Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: In a petition filed by a 21-year-old girl, seeking medical termination of her pregnancy, V.G. Arun, J. observed that the drastic change in the matrimonial life of a pregnant woman is equivalent to the ‘change of her marital status’ and she cannot be denied permission for terminating her pregnancy, on the premise that she is not legally divorced, and her marital status has therefore not changed. Further, the Medical Termination of Pregnancy (‘MTP’) Act, 1971 does not contain any provision requiring the woman to obtain her husband’s permission for terminating the pregnancy, as the woman bears the stress and strain of the pregnancy and the delivery.

In this case, the petitioner against her family wishes married the respondent. Thereafter, the respondent and his mother started ill- treating her. In the meanwhile, she became pregnant, however, the respondent raised suspicion regarding the paternity of the unborn baby and on that excuse, refused to provide any sort of support, either financial or emotional, to the petitioner. The psychological impact of the cruelty, the ignominy of having to go back to her parents, and the lack of emotional and psychological support made the stress and strain of the pregnancy unbearable. Therefore, the petitioner decided to terminate her pregnancy and she approached the Family Planning Clinic, however, the Doctors at the clinic refused to terminate the pregnancy as there were no legal documents to prove separation/divorce of the petitioner with the respondent. Therefore, she filed a complaint against the respondent and his mother for the offence punishable under Section 498-A r/w 34 of the Penal Code, 1860. Thereafter, she again approached the clinic, but the doctors once again refused to relent to her request, as the pregnancy was of 21 weeks 2 days gestation and there was no indication of fetal anomaly or maternal illness.

The Court observed that the MTP Act, 1971 was introduced with intention to liberalise certain existing provisions relating to termination of pregnancy as health measures, like:

  • Danger to the life or risk to the physical or mental health of the woman.

  • Humanitarian grounds – such as when pregnancy arises from sex crime or rape or intercourse with lunatic woman etc.

  • Eugenic grounds – Substantial risk that the child if born would suffer from deformities and diseases.

Further, as per Section 3(2)(a) of the MTP Act, 1971 pregnancy can be permitted to be terminated by a registered medical practitioner and as per Section 3(2) (b), if the length of pregnancy exceeds 20 weeks, but does not exceed 24 weeks, then Medical termination of pregnancycan be permitted based on the opinion of two registered medical practitioners that, continuance of pregnancy would involve risk to the life of the pregnant woman or grave injury to her physical and mental health or that, if the child were born, it would suffer serious physical or mental abnormality.

The Court observed that in the petitioner’s case, the Medical Board has opined that medical termination of pregnancy may be done since continuance of the pregnancy will have a negative impact on her mental health, further, the petitioner belongs to the weaker section of society and does not have the financial capacity to bring up the child on her own. Even, her husband had refused to accompany her to the hospital from the initial stages of her pregnancy, thus, she is denied emotional support as well.

Thus, the question is whether medical termination of pregnancy can be allowed, even if the petitioner does not fall within the category of women eligible for termination of pregnancy as per the rules.

The Court examined Rule 3B (women eligible for termination of pregnancy up to twenty-four weeks), and observed that women, whose marital status changed during the ongoing pregnancy (widowhood or divorce), are also included. It was also observed that it is to be considered that, despite the drastic changes in petitioner’s matrimonial life, whether she could be denied permission for terminating her pregnancy, on the premise that she is not legally divorced, and her marital status has therefore not changed.

The Court referred to the ruling in Suchita Srivastava v. Chandigarh Admn, (2009) 9 SCC 1, wherein it was held that “a woman’s right to make reproductive choice is also a dimension of her personal liberty, as understood under Article 21 of the Constitution of India and there can be no restriction on a woman’s right to exercise her reproductive choice to either procreate or to abstain from procreating”. Further, it cited the decision in X v. Health & Family Welfare Department, 2022 SCC OnLine SC 905, wherein it was held that “Clause (c) of Rule 3B speaks of a change of marital status during an ongoing pregnancy and is followed in parenthesis by the words “widowhood and divorce”. The expression “change of marital status” should be given a purposive rather than a restrictive interpretation and need not be construed to be exhaustive of the category which precedes it”. Thus, it was observed that the drastic change in the matrimonial life of a pregnant woman is equivalent to the ‘change of her marital status’ and the word ‘divorce’ cannot in any manner qualify or restrict that right.

The Court while considering the petitioner’s right to privacy, placed reliance on K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1, wherein, right to privacy was held to be a fundamental right and an essential aspect of dignity.

Moreover, the Court observed that MTP Act does not contain any provision requiring the woman to obtain her husband’s permission for terminating the pregnancy, as the woman bears the stress and strain of the pregnancy and the delivery. Thus, the Court permitted the petitioner to terminate her pregnancy and directed the Hospital’s Superintendent to take immediate measures for constituting a medical team for conducting the procedure. Further, it ordered that if the baby is alive at birth, the hospital shall ensure that the baby is offered the best medical treatment, and if the petitioner is not willing to assume the responsibility of the baby, the State must take up the responsibility for the time being and offer requisite medical support and facilities.

[X v. Union of India, Writ Petition (C) NO. 29402 of 2022(A), decided on 26.09.2022]


Advocates who appeared in this case:

For Petitioner: Advocate Liji.J.Vadakedom

Advocate Rexy Elizabeth Thomas

Advocate Tom E. Jacob

For Respondent: Deputy Solicitor General of India

Advocate Aneesh. K.R.,

Advocate Rooprekha D.Kamath,

Advocate Saurav B.

Advocate Benita Alphonsa,

Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: In an appeal relating to the grant of anticipatory bail for the commission of offences under Sections 452, 506(ii) and 195-A of the Penal Code, 1860 as well as under Section 3(2)(va) of the Scheduled Tribes (Prevention of Atrocities) Act, (SC/ST Act) 1989, A. Badharudeen, J. has observed that while considering the question as to whether an accused committed offence under Section 3(2)(va) of the SC/ST Act after trial, the word ‘knowing' or ‘knowledge', must be found based on evidence tendered and when considering the question of prima facie case for considering bail application, the knowledge shall be understood and inferred from the prosecution records.

The Court noted that the prosecution allegation is that the accused persons/appellants who are not members of Scheduled Caste or Scheduled Tribe community, criminally trespassed upon the house of the complainant, who belonged to the said community on 08.07.2022. and threatened her with dire consequences, if she would not be abstaining from proceeding with the Sessions trial pertaining to the death of her son. Further, apprehending arrest in the above case, one of the appellants filed bail application seeking pre-arrest bail before the Special Court, and the Court dismissed the said bail application referring to Section 18 and 18-A of the SC/ST Act.

The Court dealt with the following questions in the present appeal:

(i) Whether grant of anticipatory bail is specifically barred in cases involving commission of offences under the SC/ST Act, 1989 and to what extent relaxation to Section 18 and 18-A of the SC/ST Act is permissible?

The Court took note of the ruling in Vilas Pandurang Pawar v. State of Maharashtra, (2012) 8 SCC 795 , wherein the Court held that “the scope of Section 18 of the SC/ST Act read with Section 438 of the Code of Criminal Procedure is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST Act, no court shall entertain an application for anticipatory bail, unless it prima facie finds that such an offence is not made out” and observed that Section 18 of the SC/ST Act provides that nothing in Section 438 of the Code of Criminal Procedure shall apply in relation to any case involving the arrest of any person or accusation of an offence committed under this Act.

It further took note of the ruling in Shakuntla Devi v. Baljinder Singh, (2014) 15 SCC 521, wherein the Court held that “the High Court has not given any finding in the impugned order that an offence under the aforesaid Act is not made out against the respondent and has granted anticipatory bail, which is contrary to the provisions of Section 18 of the aforesaid Act as well as the aforesaid decision of this Court in Vilas Pandurang Pawar case. Hence, without going into the merits of the allegations made against the Respondent, we set aside the impugned order of the High Court granting bail to the respondent”.

The Court also observed that after the ruling in Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454 , SC/ST Act was amended, and Section 18-A got incorporated in the Act which provides that a preliminary enquiry shall not be required for registration of a first information report against any person; or the Investigating Officer shall not require approval for the arrest, if necessary, of any person, against whom an accusation has been made and no procedure other than that provided under this Act shall apply. Further, Section 18(2) provides that the provisions of Section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any court.

The Court further took note of the decision in Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727 and observed that the law is well settled that even after incorporation of Section 18-A there is no absolute bar in entertaining an application for anticipatory bail in cases alleging commission of offences under the SC/ST Act, the Court has the power to grant anticipatory bail if the prosecution allegations do not make a prima facie case.

Thus, there is no absolute bar in entertaining an application for anticipatory bail in cases alleging commission of offences under the SC/ST Act, provided there is no prima facie case.

(ii) How the word `knowing’ in Section 3(2)(va) of the SC/ST Act to be understood?

The Court observed that, by reading Section 3(2)(va), it is emphatically clear that commission of offences specified in the schedule would attract an offence under Section 3(2)(va) of the SC/ST Act, and to attract the said offence, commission of the offences punishable under the IPC, shown in the schedule, should be committed by the accused against a member of the SC/ST knowing that such person is a member of a SC/ST.

The Court further viewed that, now the question is, how the word “knowing”, in Section 3(2)(va) of the SC/ST Act to be understood, and referred to Section 8(c) of the SC/ST Act, which provides that “if the accused was having personal knowledge of the victim or his family, the Court shall presume that the accused was aware of the caste or tribal identity of the victim, unless the contrary is proved”. Thus, it was observed that while considering the question as to whether an accused committed offence under Section 3(2)(va) of the SC/ST Act after trial, the word ‘knowing' or ‘knowledge', must be found based on evidence tendered. When considering the question of prima facie case for the purpose of considering plea of bail during investigation and the period before trial, the knowledge shall be understood and inferred from the prosecution records.

The Court also viewed that on examination of the schedule in the SC/ST Act, Section 506 of IPC is an offence in the schedule and therefore commission of offence under it would attract an offence under Section 3(2)(va) of the SC/ST Act. Further, it was observed that the knowledge of the accused as to the status of the complainant as a member of the SC/ST community could be inferred prima facie from the prosecution materials. Therefore, prima facie commission of offence under Section 3(2)(va) of the SC/ST Act is made out. Thus, in this case Section 18 and 18-A of the SC/ST Act would apply and therefore, anticipatory bail cannot be granted.

[Abbas R.V v. State of Kerala, 2022 SCC OnLine Ker 4713, decided on 23.09.2022]


Advocates who appeared in this case :

Balamurali K.P., Advocate, Counsel for the Appellant;

P.V.Jeevesh, Advocate, Counsel for the Respondent;

Senior Public Prosecutor T.R.Renjith.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Addressing the issue of animal violence leading to the killing of community dogs in Kerala, the Division Bench of A.K. Jayasankaran Nambiar* and Gopinath P., JJ., expressed-unfortunate indeed are the circumstances leading up to the human-animal conflict situation that we are called upon to resolve in these proceedings.

Taking note of rising instances of dog bites in the State, the Court directed the State to provide immediate, effective, and free medical treatment to the citizen suffering injuries without prejudice to the right of the person concerned to separately seek compensation for the injuries, mental and/or physical, sustained by him/her, before the appropriate forum.

Noticeably, enraged by the huge number of cases of dog bites resulting in deaths and/or injuries in the State coupled with inaction on the part of the State, the citizens have begun taking law into their own hands and unleashing violence, bordering on massacre, on community dogs that they perceive to be dangerous.

Constitutional & Precedential Safeguards for Animal Welfare

Article 48A of the Constitution which deals with the Directive Principles of State Policy (DPoSP), speaks about the protection and improvement of environment and safeguarding of forests and wildlife. Similarly, Article 51A (g) dealing with the Fundamental Duties, obliges every citizen to protect and improve natural environment including forests, lakes, rivers, and wildlife, and to have compassion for living creatures, as also to develop scientific temper, humanism, and the spirit of inquiry and reform.

In NR Nair v. Union of India, (2001) 6 SCC 84, the Supreme Court breathed life into the aforesaid constitutional provisions by interpreting restrictions imposed in furtherance of the said provisions as “reasonable” vis-à-vis the freedoms guaranteed to citizens under Article 19. In Animal Welfare Board of India v. A. Nagaraja, (2014) 7 SCC 547, the Court interpreted the provisions of the Prevention of Cruelty to Animals Act, 1960 (the PCA Act) in the backdrop of the fundamental duties and held that animals should now be seen as having certain rights, corresponding to the duties that are prescribed for human beings. The PCA Act recognized five freedoms as inherent in all animals viz.

(i) freedom from hunger, thirst and malnutrition

(ii) freedom from fear and distress

(iii) freedom from physical and thermal discomfort

(iv) freedom from pain, injury and disease and

(v) freedom to express normal patterns of behaviour.

In the aforesaid case, the Court had held that the above five freedoms, which were recognised by the World Health Organization of Animal Health (OIE), were for animals, akin to the rights guaranteed to the citizens of our country under Part III of the Constitution.

Actions Taken by the State So Far

The report submitted by the Director of Animal Husbandry, State Animal Welfare Board, Government of Kerala indicates that the following measures are in various stages of implementation across the State:

(a) A mass anti-rabies vaccination program has been launched in relation to owned dogs. The vaccination of such dogs would be done at the camps with the cooperation of the Local Self Governments.

(b) A similar anti-rabies vaccination program is also proposed to be initiated from 20-09-2022 in relation to community dogs. To that end, the State has identified 170 hot spots where the vaccination will be administered through the Animal Husbandry Department.

(c) Total 37 Animal Birth Control centres have been identified across the State for the purposes of the Animal Birth Control – Anti Rabies program.

(d) The list of veterinary hospitals where emergency night services are available together with 24-hour facilities have been put up on the website of the Department along with the respective contact numbers.

(e) The Local Self Government Department will be constructing animal shelters/pounds for dogs and the guidelines prescribed by the AWBI for the construction of animal shelters will be adhered to.

(f) It is proposed to conduct Awareness programs on responsible dog ownership, compulsory vaccination and licensing, post-bite management and treatment, adoption etc. in Schools, residents’ associations, etc. through the Animal Husbandry Media division.

Directions to the State

Taking note of the reports that suggest that there may be dogs afflicted with Rabies among the community dogs in the State, the Court directed the State to forthwith take steps to identify dogs suspected to be infected with Rabies, and seize and remove them to a place of isolation within the limits of the local authority concerned, if need be, by resorting to the procedure of tranquilizing them under veterinary supervision. The Court also directed,

“Until concrete measures to our satisfaction are put in place by the State administration to avoid situations of human-animal conflict, on every such occasion where a citizen suffers injury, the State shall provide immediate, effective and free medical treatment to the said citizen at the Government hospitals, including those attached to the Government Medical Colleges in the State.”

In this regard, the State is directed to ensure that the hospitals concerned are adequately stocked with medicines and medical equipment required for such treatment. The Court added that the said treatment shall also be without prejudice to the right of the person concerned to separately seek compensation from the State for the injuries, mental and/or physical, sustained by him/her, before the appropriate forum. Additionally, the Court issued the following directions:

i. “The State Police Chief shall also ensure that incidents of human violence against animals, including community dogs, as also incidents of violence against persons feeding such community dogs are taken cognizance of, promptly investigated into, and immediate and appropriate action initiated against the perpetrators of such violent acts.

ii. The Station House Officer of every police station in the State shall take prompt action taking note of the Circular issued by the State Police Chief and the directions contained in this order dated 16-09-2022.”

Lastly, the Court clarified that it intends to oversee the implementation of the various measures suggested by the State administration on a weekly basis. The matter is posted on 23-09-2022 for further hearing.

[In Re: Bruno (Suo Motu) v. Union of India, 2022 SCC OnLine Ker 4644, decided on 16-09-2022]

*Judgment by: Justice A.K. Jayasankaran Nambiar.


*Kamini Sharma, Editorial Assistant has put this report together.

Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: While addressing the menace of dog bites in Kerala and the incidents of unauthorised killing of community dogs, the Division Bench of A.K. Jayasankaran Nambiar and Gopinath P, JJ., directed the State Police Chief to issue circular clarifying that—

While the State Administration is taking necessary steps to contain the incidents of dog bites, the citizenry shall also refrain from taking law into their own hands by inflicting unnecessary harm on community dogs.

Taking note of the instances of dog bites across the State, the Court had convened a special sitting to look into the matter. On enquiring with the State as to the steps being taken by the State Administration to address this pressing issue, Asok M. Cherian, Additional Advocate General informed the Court that the State Administration has already taken certain decisions, and a detailed report regarding it will be furnished before this Court by 16-09-2022.

Considering the above, the Court pointed out various earlier orders issued by the Court to monitor the implementation of the Animal Birth Control procedure throughout the State with a view to keep a check on the proliferation of community dogs, and for ensuring that they were duly vaccinated against infectious diseases.

Noticeably, the Court, on earlier occasions, had issued the following orders to address the animal menace in the State:

  • By an order dated 02-08-2021, the Court had-while adjudicating the issue of subjecting community dogs in the Thrikkakara Municipality to the Animal Birth Control procedure-directed the Municipality to identify areas within its geographical limits where the community dogs could be rehabilitated and sheltered.

  • On 29-10-2021, the Court directed the State Animal Welfare Board to assess the infrastructural facilities available within the territorial limits of all local authorities in the State for carrying out Animal Birth Control measures and to suggest measures for the augmentation of such facilities under each of those local authorities.

  • On 08-07-2022, the Court directed the State Animal Welfare Board to publish the list of Veterinary Hospitals having night emergency services available on its website and to collect the telephone numbers of each of these centres, and to ensure that the Hospitals were functioning round-the-clock.

Hence, the Court directed that in the report that is proposed to be filed on 16-09-2022, the State shall also mention the steps taken by it pursuant to the aforesaid earlier orders while narrating the steps currently proposed to be taken to tackle the menace of dog bites. The Court said,

“The State Administration must remind itself of the fact that in its role as a welfare State and as parens patriae of the citizenry it is obliged to protect the citizens from the attack of ferocious dogs by identifying and containing such dogs and removing them from public places.”

On being apprised of various instances of unauthorised killing of community dogs in the State, the Court-with a view to balancing the rights and interests of our citizens vis-a-vis those of animals-directed the State to cause suitable public instructions to be issued through the State Police Chief, clarifying that while the State Administration is taking necessary steps to contain the incidents of dog bites, the citizenry shall also refrain from taking law into their own hands by inflicting unnecessary harm on community dogs. Additionally, the Court also directed the State to file a copy of the Circular so issued with the report to be filed on 16-09-2022.

The matter is posted on 16-09-2022.

[In Re: Bruno (Suo Motu) Public Interest Litigation v. Union of India, 2022 SCC OnLine Ker 4619, decided on 14-09-2022]


*Kamini Sharma, Editorial Assistant has put this report together.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In a disturbing case where a German National, who came to India on a 1-year visa for NGO volunteer work alleged of being sexually harassed and arbitrarily served with an exit permit to leave India, N. Nagaresh, J., issued notice to the General Secretary of the NGO and imposed an interim stay on the exit permit.

The petitioner, who was working as a volunteer teacher at an NGO named Sister Hatune Foundation, approached the Kerala High Court alleging sexual harassment against the NGO’s General Secretary (the respondent hereinafter). The woman alleged that the General Secretary of the foundation made sexual advances toward her and committed sexual offences with other girl students of the institution. Apart from that, she also alleged that the General Secretary wrongfully collected fees for imparting lessons to the students, which was not contemplated by the foundation and made the petitioner to live in unhygienic and unreasonable conditions.

The petitioner contended that when she tried to question the conduct of the respondent, he became inimical towards her and fabricated a termination letter of the foundation and conveyed it to the Foreigner Regional Registration Offices (FRRO) who unilaterally, arbitrarily and illegally cancelled her visa which is to be expired on 06-03-2023 without conducting an enquiry or without hearing the petitioner. Resultantly, the petitioner was asked to leave India on or before September 10.

Aggrieved by the premature cancellation of her visa, the petitioner contended that such premature cancellation violates natural justice and United Nations International Covenant on Civil and Political Rights and infringes Article 21 rights guaranteed by the Constitution.

Hence, the petitioner urged the Court to grant urgent interim relief staying the operation of the exit permit and initiate criminal proceedings against the respondent for various criminal offences including Sexual Harassment.

In the backdrop of the above, the Court issued notice to the General Secretary of the NGO, the Central Government, Bureau of Immigration and FRRO. Further, the Court also stayed the exit permit and the FRRO’s order nullifying the petitioner’s visa. The matter is listed on 23-09-2022 for further hearing.

[X v. Union of India, 2022 SCC OnLine Ker 4529, order dated 06-09-2022]


Advocates who appeared in this case :

M/s. Raghul Sudheesh, K.J.Glaxon, J.Lakshmi, Elizabeth Mathew, Amal Jees, Alex, Bini Das, and K.K.Subeesh, Counsels for the Petitioner;

Assistant Solicitor General of India, Counsels for the Respondents.


*Kamini Sharma, Editorial Assistant has put this report together.

Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: While adjudicating a divorce case, the Division Bench of A. Muhamed Mustaque and Sophy Thomas*, JJ., raised concern about the rise of live-in-relationships just to say goodbye when they fall apart. Expressing concern about the alarming increase of divorce cases in the State, the Court remarked,

“The wails and screams coming out of disturbed and destroyed families are liable to shake the conscience of the society as a whole. When warring couples, deserted children, and desperate divorcees occupy the majority of our population, no doubt it will adversely affect the tranquillity of our social life, and our society will have a stunted growth.”

A husband, who lost his case for divorce on the ground of matrimonial cruelties had approached the Court to assail the Family Court's order. The husband appellant contended that though they were leading a very cordial and smooth marital relationship till 2018, thereafter the respondent developed some behavioural abnormalities, and she often picked up quarrels with him for no reason. He further alleged that because of the indifferent, abusive, and violent behavior of his wife (the respondent herein), he became mentally stressed and physically ill.

Mental Cruelty

The Court, on analysing the facts and evidence, found that the appellant failed to prove the allegations of cruelty against the respondent so as to dissolve their marriage for the following reasons:

  • As a responsible husband, the appellant was bound to know the reason for such behavioural changes in his wife, whether it be physical, mental, or psychological. He has no case that he ever took his wife to a psychologist or psychiatrist to know the reason for her behavioural abnormalities.

  • The appellant did not disclose/admit that the couple had a love marriage, though his own mother and his own close relative admitted that fact before Court.

  • According to the respondent, her marital life with the appellant was so smooth till 2018 and thereafter, he was trying to avoid her and her children.

  • The mother and close relatives of the appellant categorically deposed that in the year 2017, the appellant developed some illicit intimacy with a lady named Anjali, and thereafter, he wanted to avoid his wife, children, and even his own mother.

  • In such a scenario, the normal human reactions or responses from a wife, on knowing that her husband was having illicit connection with another lady, could not be termed as behavioural abnormality or cruelty from the part of the wife, so as to dissolve their marriage.

  • The appellant was not hesitant, even to question the chastity of his own aged mother, as she was supporting the respondent.

In the light of the aforesaid, the Court opined that the appellant wanted to avoid the respondent and her children to continue his unholy alliance with another woman. The Court noted,

“When the wife had reasonable grounds to suspect the chastity or fidelity of her husband, and if she questions him, or expresses her deep pain and sorrow before him, it cannot be termed as a behavioural abnormality, as it is the natural human conduct of a normal wife.”

Hence, rejecting the appellant's case on the ground of mental cruelty, the Court said,

Courts cannot come to the aid of an erring person to legalise his activities, which are per se illegal. If the husband having unholy alliance with another woman wants to avoid his lawfully wedded wife and his three little children, he cannot seek the assistance of a court of law to get his present relationship legalised by dissolving his lawful marriage, without any valid reasons for the same.”

Non-Cohabitation as a Ground for Divorce

Similarly, considering the respondent's willingness to save the marriage and resume her marital life with her husband, the Court rejected the appellant's case on the ground of non-co-habitation for a long time. The Court relied on Uthara v. Dr.Sivapriyan, 2022 SCC OnLine Ker 921, to hold that non-co-habitation however long it may be, if it was due to deliberate avoidance or due to pendency of cases filed by one party, the other party cannot be found fault with, when that party is still ready to continue his/her matrimonial life, and no grounds recognized by law are established against that party to break their nuptial tie.

Verdict

Emphasizing on the present trend to break the nuptial tie on flimsy or selfish reasons, or for extra-marital relationships, even unmindful of their children, the Court said,

“Now-a-days, the younger generation thinks that marriage is an evil that could be avoided to enjoy free life without any liabilities or obligations. They would expand the word ‘WIFE' as ‘Worry Invited For Ever' substituting the old concept of ‘Wise Investment For Ever'.”

The Court noted that law and religion consider marriage as an institution by itself and parties to the marriage are not permitted to walk away from that relationship unilaterally, unless and until they satisfy the legal requirements to dissolve their marriage through a court of law or in accordance with the personal law which govern them.

Hence, considering that the respondent still wants to live with her husband and live together along with their children, the Court directed that if the appellant is ready to come back to his wife and children, they are ready to accept him, it could not be said that the chances of an amicable reunion are foreclosed forever.

Resultantly, the Court upheld the finding of the Family Court that the appellant is not entitled to a decree of divorce on the ground of matrimonial cruelties.

[Libin Varghese v. Rajani Anna Mathew, Mat. Appeal No. 456 of 2020, decided on 24-08-2022]

*Judgment by: Justice Sophy Thomas


Advocates who appeared in this case :

Mathew Kuriakose, J. Krishnakumar (Adoor), and Moni George, Advocates, Counsels for the Appellant;

B.J. John Prakash, P. Pramel, Nimmy Shaji, and Balasubramaniam R., Advocates, Counsels for the Respondent.


*Kamini Sharma, Editorial Assistant has put this report together.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In a PIL seeking extension of facilities to every person with a disability in need of special assistance irrespective of the percentage of disability, the Division Bench of S. Manikumar CJ., and Shaji P. Chaly, J., issued notice to Union Government and the State of Kerala.

The petitioner, a person with 25% learning disability, had approached the Court with an allegation that the disability criteria for the students in need of special assistance in the State Government schools for the SSLC (Secondary School Leaving Certificate) and Higher Secondary Examinations is still 40% or above and that the State Government has not framed any rules for the differently abled students as directed by the High Court in Blessen Baby v. State of Kerala, 2020 SCC OnLine Ker 714.

Noticeably, when the petitioner was studying in Class X, his request for a scribe as per Section 4(2) and 17(i) of the Right of Persons with Disabilities Act, 2016 for the public examination was rejected by the authorities on the ground that the disability should be 40% or above for the assistance of a scribe for the SSLC examination for the year 2020.

While hearing the petitioner, at that time, the Court in Blessen Baby case (supra) had directed the State Government to re-visit the guidelines in vogue issued by the Government of Kerala and to issue fresh guidelines, after taking note of the guidelines issued or to be issued by the Ministry of Social Justice and Empowerment, Union Government in tune with the directions issued by the Supreme Court in Vikash Kumar v. Union Public Service Commission, 2021 SCC Online SC 84.

Pursuant to the directions of the Court, the petitioner had passed his Xth and XIIth standard examinations with the aid of a scribe.

In Avni Prakash v. National Testing Agency (NTA), 2021 SCC OnLine SC 1112, the Supreme Court observed that despite the clarification of the position in law in Vikash Kumar (supra), the law continues to be violated and NTA has continued to restrict the grant of facilities only to Persons with Benchmark Disability (PwBD). To address the hardships faced by the persons with disability, the Supreme Court issued the following directions:

  • “The facility of reservation in terms of Section 32 of the Rights of Persons with Disability (RPwD) Act, 2016 is available to PwBD. Other facilities contemplated by the RPwD Act, 2016 for PwD cannot be so restricted by an administrative order which would be contrary to the provisions of the statute.

  • Individual injustices originating in a wrongful denial of rights and entitlements prescribed under the law cannot be sent into oblivion on the ground that these are a necessary consequence of a competitive examination.

  • Having due regard to the decision of this Court in Vikash Kumar (supra) and the statutory provisions contained in the RPwD Act, 2016, facilities which are provided by the law to PwD shall not be constricted by reading in the higher threshold prescribed for PwBD;

  • By way of abundant caution, it is clarified that for the purpose of availing of the reservation under Section 32 of the RPwD Act, 2016 or an upper age relaxation as contemplated in the provisions, the concept of benchmark disability continues to apply; and

  • The persons working for the first respondent and exam centres like that of the second respondent should be sensitised and trained, on a regular basis, to deal with requirements of reasonable accommodation raised by PwDs.”

On the contention of the State that it had already issued guidelines in the matter of extending concession to the candidates with special needs having 40% or more disability, the petitioner submitted that irrespective of the percentage of disability, the benefits of the earlier judgment of the Court may be extended to all the students in need of special assistance in SSLC as well as first year and second year Higher Secondary examinations.

Considering the above, the Court had issued notice to the Union Government and the State of Kerala.

[Blessen Baby v. Union of India, 2022 SCC OnLine Ker 4269, decided on 04-08-2022]


Advocates who appeared in this case :

Mr. Sheji P. Abraham, learned counsel for the petitioner;

S. Manu, learned ASGI, Sri. N. Manoj Kumar, learned State Attorney.


*Kamini Sharma, Editorial Assistant has put this report together.

Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: In a case relating to talaq as per Muslim personal law and bigamy, A. Muhamed Mustaque, J. held that the Family Courts have no jurisdiction to restrain a person from pronouncing talaq or conducting a second marriage as per personal law. The Court remarked,

“The Court has no role in restraining the parties invoking their personal law remedies. The Court should not forget the mandate of Article 25 of the Constitution, which not only allows one to profess religion but also to practice.”

The petitioner-husband, a Muslim by faith, had married the respondent in accordance with the Muslim religious rites and ceremonies. Later on, when the marital relationship became strained, he initiated steps to pronounce Talaq and pronounced first and second Talaq. However, before he could pronounce irrevocable Talaq, he had been restrained by an order of temporary injunction by the Family Court.

The said order had been passed at the instance of the wife. The wife had also filed an application restraining her husband to conduct a second marriage which was also allowed by the Family Court. Aggrieved thereby, the petitioner-husband had assailed the impugned order of the Family Court.

Observing that restraining someone from acting in accordance with personal belief and practice would amount to encroaching his constitutionally protected rights, the Court stated that no doubt, any aggrieved can challenge an action emanating out of the exercise of faith and practice, but that stage would arise only after the performance of the act. Holding that the jurisdiction of the Court is limited in these kinds of processes, the Court expressed,

“Family Court cannot restrain a person performing his act in accordance with personal law.”

The Court noted that the act complained—invoking irrevocable invocation of Talaq—was yet to come into existence; and it was only after the completion of the process and the procedure act qua the Talaq, that it could be said whether the said act was in accordance with the procedure as prescribed under the personal law or not. Displeased by the manner the Family Court had dealt with the matter, the Court said that it is unfortunate that before the act could be done, the petitioner had been restrained from acting in accordance with his personal belief and practice.

On the order restraining the petitioner from conducting second marriage, the Court expressed,

“Right to marry more than one person at a time is prescribed under the personal law. If the law ensures such protection, it is not for the Court to decide that one person should not act in accordance with the personal conscious and belief in accordance with his religious practices.”

Reminding the Family Court of the limited jurisdiction, the Court stated that the courts have no role to restrain or regulate one’s behavior or decision in accordance with the personal law guaranteed.

In the light of the above, the Court held that the impugned orders were without any justification and jurisdiction. Accordingly, the Court set aside both the orders. At the same time, the Court clarified that if Talaq is not exercised in accordance with the law, the respondent-wife can approach the competent Court to redress her grievances.

[Anvarudeen v. Sabina, OP (FC) No. 394 of 2022, decided on 17-08-2022]


Advocates who appeared in this case :

Majida S and Ajikahn M, Advocates, for the Petitioner;

Suresh Kumar M.T., R. Ranjith, Smitha Philipose, Manjusha K, and Sreelakshmi Sabu, Advocates, for the Respondent.


*Kamini Sharma, Editorial Assistant has put this report together.

Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: In a case challenging the validity of Rule 12 of the Right to Information (Subordinate Courts and Tribunals) Rules, 2006, Murali Purushothaman, J., held that Rule 12 is not inconsistent with Article 19(1)(a) of the Constitution and the provisions of the Right to Information Act, 2005 (‘RTI Act').

The Court said that the RTI should not be resorted to obtain the copies of ‘A’ diary of civil and criminal postings of the cases since the same can be obtained by filing copy application in the court under the relevant Rules of Practice. The Court expressed that,

“Since the petitioner had been informed that the copies of ”A’ diary of civil and criminal postings of the cases’ can be obtained on filing copy applications, there is no denial or refusal of information and none of the fundamental rights of the petitioner have been infringed.”

The petitioner, a retired Class I officer and presently a practicing lawyer had filed an application under the Right to Information Act, 2005 seeking copies of ”A’ diary of civil and criminal postings of the cases for the period from 01-12-2021 to 14-04-2022.

The said application was rejected by the Public Information Officer (PIO) stating that the information sought can be obtained by submitting copy application and besides, information is already available on the Court website, the Court's notice board, and on the Kiosk of the District Court.

The first appeal preferred by the petitioner under Section 19 (2) of the RTI Act was dismissed on the ground that the information sought by the petitioner relates to judicial proceedings and the High Court as per Rule 12 of the Right to Information (Subordinate Courts and Tribunals) Rules, 2006 has directed all Subordinate Courts in the State that no information relating to any Judicial Proceedings shall be disclosed under the said Act.

Aggrieved thereby, the petitioner had filed the instant petition to assail both; the order of the PIO and the order dismissing the first appeal. Besides, the petitioner had sought to quash Rule 12 of the Rules, 2006 contending that the said provision is in violation of the fundamental right of the petitioner guaranteed under Article 19(1)(a) of the Constitution and the provisions of the RTI Act.

Pertinently, ‘A’ diary is a record of the sum and substance of the judicial work of each case taken up for consideration on a day, signed by the Presiding Officer.

Relying on Chief Information Commissioner v. High Court of Gujarat, (2020) 4 SCC 702, the Court observed that when the information can be obtained through the mechanism provided under the rules made by the High Court, the said mechanism should be preserved and followed and the provisions of the RTI Act shall not be resorted to. Since the copies of ”A’ diary of civil and criminal postings of the cases’ could be obtained by the petitioner on filing applications under the Rules of Practice, the Court opined that the provisions of the RTI Act should not be resorted to.

Whether Rule 12 inconsistent with RTI Act

The Criminal Rules of Practice, Kerala, 1982 and the Civil Rules of Practice, Kerala, 1971 were framed by the High Court before the enactment of the RTI Act and provide for the grant of copies of any proceedings or documents filed or in the custody of the Court. After the enactment of the RTI Act, to carry out the provisions of the said Act, the High Court has made the Rules, 2006 — in exercise of the powers conferred under sub-section (1) of Section 28 of the RTI Act read with Article 235 of the Constitution—incorporating provisions for providing information not covered by Criminal Rules of Practice and the Civil Rules of Practice.

The Court noted that since Criminal Rules of Practice and the Civil Rules of Practice provide for provisions for the grant of copies of any proceedings or documents filed or in the custody of the Court, the High Court, under Rule 12 of the Rules, 2006, has provided that no application for information or document relating to any judicial proceedings held by and under the control of the public authority, shall be entertained by the PIO. Hence, the Court held that the Rules, 2006 provide for the mode of furnishing information and are consistent with the provisions of the RTI Act.

Further, the Court observed that since the petitioner had been informed that the copies of ”A’ diary of civil and criminal postings of the cases’ can be obtained on filing copy applications, there is no denial or refusal of information and none of the fundamental rights of the petitioner have been infringed.

Consequently, the writ petition was dismissed. Additionally, considering that the PIO has referred to some non-existing provisions to reject the RTI application, as a word of caution, the Court remarked,

“The Public Information Officer has stated that it is not possible to give information in terms of Sections 2.8(V), 3(a), and 8B of the RTI Act. No such Sections could be traced in the RTI Act. While disposing of request for information, if any provisions of the law are to be referred to, the Public Information Officers shall endeavour to quote the correct provisions.”

[M.P. Chothy v. Registrar General, High Court of Kerala, WP(C) No. 23224 of 2022, decided on 20-07-2022]


Advocates who appeared in this case :

M.P. Chothy (in-person), Advocate, for the Petitioner.


*Kamini Sharma, Editorial Assistant has put this report together.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: N. Nagaresh, J., directed the Geologist of Department of mining & geology, Manjeri to release wrongfully seized vehicles of the petitioners which were seized alleging illegal trafficking of granite stones.

The petitioners, a father, and a son, are owners of the vehicles which were seized by the Station House Officer, alleging that the vehicles were illegally transporting granite stones from a granite crusher without having valid passes.

On the contrary, the petitioners contended that they were holding valid Electronic Mineral Transit Passes issued by the Geologist on the date of seizure which made the continued seizure of the vehicles illegal and unwarranted.

The petitioners alleged that though they had submitted representations before the Geologist, Department of mining & geology, Manjeri, no steps had been taken to release the vehicles, and the continued detention would damage the vehicles and put the petitioners in untold difficulties.

Contesting the petition, the State contended that when the vehicles were seized, the drivers did not show any Mineral Transit Passes and it was in such circumstances that the vehicles were seized.

The Court noted that the vehicles were seized on 28-07-2022 at 11.00 a.m while the Mineral Transit Passes issued by the Geologist indicated that the Passes were generated at 10.19 a.m and 10.23 a.m respectively on 28-07-2022. Therefore, the Court held that the vehicles had valid Mineral Transit Passes at the time of seizure and the detention of the vehicles was unwarranted.

Accordingly, the writ petition is disposed of directing the Geologist was directed to release the vehicles of the petitioners forthwith, after obtaining an undertaking from the petitioner that the vehicles will not be alienated pending the proceedings and will be produced as and when required.

[Stephen Rodrigues v. Geologist, 2022 SCC OnLine Ker 4001, decided on 08-08-2022]


Advocates who appeared in this case :

K. Aboobacker Sidheeque, Advocate, for the Petitioner;

G.P. Syamanthak B S, Advocate, for the Respondents.


*Kamini Sharma, Editorial Assistant has put this report together.

Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: V. G. Arun, J., allowed medical termination of 28-week pregnancy of a 14-year-old girl.

The mother of the victim had approached the Court seeking permission to abort the victim's 28 weeks of pregnancy. Noticeably, the victim herein is a minor girl aged 14 years.

By its earlier order, the Court had directed the Superintendent of Medical College Hospital to constitute a Medical Board of competent medical practitioners to examine the victim and file a report before the Court.

Accordingly, the Medical Board, after examining the child, opined,

“Gestational age by Ultrasound is 27 weeks 5 days and correlated with clinical findings. Anguish caused by the continuation of pregnancy can be presumed to cause a grave injury to the mental health of 14-year-old unmarried girl. Hence Medical Board is recommending MTP.”

In the light of the suggestion of the Medical Board recommending medical termination of pregnancy (MTP) as continuation of pregnancy may cause grave injury to the mental health of the girl, the Court issued the following interim directions:

  • The petitioner is permitted to get the victim girl's pregnancy terminated at a Government Hospital.

  • On production of this order, the Superintendent of the hospital shall take immediate measures to constitute a medical team for conducting the procedure.

  • The petitioner shall file an appropriate undertaking, authorising the medical team to conduct the surgery at her risk.

  • If the baby is alive at birth, the hospital shall ensure that the baby is offered the best medical treatment available so that it develops into a healthy child;

  • If the petitioner is not willing to assume the responsibility of the baby, the State and its agencies shall assume full responsibility and offer medical support and facilities to the child, as may be reasonably feasible, keeping in mind the best interests of the child and the statutory provisions in the Juvenile Justice (Care and Protection of Children) Act, 2015.

[X v. Union of India, W.P.(C) No.26103 of 2022, decided on 16-08-2022]


Advocates who appeared in this case :

M/S. Babu Paul & Murali Manohar, Advocates, For the Petitioner.


*Kamini Sharma, Editorial Assistant has put this report together.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In a significant decision P. V. Kunhikrishnan, J., directed the Registrar of Births and Deaths to expunge the father’s name of the petitioner 1 from his birth certificate and issue a new certificate showing the name of his mother only as a single parent.

Background

Petitioner 2 is the mother of petitioner 1 who had conceived her son (petitioner 1) when she was a minor under a mysterious circumstance by an unidentified person. Therefore, petitioner 1 had approached the High Court seeking directions to the Registrar of Births and Deaths (the Registrar) to expunge and remove his father’s name from the birth register and issue a certificate showing the mother’s name only as a single parent. Petitioner 1 contended that his father’s name is given differently in three different documents, referring it as “Z”, “Z1” and “Z2”, which creates great uncertainty and difficulty.

Petitioners’ Stand

Petitioner 1 submitted that Section 15 of the Registration of Births and Deaths Act, 1969 gives power to the Registrar to correct the entries, if it is proved that any entry of a birth or death in any register kept by him is erroneous in form or substance or has been fraudulently or improperly made. Similarly, Rule 11(2) of the Kerala Registration of Births and Deaths Rules, 1999 states that if any person asserts that any entry in the register of births and deaths is erroneous in substance, the Registrar may correct the entry in the manner prescribed under Section 15 upon production by that person, a declaration setting forth the nature of the error and true facts of the case made by two credible persons having knowledge of the facts of the case.

Moreover, complying with the directions issued by the Supreme Court in ABC v. State (NCT of Delhi), 2015 (10) SCC 1, the Central Government also issued a circular to all Chief Registrar of Births and Deaths in the country in this regard directing that the name of the single parent will be written in the birth record, and the name of the other parent must be left blank if such requests are made.

Judicial Pronouncements

In ABC v. State (NCT of Delhi), 2015 (10) SCC 1, the Supreme Court was to answer whether it is imperative for an unwed mother to specifically notify that the putative father of the child to whom she has given birth, in her petition for appointment as the guardian of her child. The Court answered that if a single parent/unwed mother applies for the issuance of a Birth Certificate for a child born from her womb, the Authorities concerned may only require her to furnish an affidavit to this effect, and must thereupon issue the Birth Certificate unless there is a Court direction to the contrary.

Relying on Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1, the Court held that there is no doubt that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution and it is important to recognize that reproductive choice can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity, and bodily integrity should be respected.

Reliance was also placed on the decision of Kerala High Court itself in XXXX v. State of Kerala, 2021 SCC OnLine Ker 3285, wherein the High Court, while considering the situation of a single parent/ unwed mother getting conceived by Assisted Reproductive Technology (ART), directed the government to bring out a separate form which does not contain a field requiring the name and other details of the father.

Findings and Conclusion

Hence, the Court opined that it is the right of a person to include his mother’s name alone in the birth certificate, identity certificates, and other documents as there are children of rape victims and children of unwed mothers and their right to privacy, dignity, and liberty cannot be curtailed by any authority.

Citing a Mahabharata reference the Court expressed,

“We do not want a society with characters like “Karna,” who curse his life because of the insult he faced for not knowing the whereabouts of his parents. We want the real brave “Karnas’ who was the real hero and fighter in “Mahabharatha”. Our Constitution and the constitutional Courts will protect all of them and the new age “Karnas” can live like any other citizen with dignity and pride.”

Consequently, the Court issued following directions:

1. The Registrar was directed to expunge and remove the name of the father of petitioner 1 from the Birth Register maintained at his office and issue a certificate showing the name of the mother only as a single parent, if such a request is made by the petitioners. The Court directed that the needful be done as expeditiously as possible, at any rate, within two weeks.

2. On the petitioners producing a corrected certificate issued by the Registrar, respondents 2 to 8 are directed to give effect to the consequential expunge of the name of the father from their official records and databases.

3. The Registry is directed not to mention the names of the petitioners in the cause title of the judgment while uploading it to the official site. However, the registry is also directed to give a sufficient number of certified copies of the judgment along with the details of the petitioners in a separate sealed cover if a copy application is filed for that purpose by the petitioners for production before the respondents.

[X v. Registrar of Births and Deaths, 2022 SCC OnLine Ker 3770, decided on 19-07-2022]


Advocates who appeared in this case :

Atul Sohan, Sreeja Sohan K., K.V.Sohan, Vinai John, and R.Reji (Attingal) and V.K.Sunil, Advocates, for the Petitioners;

The Registrar of Births and Deaths, Pathanamthitta Municipality (Party-In-Person), for the Respondents;

ASG Manu S., Advocate, for the Union of India;

SC Jose Joseph, Advocate, for the Income Tax Department, Kerala;

SC Deepu Lal Mohan, Advocate, for the Kerala Election Commission;

P.K. Ravindranatha Menon (Sr.).

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In an interesting case Ziyad Rahman A.A., J., directed the District Police Chief to take action against the e-commerce company, Flipkart for delivering wrong product.

The petitioner had ordered a laptop with specification of “Acer Aspire 7 Core i5, 9th Gen (8GB/512 GB SSD/Windows)” for a total consideration of Rs.53,890 through an e-commerce entity named Flipkart, operated by Filpkart Internet Pvt. Ltd. However, the product received by him was a totally different one.

The grievance of the petitioner was that though he had submitted a complaint before the Station House Officer (SHO), Kaduthuruthy Police Station, no action was taken with regard to his complaint. Aggrieved by the inaction of the SHO, the petitioner approached the District Police Chief with his grievances.

In the instant petition, the petitioner had sought consideration of the said complaint by the District Police Chief.

Considering the arguments advanced by the petitioner, the Court directed the District Police Chief to take up the complaint and issue proper direction to the officers concerned to redress the grievance of the petitioner as expeditiously as possible. The Court added that an appropriate decision shall be taken within a period of one month.

[Aby Thomas v. Director General of Police, 2022 SCC OnLine Ker 3732, decided on 23-06-2022]


Advocates who appeared in this case :

Arun Mathew Vadakkan and Don Paul, Advocates, for the Petitioner;

Public Prosecutor Sudheer Gopalakrishnan, Advocate, for the Respondent.


*Kamini Sharma, Editorial Assistant has reported this brief.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In a POCSO case, Kauser Edappagath, J., upheld the Trial Court’s judgment convicting a father for sexually assaulting his minor daughter.  

The appellant-accused had assailed the Trial Court’s judgment of conviction and sentence convicting the appellant for an offence punishable under Section 9(n) read with Section 10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) for sexually assaulting his 15 years old daughter.   

The Trial Court convicted the appellant and imposed a sentence of five years’ rigorous imprisonment with a fine of Rs.25,000.  

Grievances of the Parties  

Assailing the impugned order of the Trial Court, the appellant contended that the conviction was based on the uncorroborated testimony of the child witness which suffered from contradictions and omissions. Further, the appellant alleged that there was inordinate delay in reporting the matter and lodging the FIR and that the age of the victim had not been legally proved.  

The victim deposed that even at the age of 7 years, the accused had sexually abused her by making her lie on his body and also touched her private parts. The victim submitted that thereafter the appellant went to Gulf and after returning, he regularly assaulted her sexually by catching her breast, buttocks, and private parts at night.  

The deposition of the victim was corroborated by her mother by admitting that the accused is her husband and after their marriage, the accused disturbed her elder sister due to which she along with the accused started to live separately. She also deposed that, on 30-05-2011 at 11 p.m. the appellant sexually assaulted the victim when she was sleeping and she along with the victim pushed him out of the house and closed the door. 

The victim also alleged that the appellant had made a hole in the bathroom to see her taking bath which was corroborated by her mother.  

Observations and Findings 

The Court noted that even though the victim was cross-examined at length by the accused, nothing tangible could be extracted from her to create any shadow of a doubt that she is not a truthful witness. The Court opined, 

“She gave a reliable, consistent, and credible version of the crime which inspires confidence. It is settled that, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. It is equally settled that the statement of a child witness should be scrutinized with great care and caution.” 

Relying on Hari Om v. State of Uttar Pradesh, (2021) 4 SCC 345, the Court held that corroboration of the testimony of the child witness is not a rule but a measure of caution and prudence is a well-accepted principle and in the instant case there is absolutely no ground for doubting the veracity of the victim. Similarly, the Court relied on State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, to hold that the courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.  

With regard to the contention of inordinate delay in reporting the matter, the Court held that delay in the sexual offence has to be viewed differently. The Court expressed, 

“The delay in a case of sexual assault cannot be equated with a delay in a case involving other offences since several factors weigh on the mind of the victim and members of her family. In a tradition-bound society like ours, particularly in rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there was a delay in lodging the FIR.” 

Hence, the Court held that failure to mention the exact time of occurrence concerning the incident which happened when the victim was aged 7 years did not create doubt in the prosecution case, particularly when the victim had clearly stated that she was very ashamed to complain about such acts against her father before others.  

Conclusion  

Thus, the Court concluded that there was nothing on record to doubt about the genesis or genuineness of the prosecution case on account of the alleged delay. With regard to contention that the victim’s age had not been proved before the Trial Court, the Court observed that the appellant had not raised such contentions before the Court below, hence, the same could not be entertained in appeal. The Court remarked,  

“The accused is none other than the father who is supposed to know the age of the victim. The evidence of the victim and her mother would show that the victim was a minor at the time of the incident. She clearly deposed that the accused sexually exploited her since she was seven years old. There is no challenge to the said evidence.” 

Lastly, on the question of sentence, the Court observed that the appellant was sentenced only to the mandatory minimum period of punishment; hence, considering the entire facts and circumstances of the case, the Court held that the sentence imposed by the Trial Court was absolutely reasonable.  

Consequently, the conviction and the sentence passed by the Trial Court were confirmed. Accordingly, the appeal was dismissed. 

[x v. State of Kerala, Crl. A. No. 649 of 2021, decided on 01-07-2022]  


Appearance by:  

For the Appellant: Advocates T.U. Sujith Kumar and Dinesh G Warrier 

For the State:  Smt. Ambika Devi S, Special GP (Atrocities Against Women and Children) and Smt. Bindu O.V.  PP 


*Kamini Sharma, Editorial Assistant has put this report together 

 

 

Supreme Court
Case BriefsSupreme Court

Supreme Court: In a significant case, the Division Bench of Indira Banerjee and J.K. Maheshwari, JJ., upheld pre-arrest bail of actor-producer Vijay Babu who was alleged to have committed rape of an actress.

The Court, however, modified the bail condition that the accused can be interrogated for the next seven days i.e., from 27-06-2022 till 03-07-2022, and directed that the accused may be interrogated as and when necessary, even after 03-07-2022.

Vijay Babu was alleged to have committed rape on the victim, a struggling actress, with the promise of a role in a movie and also of marriage. He has allegedly even caused physical injuries to her. The prosecution further alleged that on coming to know about the registration of the crime, the applicant went abroad in an attempt to flee from the law.

Pertinently, by the impugned order, Single Judge of the Kerala High Court had granted pre-arrest bail to the accused by holding that there is no restriction in law that pre-arrest bail cannot be granted to a person sitting abroad; which was doubted by a co-equal Bench of the High Court. Consequently, the question as to whether pre-arrest bail can be granted to a person sitting abroad was referred to a larger Bench. Though the Supreme Court did not refer to the aforementioned question, it has upheld the grant of pre-arrest bail to the accused.

After considering the pleadings and other materials on record, the Court declined to interfere with the impugned order. The Court stated,

“We are also not inclined to interfere with the conditions imposed in the impugned order for grant of pre-arrest bail, except sub-paragraph (2) of paragraph 27 of the impugned order which reads as under:

(2) The petitioner can be interrogated for the next seven days i.e., from 27-06-2022 till 03-07-2022 (inclusive) from 09.00 AM till 06.00 PM every day, if required. The petitioner shall be deemed to be under custody during the aforesaid period for facilitating the requirements of investigation.”

Hence, the Court modified the bail condition by deleting the words “for the next seven days i.e., from 27-06-2022 till 03-07-2022 (inclusive)” and held that the accused may be interrogated as and when necessary, even after 03-07-2022.

The accused was directed to comply with all other conditions imposed by the High Court as also the conditions for grant of pre-arrest bail enumerated in Section 438(2) of the CrPC. Bail conditions affirmed by the Court are as follows:

  1. The accused shall not leave the State of Kerala without prior permission of the jurisdictional Court;
  2. shall appear before the Investigating Officer as and when called;
  3. shall not contact or interact with the victim or any of the witnesses;
  4. shall not indulge in any form of attack on the victim or her family through social media or any other mode;
  5. shall not harass, defame, denigrate or ridicule the petitioner or members of her family in any manner whatsoever or publish or post any comments, writing, picture, etc. in relation to the incident on social media or otherwise;
  6. shall not commit any other offence while on bail
  7. shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police officer;
  8. if the impounded passport of the accused is returned or if he is issued with a fresh passport, he shall immediately surrender the same to the Investigating Officer.

[x v. Vijay Babu, 2022 SCC OnLine SC 805, decided on 06-07-2022]


Advocates who appeared in this case :

Mr. Arjun Singh Bhati, AOR, Mr. C. K. Sasi, AOR, Advocate, for the Petitioner;

Mr. Siddharth Luthra, Sr. Adv., Mr. S. Udaya Kumar Sagar, Adv., Ms. Sweena Nair, Adv., Mr. Lakshay Saini, Adv., Ms. Anasuya Choudhury, Adv. and Mr. Angaj Gautam, Advocates, for the Respondent(s).


Also Read

Kerala High Court grants anticipatory bail to cine artist & producer Vijay Babu in a rape case

Kerala High Court| Can pre-arrest bail be granted to accused sitting abroad? Co-equal bench doubts order in Vijay Babu’s case; Larger Bench to decide


*Kamini Sharma, Editorial Assistant has put this report together

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: While adjudicating a petition filed by a breast cancer patient seeking to afford life-saving medicines which otherwise cost more than twice her monthly income, V. G. Arun, J. directed Central Government to consider compulsory licensing of the breast cancer drug “Ribociclib”.

The petitioner, a retired Bank employee receiving a monthly pension of Rs. 28000, was diagnosed with HER2- Negative Metastatic Breast Cancer.

The petitioner submitted that she is undergoing ‘targeted therapy’ treatment and the monthly cost of the medicines for treatment works out to Rs. 63,480 of which the costliest medicine is Ribociclib, which alone costs Rs. 58,140 per month.

Ribociclib is not manufactured in India and according to the petitioner, if the medicine is manufactured in India, the cost will come down substantially and will be affordable to persons like the petitioner. Although, Ribociclib presently enjoys a patent monopoly, and its manufacturers are hence prevented from producing the medicine without the consent of the patent holder.

Referring to Section 92 of the Patents Act, 1970 which provides for a compulsory licence, and Section 100 which empowers the Government to requisition life-saving medicines in cases of extreme necessity, the petitioner had approached various authorities with a representation to make the life-saving drug available at affordable price.

Though the petitioner had received an acknowledgement from the Union Ministry of Women and Child Development, her representation is still pending before the Department for Promotion of Industry and Internal Trade, New Delhi (Respondent-3). Therefore, as an interim measure, the petitioner had approached the Court seeking directions to the Industry and Internal Trade Department to consider her representation and take a reasoned decision without further delay.

The Court noted that as per the available statistics, an alarming number of women succumb to breast cancer by reason of their inability to afford expensive treatment and medication. Referring to the Constitutional mandate, the Court stated that the right to life guaranteed under the Constitution, coupled with the State’s duty to improve public health, calls for emergent and effective action in the matter.

Considering the seriousness of the matter, the Court directed Department for Promotion of Industry and Internal Trade (‘R-3′) to consider the petitioner’s representation and pass a reasoned order within four weeks after consultation with the other authorities.

The matter is posted on 18-07-2022 for further hearing.

[X v. Union of India, 2022 SCC OnLine Ker 3361, decided on 14-06-2022]


Advocates who appeared in this case :

Maitreyi Sachidananda Hegde, Advocate, for the Petitioner.


*Kamini Sharma, Editorial Assistant has reported this brief.

Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: In a case concerning attacks against doctors and medical institutions, Bechu Kurian Thomas, J., held that granting pre-arrest bail to an accused who is alleged to have committed violence against a healthcare professional will send a wrong message to the public.

Apprehending his arrest in a non-bailable case, the petitioner had approached the Court for pre-arrest bail.

The Petitioner was alleged to have wrongfully restrained a doctor, the de-facto complainant herein, and threatened her while she was on her way from the doctor’s room to the casualty of the hospital, thereby causing obstruction to her official duty and committing the offences under Sections 341, 353 and 506 of the Penal Code, 1860 and Sections 3 and 4(1) of the Kerala Healthcare Service Persons and Healthcare Service Institutions (Prevention of Violence and Damage to Property) Act, 2012 (‘Healthcare Act').

Assailing the allegations, the petitioner contended that he had met with an accident on 10-04-2022 and due to persistent pain, was advised to obtain an X-ray report of his spine. However, despite waiting for more than 1½ hours, his X-ray was not taken, and unmindful of his condition, the de-facto complainant reacted in a hostile manner and threatened not to treat him. Later, he came to know that a complaint was filed against him, resulting in the registration of the present crime.

To ascertain the apprehension of offence against the petitioner, the Court relied on the definition of the word ‘violence’ under Section 2(e) of the Healthcare Act, which reads as below:

“Section 2(e) “violence” means activities causing any harm, injury or endangering the life or intimidation, obstruction or hindrance, to any healthcare service person in discharge of duty in any healthcare service institution or damage or loss to property in healthcare service institutions.”

Thus, the Court opined that every harm, intimidation, obstruction or hindrance to a healthcare service person, in discharge of duty is treated as violence. Noticing that Section 4(4) of the Healthcare Act, violence against healthcare service persons is made non-bailable, the Court held that the salutary objective behind the Healthcare Act and the wide meaning ascribed to the word violence, cannot be ignored while considering an application for pre-arrest bail.

The Court remarked,

“The statute regards even an obstruction or hindrance if committed on a healthcare person as a grave offence. Thus, it cannot be held that absence of an assault on the doctor entails a person accused of an offence under the Healthcare Act to be released on pre-arrest bail.”

Considering the wide definition of the term ‘violence’, nestled under the umbrella of a non-bailable offence, the Court held that granting pre-arrest bail to an accused who is alleged to have committed an offence under the Healthcare Act would be incongruous to the legislative mandate.

A physician with trepidation, a surgeon with trembling hands and a disquiet nurse can lead to the wrong diagnosis, failed surgeries and improper nursing care. Life of several patients could fall into peril. Consequently, the public at large can become prejudiced.”

Therefore, the Court denied granting pre-arrest bail to the petitioner. However, the Court added that if the petitioner surrenders himself before the Investigating Officer within seven days, the officer shall subject him to interrogation and if after interrogation petitioner is arrested, the Investigating Officer shall produce him before the jurisdictional Magistrate immediately, and if any application for bail is preferred, the same shall be considered by the Magistrate in accordance with the law.

[Arun P. v. State of Kerala, Bail Appli. No. 3186 of 2022, decided on 20-06-2022]


Advocates who appeared in this case :

R. Sreehari, Advocate, for the Petitioner;

Noushad K.A., Public Prosecutor, for the State of Kerala.


*Kamini Sharma, Editorial Assistant has reported this brief.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: While allowing a couple to have their frozen embryo transferred to another hospital for infertility treatment, V.G. Arun, J., held that the purpose of the Assisted Reproductive Technology (Regulation) Act, 2021 is to prevent sale of human gametes, zygotes, and embryos; and not to prevent a couple from using their own embryo to develop it into a fetus. The Court noted,

“Close scrutiny of the provision shows that the intention is to prevent/restrict the sale etc. of human gametes, zygotes, and embryos.”

Factual Backdrop

The petitioners-couple were married in the year 2007 and even after fifteen years of marriage, the first petitioner was unable to conceive. Hence, the couple opted for infertility treatment at the Craft Hospital and Research Centre.

As part of the procedure, the first petitioner underwent an Oocytes Retrieval procedure on 02-09-2014. Out of the six eggs injected after retrieval, four fertilised. The embryos were then preserved at the Craft Hospital. However, the treatment was stopped in 2016 on the advice of the Chief Consultant, since the required wall thickness of the uterus could not be obtained.

Later on, the couple re-commenced their treatment at the Sabine Hospital and Research Centre Pvt. Ltd. where the doctors asked the couple to request for transfer of the frozen embryos from the Craft Hospital to the Sabine Hospital.

Commencement of the Assisted Reproductive Technology (Regulation) Act, 2021

During the interregnum, the Assisted Reproductive Technology (Regulation) Act, 2021 came into force on 20-01-2022, imposing restrictions with respect to matters connected to the Assisted Reproductive Technology. Therefore, the Craft Hospital refused to transfer the embryos stating that transfer of the embryos is not permissible after the introduction of the Act.

Analysis by the Court

The preamble of the Act, 2021 shows that the objective of the Act is the regulation and supervision of the assisted reproductive technology clinics and the assisted reproductive technology banks, prevention of misuse, safe and ethical practice of assisted reproductive technology services for addressing the issues of reproductive health where assisted reproductive technology is required for further use due to infertility, disease or social or medical concerns and for regulation and supervision of research and development and for matters connected therewith or incidental thereto.

Further, under Section 29, there is a prohibition against sale, transfer, or use of gametes, zygotes, and embryos, or any part thereof or information related thereto, directly or indirectly to any party within or outside India, except in the case of transfer of own gametes and embryos for personal use with the permission of the National Board.

The Court noted that the intention of the Act, 2021 is to prevent/restrict sale, etc. of human gametes, zygotes and embryos and in the case at hand, there is no such transfer since no donor or third party is involved and the embryos are that of the commissioning couple. Hence, the Court held that Section 29 does not interdict such transfer.

The Court expressed,

“Apart from the aspirations of the first petitioner to conceive and the second petitioner, to beget a child, the right of the life inside the embryo, which is kept frozen for the past 8 years, to develop into a fetus and be born, cannot be stultified by relying on a provision which has no application.”

Considering that the maximum period for which embryos can be preserved is ten years and eight years having elapsed already, the Court held that the petitioners would be put to undue prejudice and misery if the transfer is not permitted.

Conclusion and Directions

Resultantly, the Court concluded that the primary objective of the Act, 2021 is the regulation and supervision of the assisted reproductive technology clinics and banks, by preventing misuse and ensuring safe and ethical practice of assisted reproductive technology services. Holding that the Act, 2021 is not intended to create difficulties for persons opting for the assisted reproductive procedure, the Court issued the following interim directions:

  • Petitioners shall pay the amounts due to the Craft Hospital for preserving the embryos from 02-09-2014 onwards and on such payment being affected, the hospital shall forthwith permit the transfer of the embryos to the Sabine Hospital.

  • The Sabine Hospital shall collect the embryos and transfer it to its Assisted Reproductive Technology Bank and preserve the embryos with due care and protection.

  • The Sabine Hospital shall file an affidavit within five days affirming that it has all the requisite facilities envisaged under the Act.

The matter is posted after a week for further hearing.

[Rakhi Bose v. Union of India,2022 SCC OnLine Ker 3250, decided on 21-06-2022]


Advocates who appeared in this case :

Abraham Vakkanal, Senior Advocate along with M/S. Paul Abraham Vakkanal, Vineetha Susan Thomas & Rohith C., Advocates, for the Petitioners;

Assistant Solicitor General, for Union of India;

Government Pleader, for State of Kerala;

Sherin Varthese, Advocate, for Sabine Hospital and Research Centre Pvt. Ltd.


*Kamini Sharma, Editorial Assistant has reported this brief.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In a high-profile rape case that ignited controversy in the cine industry, Bechu Kurian Thomas, J., granted anticipatory bail to the cine artist and producer Vijay Babu. The Court held that there is no restriction in law that anticipatory bail cannot be granted to a person sitting abroad.

Abstaining to examine the application meticulously on facts, the Court said that the presumptions available under section 114(a) as well as under section 53(a) of the Evidence Act, 1872 in the cases of rape cannot be given undue preference at the stage of anticipatory bail and those presumptions will arise only when substantive evidence is adduced in a court of law i.e. at the stage of the trial.

Factual Matrix

Apprehending arrest in a rape case, the cine artist cum producer Vijay Babu had approached the Court with an application for anticipatory bail.

The applicant was alleged to have committed rape on the victim with the promise of marriage, he even alleged to have caused physical injuries to her. The prosecution further alleged that on coming to know about the registration of the crime, the applicant went abroad in an attempt to flee from the law.

Noticeably, the victim is a struggling actress who was promised to have a role in the applicant’s film. The prosecution alleged that the applicant had abused the trust reposed on him by the victim and exploited her by raping her on many occasions. Moreover, even during her menstrual periods, the applicant forced himself upon her, ignoring her repeated objections. Further, even after registration of the crime, the applicant was said to have come live on Facebook, where he revealed the identity of the victim, making her a laughing stock, and even threatened to prosecute her.

The prosecution contested the application for anticipatory bail alleging that the applicant had deleted the text messages from his mobile phones for the period till 31-03-2022, and the selective deletion of WhatsApp messages was crucial, considering the victim’s statement that on 16-03-2022 she was brutally raped after being forced to consume red wine.

On the contrary, the applicant argued that the accusation was only a machination of the victim who was upset on getting information that another actress was decided to be cast as a heroine. It was also pleaded that the applicant and victim had a consensual relationship, and the victim was aware that he is a married man, therefore the offences alleged were not made out at all.

Maintainability of Anticipatory Bail Application when the Applicant is Residing Abroad

The prosecution had assailed the bail application on the ground that the same had been filed when the applicant was in Dubai and the practice of filing applications for bail while sitting outside the country should not be entertained.

Considering that with the advancement in investigative technology and communication, the various agencies of investigation could even be deployed to arrest a person outside the country, the Court opined that apprehension of arrest can arise even while the applicant is residing outside the country. Relying on Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, and Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, wherein it was held that courts cannot read into section 438 CrPC. a restriction, which the legislature had not thought it fit to impose, the Court stated,

“When a bonafide apprehension exists, the statute confers power on such a person to seek protection from arrest. In the absence of any restrictive clauses in S.438, restricting the right of a person residing outside the country from filing an application for pre-arrest bail, Court cannot read into the provision such a restriction which the legislature did not incorporate.”

The Court relied on Souda Beevi v. S.I. of Police, 2011 SCC OnLine Ker 4242 and Shafi S.M. v. State of Kerala, 2020 SCC OnLine Ker 2928, to hold that there is no such an absolute restriction that application for anticipatory bail should not be entertained when filed from abroad, however, the Court must be convinced that the applicant is within the jurisdiction of the Court at least before the final hearing so that the conditions if any imposed, could be effectively enforced.

“Section 438 CrPC does not contain a restrictive mandate that a person residing outside the country cannot file an application for anticipatory bail.”

Therefore, the Court concluded that an application for anticipatory bail can be filed even by a person residing outside the country. However, the only limitation is that prior to the final hearing, the applicant must be inside the country to enable the court to impose and enforce conditions contemplated under the statutory provisions.

Factual Analysis

The Court opined that the nuance of ‘consent’ under the Penal Code, 1860 or of ‘rape’ is not to be deliberated upon at the anticipatory bail stage, and the Court should only consider the competing claims of liberty of an individual guaranteed under Article 21 of the Constitution as against the power of investigation of the police against a person accused of a serious crime.

Therefore, the Court must not get swayed by stereotypical notions of rape myths; i.e., chastity, resistance to rape, having visible physical injuries, behaving in a certain way, reporting the offence immediately, etc. Notwithstanding the above, care must be taken to avoid consensual relationships being converted into instances of rape.

In the backdrop of above, the Court called for the case diary and made the following observations:

  • The survivor was aware that the applicant was a married man. Therefore, the applicant being involved in a subsisting marriage, there was no possibility of a legal marriage with the survivor.

  • During the period from 16-03-2022 till 14-04-2022, the survivor was not under any form of confinement.

  • The applicant and the survivor have been communicating with each other through WhatsApp and Instagram consistently and in plenty and the available messages (from 31-03-2022 to 17-04-2022) conveyed an intense relationship between them; further those communications did not refer to any instances of sexual assault.

  • While the applicant deleted the messages from 16-03-2022 till 30-03-2022 from his phones, the survivor also deleted all messages between them, for the entire period in question.

  • Applicant had already been questioned for 38 hours and he had handed over his mobile phones to the investigating officer.

  • When the other actress had been chosen as a heroine, which came to the knowledge of the survivor after 15-04-2022 and she shouted at the applicant on 17-04-2022.

  • The applicant’s passport has already been impounded; hence he cannot flee from the country.

Conclusion

Resultantly, the Court held that the applicant ought to be given the benefit of anticipatory bail, subject to the following conditions:

  • The applicant can be interrogated for the next seven days i.e.; from 27-06-2022 till 03-07-2022 (inclusive) from 09.00 AM till 06.00 PM every day, if required to facilitate the requirements of the investigation.

  • If the Investigating Officer intends to arrest the applicant, then he shall be released on bail on executing a bond for Rs.5,00,000 with two solvent sureties for the like sum.

  • Applicant shall not contact or interact with the victim or any of the witnesses. The applicant shall not indulge in any form of attack through social media or other modes against the victim or her family.

  • Applicant shall not leave the State of Kerala without prior permission of the jurisdictional court and shall co-operate with the investigation. Further, he shall surrender his passport as and when he is issued with a fresh one or if the impounding is cancelled.

[Vijay Babu v. State of Kerala, 2022 SCC OnLine Ker 3158, decided on 22-06-2022]


Advocates who appeared in this case :

S. Rajeev, V. Vinay, M.S. Aneer and Sarath K.P., Advocates, for the Applicant;

M.R. Rajesh, Advocate, for the Victim;

Grashious Kuriakose, Addl. Director General of Prosecution, for the State.


*Kamini Sharma, Editorial Assistant has reported this brief.

Kerala High Court
Appointments & TransfersNews

President appoints S/Shri Justices (1) Murali Purushothaman, (2) Ziyad Rahman Alevakkatt Abdul Rahiman, (3) Karunakaran Babu and (4) Dr Kauser Edappagath, Additional Judges of the Kerala High Court to be Judges of the Kerala High Court with effect from the date they assume charge of their respective offices.


Ministry of Law and justice

[Notification dt. 1-6-2022]