order nowhere revealed that the 4th respondent stated that gold was given as dowry by her parents as agreed or there was any such demand from the side of the petitioner for dowry.

4th respondent will get jurisdiction to pass direction under Rule 6(xv) of the Rules only if it is found that the ornaments directed to be returned to the 4th respondent are dowry received by the petitioner.

 In the absence of the above finding, the Dowry Prohibition Officer will have no jurisdiction to give a direction under Rule 6(xv).

In view of the above discussion, the impugned order passed was not sustainable in law and hence quashed.

The petitioner’s counsel also stated that his party would cooperate to take and hand over the gold ornaments gifted to the petitioner at the time of the marriage to the 4th respondent and counsel for the 4th respondent agreed to take the said ornaments from the locker in the presence of the Branch Manager.

In view of the above petition was allowed. [Vishnu v. State of Kerala, 2021 SCC OnLine Ker 5131, decided on 26-11-2021]

Advocates before the Court:

For the Petitioner:

K.P. Pradeep

Hareesh M.R.

Rasmi Nair T.

T.T. Biju

T. Thasmi

M.J. Anoopa

For the Respondents:

K.V. Anil Kumar

PP Sangeetharaj N.R.