Kerala High Court

Case BriefsHigh Courts

Kerala High Court: A.Muhamed Mustaque and Kauser Edappagath, JJ., addressed an interesting question of law,

Can a direction to undergo DNA Test be given in proceedings for divorce to establish the husband’s assertion of infidelity and adultery on the part of the wife without the child in the party array?

The husband of respondent 1 had preferred for dissolution of marriage on the ground of cruelty, desertion and adultery and for recovery of money and gold ornaments while respondent 1 had preferred for recovery of money at the Family Court. The main allegation of the petitioner was that his wife had been living adulterous life with respondent 2 (brother-in-law of respondent 1) and the child born to her was that of respondent 2.

To prove infidelity and adulterous act on the part of his wife, the petitioner had taken a specific plea that he was suffering from infertility and incapable to have a child. An application to conduct DNA test had been filed by the petitioner to prove that he was not the father of the child, however, the request was dismissed by the Court below on the ground that the child was a necessary party to the petition and without the child on the party array, its paternity and legitimacy could not be determined.

Presumption of Legitimacy

Placing reliance on Section 112 of the Indian Evidence Act, the wife of the petitioner argued that once the validity of marriage is proved, there is strong presumption about the legitimacy of children born from that wedlock and the presumption could only be rebutted by strong and conclusive evidence. Similarly, non access between the husband and wife is the only way to dislodge the conclusive presumption enjoined by Section 112 of the Evidence Act, hence, the prayer for DNA test could not be allowed in the absence of strong prima facie proof of non access.

Allegation of Infidelity

 Noticeably, after 22 days of the marriage the petitioner had to left for his place of work at Ladakh as he was employed at military service and during those 22 days or thereafter there was no physical relationship between them due to the non co-operation of respondent 1. The definite case of the petitioner was that he was suffering from infertility and there was no possibility for him to have a child.

Opinion of the Court

In Dipanwita Roy v. Ronobroto Roy, (2015) 1 SCC 365, the Supreme Court had held that, “DNA testing is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity. This should simultaneously be taken as the most authentic, rightful and correct means also with the wife, for her to rebut the assertions made by the respondenthusband, and to establish that she had not been unfaithful, adulterous or disloyal. If the appellant-wife is right, she shall be proved to be so.”

Similarly, in Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, (2014) 2 SCC 576, the Supreme Court took the view that the result of a genuine DNA test is scientifically accurate and when there is conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.  

Relying on the decisions of the Supreme Court, the Court opined that it would be permissible for a court to direct the holding of a DNA examination, to determine the veracity of the allegations constituting the grounds for divorce if a strong prima facie case is made out.

Can legitimacy of a child be determined without the child being on the party array?

The Bench explained that there are two tests for determining the question whether a particular party is a necessary party to the proceedings or not:

  • There must be a right to some relief against such party in respect of the matter involved in the proceedings in question; and
  • It should not be possible to pass an effective decree in the absence of such a party.

Hence, since original petition was not one under S.7 (1) r/w Explanation (e) of the Family Courts Act for a declaration as to the legitimacy of any person and it was a petition only for dissolution of marriage u/s 13 of the Hindu Marriage Act, the Bench held that the presence of child does not have any bearing whatsoever in deciding the petition for dissolution of marriage on merit. Answering the question referred in affirmative, the Bench stated,

“The illegitimacy or paternity of the child is only incidental to the claim for dissolution of marriage on the ground of adultery or infidelity. The child’s presence is not necessary to adjudicate the relief claimed.”

Conclusion

In the backdrop of above, the Bench allowed the petitioner to conduct DNA test of the petitioner as well as the son of the respondent 1. [XXX v. XXX, 2021 SCC OnLine Ker 3458, decided on 14-09-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: Advocate Sindhu Santhalingam and Advocate A.D.Shajan

For the Respondents: Advocate Brijesh Mohan, Advocate Shajin S.Hameed and Advocate Resmi G. Nair

Case BriefsCOVID 19High Courts

Kerala High Court: Finding it shocking and unbelievable that were 278 attacks against Doctors, Nurses and Healthcare Workers in the State of Kerala, the Division Bench of Devan Ramachandran and Kauser Edappagath, JJ., stated that,

“The attacks on Health Care Workers or an attempt to intimidate or threaten them, for whatever be the reason can never be condoned or tolerated.”

Pursuant to frequent incidents of violence against medical practitioners in the State of Kerala and various orders of the Court, the State government had proposed following suggestions:

“1. CCTV should be installed in all hospitals, initially and a feed shall be given to Police AID Post

  1. At the institution level, security in charge officer to be nominated by the Superintendent of Hospital.
  2. The paramedical staff and others to be given security related training by coordinating with the Superintendent of the Hospital.
  3. All further appointments of security personnel, especially for Casualty and Out Patient Department (OPD) areas shall only be from Ex-Serviceman Society/organizations.”

Noticeably, around 278 cases had been registered under the provisions of the Kerala Health Care Service Persons and Health Care Service Institutions (Prevention of Violence and Damage to Property) Act, 2012 of which 232 of such cases had been charge-sheeted and 28 were under investigation.

The Indian Medical Association and Association of Private Medical Hospitals submitted that, in spite of the earnest efforts taken by the Government instances of attacks on Doctors and Nurses are still continuing, mainly because of the delay in investigation and conclusion of the proceedings on the crimes registered; and also because the Police are often lax in responding to their plea for assistance or protection. It was also submitted that sometimes certain vexatious messages in the social media give rise to misunderstanding on the working of a particular hospital, which leads to untoward incidents, but that the Police are slow in responding to it.

Noticing that there was nothing on record to suggest whether steps had already been implemented, apart from saying that they had been proposed, the Bench stated that all the steps which we have extracted above, require to be effectively implemented. Opining that it is only sensitization and education that the citizens be made aware that their actions against Doctors and Nurses would invite penal consequences under the provisions of the Act would ease the situation, the Bench said,

“we have not come across any public messages or news releases from the side of the Government informing the public that such attacks would attract very severe penalties the Government to ensure that the provisions of the Act are made known to the public at large, including by giving publicity in the premises of the hospitals and also by giving it good circulation through the Mainline and Online media.”

Hence, the State Police Chief was directed to ensure that necessary instructions are given to all the Station House Officers to react swiftly and quickly in case of any complaint being made to them by the hospitals and make adequate arrangements for disseminating information about penal consequences of violence against medical practitioners.

Additionally, on being informed that the Government had brought out an order (G.O (Rt)No.1750/2021/H&FWD) dated 16-08-2021, whereby certain fees and charges were prescribed for treatment of patients suffering from “post COVID complications”; the Bench asked the government to explain the necessity for having issued the order, particularly when post COVID complications – by its very nature – indicate problems that arises out of COVID-19 infections. [Kerala Private Hospitals Association v. State of Kerala, RP No. 379 of 2021, decided on 09-09-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For The Petitioners: Syam Divan (Senior Advocate) along with K. Anand, Advocates

For State Of Kerala: Advocate General & Government Pleader

For Union of India: P. Vijayakumar, Assistant Solicitor General of India

For Indian Medical Association (IMA): S. Gopakumaran Nair (Senior Advocate) along with Sri.Suraj T.Elenjikkal,

For Private Medical Practitioners Association: M/S.M.Gopikrishnan Nambiar, K.John Mathai, Joson Manavalan, Kuryan Thomas, Paulose C. Abraham & Raja Kannan,

For State Police Chief: M. Ajay, Sri.S. Kannan, Senior Government Pleader

Case BriefsHigh Courts

Kerala High Court: K.Haripal, J., granted bail to the accused involved in post poll murder case of a Muslim League member. The Bench opined,

“No doubt, the allegations against the accused are very grave. Still, so long as the final report is laid, it is not in the interest of justice, unless overwhelming reasons are made out, to keep the suspects in custody.”

 The instant case dealt with post poll murder that was a culmination of political rivalry between the activists of the Communist Party of India (CPI (M)) and rival political group i.e., Indian Union Muslim League. It had come out that there were some clashes between the two groups, later, while the deceased was moving on his motor cycle on the eve of the last Assembly elections, a gang of persons, including the petitioners intercepted and attacked him with dangerous weapons; and country made bombs were also hurled at him. The petitioners were implicated for causing death of one member of the Muslim League and severely injuring one other member (brother of the deceased).

The Petitioners who were 10 in number were booked under Sections 143, 147, 148, 302, 341, 323, 324, 326, 307 read with 149 of the Penal Code, 1860 and also under Sections 3 and 5 of the Explosive Substances Act and Sections 25(1)(B)(b) and 27(1) of the Arms Act. Noticeably, one of the accused had committed suicide, another absconded and the rest had approached the Court for seeking their release on bail.

Noticing that the total number of sessions cases pending in the Thakassery division was 5498, in which number of murder cases where custodial trial was intended was 8, the Bench opined that the Sessions Courts in that division were very heavy as Thalassery was a hub of political rivalry and clashes. Hence, considering that huge number of sessions cases were pending in the courts, the Bench opined,

“In the circumstances, it is unlikely that the trial of the case will be able to be taken up in the near future. That would result in protraction of trial and indefinite detention of the petitioners in custody. Such a pre-trial detention is not expedient nor in public interest.”

 Moreover, considering the guidelines issued by the Supreme Court for easing the crowd in prisons during to Covid pandemic, the Bench favoured the bail application of the petitioners. Rejecting the apprehensions of the prosecution that if released the accused may influence prosecution witnesses, the Bench stated that since all the material witnesses were members or sympathisers of the Indian Union Muslim League, rival political fraction of the accused, normally, such witnesses were not susceptible to any kind of influence, that might be exerted by the accused in the event of their release on bail.

Accordingly, the Bench held that the accused can be detained in custody indefinitely only if very strong circumstances are made out. The bail application was allowed. [Shinos.K.K v. State of Kerala, 2021 SCC OnLine Ker 3449, decided on 13-09-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For The Accused: Sr. Advocate P.Vijaya Bhanu, Advocate K.Viswan, Advocate M.Revikrishnan, Advocate D.Arun Bose

For The State Of Kerala: Senior Public Prosecutor Sreeja V. and Senior Public Prosecutor Renjith T.R.

For Respondent: Advocate C.K.Sreedharan and Advocate Sunny Mathew

Appointments & TransfersNews

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

1. Smt. Justice M.R. Anitha, and

2. Shri Justice K. Nair Haripal.

Supreme Court of India

[Collegium Statement dt. 7-09-2021]

Case BriefsHigh Courts

Kerala High Court: Narayana Pisharadi, j., dismissed the revision petition filed by CBI due to its failure to obtain prior sanction of government before prosecuting public servants.

The Central Bureau of Investigation (CBI) had filed the instant revision petition to assail the order of the Special Judge for CBI Cases, Lakshadweep by which it allowed the applications for discharge filed under Section 239 of the CrPC by accused 4 and 8. The accused were alleged for committing the offences punishable under Sections 7, 12 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 and also under Sections 468, 471, 420 and 120B of the Penal Code.

Background

The prosecution case was that the Directorate of Education of the Union Territory of Lakshadweep had directed to supply, free of cost, ready-made uniforms to the school children for the academic year 2005-06. A Uniform Tender Evaluation, Sample Selection and Procurement Committee was formed in this regard. Pursuant to a conspiracy hatched by the members of the committee with one Nagendran, the approver, sub-standard uniforms were purchased, violating the tender conditions and by making false and forged entries on record. Thereby, the accused who were member of the committee were alleged for benefiting with wrongful gain and causing wrongful loss to the Lakshadweep Administration and a criminal case was registered against them.

Decision of Special CBI Court

However, the Special Court had held that prior sanction under Section 197 of CrPC was necessary to prosecute the accused as they were public servant, accordingly, the prosecution against accused 4 and 8 was held bad for want of sanction and the accused were discharged.

Analysis and Decision

As per Section 197(1) of CrPC, when any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of the Central Government or the State Government.

In Amrik Singh v. State of Pepsu, (1955) 1 SCR 1302, the Supreme Court had held that, “If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under Section 197(1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required”. Similarly, in D.Devaraja v. Owais Sabeer Hussain, (2020) 7 SCC 695, after an elaborate discussion of the question, it was held that, “To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty”.

Affirming the reasoning of the Special Court that both the accused did not have expertise in the matter of quality control or checking the standards of stitching or clothes supplied, at the most, they could be blamed only for the omissions in not insisting meetings of the committee. In all probability they might have gone by the certificates issued by the technical member in the committee, hence, they could only be blamed for non feasance, at the most, the Bench stated that the sum and substance of the allegation against accused was that they blindly accepted the certificate issued by Accused 9 without conducting inspection of the uniform materials and consequently, sub-standard materials happened to be purchased.  Hence, the act of accused, who were not experts in the field, in accepting the certificate issued by the technical member of the committee would not take them out of the protection under Section 197(1), which was otherwise available to them.

In the backdrop of above, the Bench held that it was necessary to obtain sanction under Section 197 for prosecution and cognizance of the offences taken against them, without such sanction, was bad in law. Accordingly, the petition was dismissed. [CBI v. Syed Shaikoya, Crl. Rev.Pet No. 509 of 2012, decided on 01-09-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the State: ASG P.Vijayakumar

For the Respondents: Advocate Glen Antony, Advocate P.Sanjay and Advocate M.Vanaja

Appointments & TransfersNews

SC Collegium approves proposal for elevation of 4 Advocates & 4 Judicial Officers as Judges in Kerala HC

Supreme Court Collegium has approved the proposal for elevation of the following Advocates and Judicial Officers as Judges in the Kerala High Court:

Advocates

1. Smt. Shoba Annamma Eapen,

2. Smt. Sanjeetha Kalloor Arakkal,

3. Shri Basant Balaji, and

4. Shri Aravinda Kumar Babu Thavarakkattil.

Judicial Officers

1. Shri C. Jayachandran,

2. Smt. Sophy Thomas,

3. Shri P.G. Ajithkumar, and

4. Smt. C.S. Sudha.

Collegium Resolution

[Statement dt. 1-09-2021]

Case BriefsHigh Courts

Kerala High Court: P.V.Kunhikrishnan, J., criticized the decision of the District Level Authorization Committee for transplantation of Human Organs, wherein application of a person who came forward to donate his kidney to a needy patient was rejected because of his criminal antecedents. The Bench expressed,

 “If this stand of the respondent is allowed, I apprehend that, the respondent will reject such applications for permission to donate organs even on the ground that, the donor is a murderer, thief, rapist, or involved in minor criminal offences.”

 Observing that there were no provision provisions in Transplantation of Human Organs and Tissues Act, 1994 (‘Act 1994) and The Transplantation of Human Organs and Tissues Rules, 2014 (Rules 2014) to support the stand of the respondent, the Bench expressed its disgust stating,

“I hope, they will not reject the applications because the donor is a Hindu, Christian, Muslim, Sikh, or person in a lower caste after comparing with the religion and caste of the recipient.”

Petitioner 2, driver of petitioner 1 had sought approval for kidney donation as both the kidneys of petitioner 1 had spoiled and it needed urgent transplantation. However, the authorisation committee concerned rejected permission with the reasoning that, “the donor is involved in multiple criminal offences”. Noticeably, in earlier Rule 1994 there was a specific provision that says that a donor should not have any criminal antecedents. However, the said Rule was substituted by Rule 2014 and there was no such stipulation in the new Rule. The only embargo in Rule 2014 was that the donor should not be a drug addict.

In Shoukath Ali Pullikuyil v. the District Level Authorization Committee (2017(2) KLT 1062), the Court had observed that even a police verification report is not mandatory for taking a decision by the Authorisation Committee. The Court had held that,

 “Police can only be or rather police should only be involved, if the Authorisation Committee doubts the genuineness of the claims or bona fides of the persons or genuineness and bona fides of the documents produced and not otherwise. Verification through police as a routine manner in all cases should generally be avoided. That would save time and harassment to already harassed people. The prime consideration being that, there is no commercialisation in matters of organ donation. The organization committee can surely discover those by various certificates and documents that it requires to be filed before decisions are taken. This should not be allowed to continue in the future.”

Observing that the only intention of the Legislature was to prevent commercial dealings in human organs and tissues, the Bench opined that there was no logic to the finding of the committee for rejecting the application. If the reasoning of the authority is accepted, the only conclusion that is possible about such reasoning of the Authorisation Committee is that the committee believes that the criminal behaviour of the donor will percolate to the person who accepts the organs! What sort of reasoning is this? No person with common sense can agree with the same. Calling the reasons for refusal flimsy, the Bench stated that the Authorisation Committee could not go beyond their jurisdiction and reject the application as

“There is no organ in the human body like a criminal kidney or criminal liver or criminal heart! There is no difference between the organ of a person without a criminal antecedent and the organ of a person who has no criminal antecedents.”

Hence, the Bench held that if there was no evidence to show that there was no commercial dealing, pragmatism should overtake technicalities, because a man was on death bed. The State government was directed to issue appropriate orders directing all the authorities concerned to convene meetings to consider the applications submitted as per Act 1994 and Rule 2014, as expeditiously as possible, at any rate, within one week from the date of receipt of such applications and mention the reason in cases of delay in convening the meeting within one week.

In the light of the above, the rejection order was set aside and the matter was remanded to the authority for reconsideration. [Radhakrishna Pillai v. District Level Authorization Committee for Transplantation of Human Organs, WP(C) No. 16216 of 2021, decided on 27-08-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioners: Advocate C.M.Mohammed Iquabal

For the Respondent: Sr. G. P. Deepa Narayanan

Case BriefsHigh Courts

Jharkhand High Court: Anubha Rawat Choudhary, J., set aside the order of conviction under Section 304A of IPC passed without hearing the accused. The Bench stated that in case of non-appearance of counsel for the accused it is the duty of the Court to appoint another counsel as amicus curiae to defend the accused.

The petitioner had been convicted and sentenced by the Judicial Magistrate for the offence punishable under Section304 A of the Penal Code, 1860 to undergo R.I. for one year and fine of Rs 1,000/-and further sentenced to fine of Rs 1,000/-for the offence punishable under Section 279 of the Indian Penal Code.

The petitioner submitted that he was not heard by the Appellate Court due to the non-appearance of his counsel and the case had been decided against the petitioner, as evident from the order of Appellate Court:

“Appellant takes no step. In spite of repeated adjournment no one turned up on behalf of the appellant to argue the case. This case is running for hearing since 2008 and in spite of giving several opportunity no one turned up to argue the case. Argument on behalf of learned P.P has been heard. Put up on 23.5.2012 for judgment.”

The petitioner contended that even if the counsel for the petitioner did not appear before the court for final argument of the appeal, the Court ought to have appointed an amicus for disposal of the case.

Observing that the case had been decided in absence of the appellant/petitioner on account of non-appearance of his counsel, the arguments of the State were concluded in his absence and that no amicus had been appointed by the Appellate Court to assist the Court on behalf of the appellant/petitioner for disposal of the case, the Court opined that the Appellate Court ought to have at least appointed an amicus to assist the Court from the side of the appellant in the disposal of the appeal.

In Md. Sukur Ali v. State of Assam, (2011) 4 SCC 729, the Supreme Court had opined that,

“Even assuming that the counsel for the accused does not appear because of the counsel’s negligence or deliberately, even then the Court should not decide a criminal case against the accused in the absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the Court should appoint another counsel as amicus curiae to defend the accused. This is because liberty of a person is the most important feature of our Constitution. Article 21 which guarantees protection of life and personal liberty is the most important fundamental right of the fundamental rights guaranteed by the Constitution. Article 21 can be said to be the ‘heart and soul’ of the fundamental rights.”

Considering the aforesaid facts and circumstances, the Court set aside the impugned judgment passed by the Appellate Court and the matter was remanded back to the Appellate Court for reconsideration.[Ramesh Kumar v. State of Jharkhand, 2021 SCC OnLine Jhar 565, decided on 17-08-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: Senior Advocate B.M. Tripathy and Advocate Naveen Kumar Jaiswal

For the State: A.P.P. P.D. Agarwal

Case BriefsHigh Courts

Kerala High Court: V.G. Arun, J., addressed the instant suo motu case pertaining to the plight of mentally ill remand prisoners who had been left to languish in prisons due to them being abandoned by family and friends. Calling it blatant violation of basic human rights as well as of fundamental rights guaranteed by the Constitution, the Bench expressed,

“The powerless, voiceless mentally ill prisoners languishing in prisons and mental health centres for years together, embroiled in legal quagmire and abandoned by family and friends. The system and the society presume them to be devoid of knowledge and feeling, thereby turning them into stone.”

According to the State government’s as on 10-08-2020, there were 77 convicts/ remand prisoners undergoing treatment in Government Mental Health Centres in the State, of whom 22 were continuing after acquittal. Of the other 55 prisoners,48 were undertrial prisoners and 7 were convicts. Out of the 22 acquitted persons, 18 were fit for discharge and could be sent to rehabilitation centres and even from among the under trial prisoners, some were fit to be rehabilitated.

Noticeably, the Government had framed a scheme for rehabilitation of mentally ill prisoners continuing in Mental Health Centres after acquittal; which provides for shifting such prisoners to Psycho-Social Rehabilitation Centres which had expressed willingness to look after such persons. The Government had also decided to sanction an amount of Rs.39,660/- per year to such Psycho-Social Rehabilitation Centres essential.

Infinite Detention of Mentally Ill Prisoners

After pursuing Chapter XXV, (Ss. 328-339) of the Code of Criminal Procedure, which governs the enquiry, trial and acquittal/conviction of mentally ill persons; the Bench observed that in spite of being found eligible for discharge or release on bail or even on being acquitted, a mentally ill prisoner may have to continue in prison or a mental health facility, until a friend or relative volunteers to take him and to give him proper care. Such good Samaritan’s being absent in the case of most of the mentally ill accused, they continue to languish in prisons and mental health centres for years together.

“Even worse is the case of under-trial prisoners, who are to continue under remand till they are capable of making their defence, which may take years together and for the most unfortunate, may never happen.”

Inadequate Implementation of Statutory Safeguards

India, being a signatory to the United Nations convention on rights of persons with disabilities and it’s optional protocol. Hence, to follow its international obligation, it had replaced the Mental Health Act, 1987 with the Mental Healthcare Act, 2017 to bring about revolutionary changes in the life and living standards of persons with mental illness. The 2017 Act aims to make community living the right of every mentally ill person, and guarantee the right to protection from cruel, inhuman and degrading treatment.

Noticing that most of the Sections of Chapter XXV of the CrPC still term mentally ill accused as ‘lunatic’ and for mental health establishments the term used is lunatic asylum, the Bench stated,

“Not only the terminology, the procedure prescribed in Chapter XXV has to be amended, to make the provisions commensurate with the the Mental Healthcare Act, so as to achieve the laudable objective of the Act, viz., to make improve the life and living standards of persons with mental illness.”

Relying on the Supreme Court’s decisions in Hussainara Khotoon v. Home Secretary, (1980) 1 SCC 81, and A.R.Antulay v. R.S.Nayak, (1992) 1 SCC 225, where it was held that right to speedy trial is integral and essential part of the fundamental right to life and liberty enshrined in Article 21 of the Constitution, the Bench stated, if the provisions of the Act gets implemented in its letter and spirit it would undoubtedly provide solace to the mentally ill persons, including the mentally ill prisoners.

Conclusion and Directions

Considering the report of the Kerala Legal Services Authority (KELSA), the statement submitted on behalf of the Government, the relevant provisions under the CrPC, the Mental Healthcare Act and being guided by the doctrine of parens patriae, the Bench issued following interim directions;

  1. The State Government shall forthwith set up a mental health establishment, as stipulated in Section 103(6) of the Mental Healthcare Act, in at least one prison in the State. The prisoners with mental illness shall ordinarily be referred to and cared for in the said mental health establishment.
  2. The Government shall forthwith constitute Mental Health Review Boards under Section 73 of the Mental Healthcare Act, the composition of which shall be in accordance with Section 74 of the Act.
  3. The Medical Officers of prisons and mental health establishments shall strictly comply with the duties imposed on them under Section 103 of the Mental Healthcare Act.
  4. The Mental Health Review Boards shall ensure that prisoners with mental illness are allowed to live with dignity and treated as equal to persons with physical illness.
  5. The Mental Health Review Boards shall make available details of the mentally ill remand prisoners detained in jails and mental health establishments to the Kerala State Legal Services Authority.
  6. The State Government shall, with the assistance of the KELSA, take necessary steps to trace the relatives of acquitted mentally ill prisoners and of the under-trial prisoners fit for rehabilitation and persuade their family members to provide necessary care and protection to those persons. If the family members of the acquitted mentally ill persons refuse to take them back, the State Government shall take steps for their rehabilitation by transferring them to the willing registered mental health establishments. Once the mentally ill acquitted person is shifted to a mental health establishment, the amount fixed by the Government scheme shall be disbursed to that establishment.
  7. The Social Justice Department shall file a report specifying the steps taken in terms of the above directions.

[Suo Motu v. State of Kerala, OP(CrL.) No. 487 of 2019, decided on 13-08-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Kerala High Court: A.M. Badar, J., dismissed the petition challenging cancellation of CGST registration observing that the petitioner had remedy of challenging cancellation of registration by filing an appeal which he had not availed. The Bench observed,

“The petitioner was sleeping over its right after cancellation of its registration. There is undue delay even in filing an application for revocation of registration so also even in approaching this Court.”

The grievance of the petitioner was that his registration under the Central Goods and Services Tax (CGST) Act, 2007 was cancelled on account of non-filing of the return for a continuous period of six months. He filed an application for revocation of cancellation, but because of defect in the software maintained by the respondents, the respondents did not revoke the cancellation of registration. It was further urged that the respondents had decided to grant benefit of amnesty scheme to the tax payers under the CGST Act enabling them to furnish the returns up to 31-08-2021 by waiving fees and other penalties under the CGST Act. But because of cancellation of registration, he was not in a position to obtain benefit of that scheme.

Noticing that the registration of the petitioner came to be cancelled after issuing show-cause notice, the Bench stated that the reason for cancellation was suo motu cancellation due to non-filing of returns. The petitioner-Company had filed an application for revocation of cancellation of registration but the application was also rejected as it was filed after 90 days of the order cancelling registration. Observing that the petitioner had remedy of challenging cancellation of registration by filing an appeal which he had not availed, and the cancellation of registration attained finality, the Bench held that the petitioner could not be heard to say that he is willing to avail the benefits of the amnesty scheme framed by the Government and the registration which was cancelled needs to be revoked.

Opining that the petitioner was sleeping over his right after cancellation of its registration, the Bench dismissed the petitioner for being devoid of merit.[Powernet India (P) Ltd. v. Union of India, 2021 SCC OnLine Ker 3212, decided on 25-08-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: Advocate Latheesh Sebastian

For Union of India: S.C. Sreelal.N. Warrier and A.S.G.I P.Vijaya Kumar

Case BriefsHigh Courts

Kerala High Court: Devan Ramachandran, J., held that parties to arbitration cannot nominate the arbitrator even if the Arbitration Agreement provides so.

Syllogistic Scope of Sections 11(5) and 11(6) of Arbitration Act

The instant Arbitration Request dealt with certain novel, but interpretationally germane legal aspects appertaining Sections 11(2), 11(5) and 11(6) of the Arbitration and Conciliation Act, 1996. The focus was on the interplay of Sections 11(5) and 11(6) of the Act, since both of them deal with appointment of a sole Arbitrator, albeit, in two subtly distinct scenarios. It was this distinction which was ingenuously grabbed by the respondent to resist the petitioner’s Arbitration Request.

The petitioner, a private limited Company had approached the Court under Section 11(6) of the Act, praying that the Court appoint a sole Arbitrator, in terms of Clause 27 of the Agreement – which the petitioner asserted was a lease agreement entered between the parties. Clause 27 provided ways to adjudicate and decide certain disputes, which warranted resolution only through the mechanism of arbitration.

Issue Raised

The respondent argued that the Arbitration Request was not maintainable because the grounds raised by the petitioner ineluctably disclose that they had, in fact, approached the Court under Section 11(5) of the Act, though styling it as being under Section 11(6) thereof; hence, unless thirty days pass after they had made demand to the client for appointment of Arbitrator, the Arbitration Request would be premature and hence, not maintainable. Additionally, the respondent contended that the issue was not arbitrable as it fell within the jurisdictional realm of the Rent Control Act.

Stand taken by the Petitioner

The petitioners contested that they had invoked Section 11(6) of the Act and hence were not obligated to wait for thirty days after demand had been made on the respondent. It was contended that Section 11(5) of the Act is called in only when the agreement does not contain a procedure for appointing an Arbitrator, or when the parties have not agreed on such. However, Clause 27 of agreement expressly disclosed the procedure agreed upon by the parties to appoint an Arbitrator; and, therefore, they had rightly invoked Section 11(6) which concedes no pre-conditional Stipulations.

Clause 27 of agreement provided for Arbitration between the parties in case of disputes, since it reads as under:

“27 If any dispute or difference arises between the lessor and lessee during the period of lease or upon the expiry of the said lease both parties shall seek to resolve by mutual discussions. If such discussions are unsuccessful the same shall be referred to arbitration in accordance with the provisions of the Arbitration and conciliation Act, 1996 for the time being in force. Arbitration shall be by a sole arbitrator if parties can agree upon one and failing that the disputes shall be referred to an arbitrator to be selected by the lessor.”

Statutory Mandate

Section 11(2) Subject to sub-section(6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators.

 Section 11(5) Failing any agreement referred to in sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree [the appointment shall be made on an application of the party in accordance with the provisions contained in sub-section (4)].

 Section 11(6) Where, under an appointment procedure agreed upon by the parties,-

  • a party fails to act as required under that procedure;

     …[the appointment shall be made, on an application of the party, by the arbitral institution designated by the Supreme Court, in case of international commercial arbitration, or by the High Court, in case of arbitrations other than international commercial arbitration, as the case may be] to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment. 21.

Yardsticks of Sections 11(5) and 11(6)

Noticeably, provisions would limpidly reveal that Section 11(5) of the Act would become attracted only in the cases where an agreement as to the procedure for appointment of an Arbitrator, as referred to in Section 11(2), between the parties has failed. As far as section 11(2) was concerned, the parties were given liberty to enter into an agreement for procedure to appoint an Arbitrator, in which event, Section 11(6) alone would apply and the mandate of the provisions therein will guide the appointment.

Observing that Clause 27 crystally provided for a specific procedure – which had been agreed between the parties – as regards appointment of an Arbitrator, the Bench held that the mandate of Section 11(2) of the Act had been satisfied by the stipulations in that Clause; and Section 11(5) could not come into play because, as was evident from its phraseology, the procedure therein is attracted only “failing any agreement referred to in subsection (2)”.

Hence, the Bench rejected the argument that the petition was vitiated for the reason of non-compliance of the rigour of Section 11(5). On the same parity of reasoning, the Bench stated,

“Even if the petitioner has projected grounds in this Arbitration Request, under a mistaken notion that the mandate of Section 11(5) is to followed or has been satisfied, it would be of no real consequence, since it is the duty of this Court to affirmatively and conclusively determine if there is an agreement between the parties regarding the procedure for appointment of an Arbitrator and then to apply the correct and applicable sub-section of Section 11 of the Act.”

Can a Party to dispute Nominate the Arbitrator?

On perusal of Clause 27 of the agreement as to how the parties must initiate and proceed to arbitration, the Bench stated that the said Clause made an adscititious provision that if parties do not reach consensus regarding arbitrator, an Arbitrator shall be appointed by the lessor.

Subsequent to the amendments to the Act in the year 2016 through which sub-section (5) was inserted into Section 12, notwithstanding any agreement to the contrary, any person whose relationship with the parties falls under any of the categories in the seventh Schedule of the Act, is rendered ineligible to be appointed as an Arbitrator. The Supreme Court considered the effect of Section 12(5) of the Act in TRF limited v. Engineering projects Ltd., (2017) 8 SCC 377, and had unreservedly declared that, neither a party to the disputes nor a person nominated by it can be appointed as an Arbitrator. Hence, the Bench disregarded the stipulations of Clause 27 extent to it allowed the lessor to nominate the Arbitrator when the parties fail to arrive at a consensus nominee.

Decision

In the light of the above, the Bench rejected the contention that the dispute fell within the jurisdictional realm of the Rent Control Act, stating that it is well established that under the sanction of Section 16 of the Act that the Arbitrator himself had to decide whether he has the competence to adjudicate; and to rule appropriately on his jurisdiction as regards all or any of the disputes, under the “kompetenz-kompetenz” doctrine, which is expressly incorporated into the Act.

Accordingly, the Bench nominated Mr. D.Pappachan as the sole Arbitrator to adjudicate and resolve the disputes and differences between the parties to the case arising from the agreement.[Tulsi Developers India Pvt. Ltd., v. Appu Benny Thomas, Ar. No. 105 of 2020, decided on 08-07-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: Advocate Praveen K. Joy

For the Respondent: Advocate G.Sreekumar

Case BriefsHigh Courts

Kerala High Court: The Division Bench comprising of K. Vinod Chandran and Ziyad Rahman A.A., JJ., temporarily suspended the sentence of the applicant to allow him to perform religious rites and rituals of his deceased mother.

The instant application had been submitted by the applicant who was held guilty of offences punishable under Sections 143, 147, 148, 149, 120(B), 302 Penal Code, 1860 and Sections 3 and 5 of Explosive Substances Act, 1908 by the Additional Sessions Court. The sentence imposed upon him included life imprisonment as well.

The applicant sought for suspension of sentence for a short period on the ground that his mother passed away on 06-07-2021 and he had only one sister as sibling, therefore, he being the male heir, the religious rites in connection with the death of his mother had to be performed by him. The applicant urged that his sentence be suspended for a short period so as to enable him to carry out the religious rites and rituals in connection with the 41st day of the demise of his mother.

Considering the reasons highlighted by the petitioner, the Bench granted the petitioner liberty to perform the religious rituals for his mother. Accordingly, the application was allowed and his sentence was suspended for a period of one month subject to following conditions:

  1. The petitioner shall be released on bail on executing a bond for Rs 50,000/- (Rupees fifty thousand only) with two solvent sureties for the like sum to the satisfaction of the trial court; ii) From the date of release, he shall report before the SHO concerned between 10.00 and 11.00 a.m. on every Monday;
  2. On the date on which one month’s period expires, he shall report before the Superintendent, Central Prison concerned at 10.00 a.m.;
  3. He shall not involve in any offence while on bail;
  4. If the conviction and sentence of the petitioner/appellant is upheld or even modified, the time during which he is so released shall be excluded in computing the term of his sentence as provided in Section 389(4) CrPC.

[Biju v. State of Kerala, 2021 SCC OnLine Ker 2993, decided on 05-08-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: Advocate M.P.Madhavankutty and Advocate Shijoy John Mathew,

For the Respondent: Public Prosecutor

Case BriefsHigh Courts

Kerala High Court: P. B. Suresh Kumar, J., held that the State Government has no power to specify any class of persons as socially and educationally backward for the purposes of the Constitution since only the President is entitled to specify the socially and educationally backward classes in relation to a State after due consultation with the Commission set up under Article 338-B of the Constitution.

Petitioner 1, a General Secretary of an organisation engaged in the upliftment of socially and educationally backward classes and petitioner 2, a person belonging to Ganaka community which is one of the communities specified by the State as a socially and educationally backward class had filed the instant petitioner together to assail the order dated 06-02-2021 issued by the State Government in terms of which Nadars in the State of Kerala belonging to Christian religious denominations other than SIUC (South Indian United Church) were included in the list of socially and educationally backward classes for the purpose of providing employment and educational benefits.

The case set out by the petitioners that in the light of the provision contained in Article 342-A introduced to the Constitution in terms of the 102nd Amendment with effect from 15-08-2018, the State Government is denuded of the power to specify any class of persons as socially and educationally backward for the purposes of the Constitution. According to them, in the light of the said constitutional amendment, it is for the President to make such specifications, and the impugned order was, therefore, unconstitutional, being violative of Article 342-A.

Relying on the decision of the Supreme Court in Jaishri Laxmanrao Patil v. Chief Minister, 2021 SCC Online SC 362, the petitioners contended that the Supreme Court had clarified that till the President specifies the socially and educationally backward classes in relation to the States in terms of the provision contained in Article 342-A, the lists of socially and educationally backward classes operating in the States would continue to hold the field.

In Jaishri Laxmanrao Patil v. The Chief Minister, 2021 SCC Online SC 362, the Supreme Court had held:

“670. In view of the categorical mandate of Article 342A – which has to be necessarily read along with Article 366(26C), on and from the date of coming into force of the 102nd Amendment Act, only the President, i.e. the Central Government has the power of ultimately identifying the classes and castes as SEBCs. This court is conscious that though the amendment came into force more than two years ago, as yet no list has been notified under Article 342A. It is also noteworthy that the NCBC Act has been repealed. In these circumstances, the Court holds that the President should after due consultation with the Commission set up under Article 338B expeditiously, publish a comprehensive list under 342A(1). This exercise should preferably be completed with utmost expedition given the public importance of the matter. Till such time, the SEBC lists prepared by the states would continue to hold the field. These directions are given under Article 142, having regard to the drastic consequences which would flow if it is held that all State lists would cease to operate. The consequences of Article 342A would then be so severe as to leave a vacuum with respect to SEBCs’ entitlement to claim benefits under Articles 15 and 16 of the Constitution.”

Further in Clauses 5(vi) and 5(vii) of the concluding paragraph of the majority judgment, the Supreme Court had stated,

“(vi)The Commission set up under Article 338B shall conclude its task expeditiously, and make its recommendations after considering which, the President shall expeditiously publish the notification containing the list of SEBCs in relation to states and union territories, for the purpose of the Constitution.

(vii) Till the publication of the notification mentioned in direction (vi), the existing lists operating in all states and union territories, and for the purposes of the Central Government and central institutions, continue to operate. This direction is issued under Article 142 of the Constitution of India.”

Hence, according to the above pronouncement, it is for the President to specify the socially and educationally backward classes in relation to a State after due consultation with the Commission set up under Article 338-B of the Constitution.

Noticing the fact that the impugned order was issued after the 102nd Amendment to the Constitution, the Bench held that the inclusion of Nadars in the State belonging to Christian religious denominations other than SIUC in the list of socially and educationally backward classes was otherwise than in accordance with Article 342-A of the Constitution. In such circumstances the Court was to determine whether the Supreme Court had saved the additions made to the lists of socially and educationally backward classes operating in the States after the 102nd amendment to the Constitution and before the judgment in Jaishri Laxmanrao Patil’s case till the President specifies the socially and educationally backward classes in relation to the States.

The Bench opined that it was evident from paragraph 670 of the judgment that the lists of socially and educationally backward classes operating in the States would continue to hold the field till the President publishes the comprehensive list. In other words, the direction had been issued by the Supreme Court with a view to ensure that Article 342-A does not leave a vacuum with respect to the entitlement of socially and educationally backward classes to claim benefits under Articles 15 and 16 of the Constitution till the President specifies the socially and educationally backward classes.

In the light of the above, the Bench was of the view that the Supreme Court’s decision in Jaishri Laxmanrao Patil’s case did not intended to save the additions made to the lists of socially and educationally backward classes operating in the States after the 102nd amendment of the Constitution till the President specifies the socially and educationally backward classes. Accordingly, the petition was allowed and the impugned order was stayed.[S.Kuttappan Chettiar v. State of Kerala, WP(C) No. 12575 of 2021, decided on 29-07-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

Counsels for the Petitioners: T.R. Rajesh, P.V. Shaji, Augustus Binu and Abhijith K. Anirudhan

Case BriefsHigh Courts

Kerala High Court: Satish Ninan, J., held that the mandatory requirement for disclosing Father’s name in Birth/Death Certificate was violative of Fundamental Right. Addressing the direction of Ministry of Home Affairs where instead of amending the format it had directed to leave the details of father vacant, the Bench stated,

“Requiring the petitioner to leave the column regarding the details of father as blank for the issuance of a certificate of birth or certificate of death necessarily affects the right of dignity of the mother as well as the child.”

Mandatory Requirement for Disclosing Father’s name in Birth/Death Certificate

The petitioner was a divorcee who had opted to get conceived by In Vitro Fertilization (in short, “IVF”) procedure. The identity of the sperm donor had been kept anonymous and had not been disclosed to the petitioner. The grievance of the petitioner was with regard to fulfilment of certain formalities for registration of the birth of the child, on delivery. In other words, the petitioner was aggrieved by the format of Rule 8 of the Kerala Registration of Births and Deaths Rules, 1970 which made it mandatory to disclose the name of the father of the child. The petitioner assailed the said provision on the grounds that she could not be required to provide the name of the father as the same would be violative of her fundamental rights, for reasons that:

  1. The identity of the sperm donor is kept anonymous and has not been and could not be disclosed even to the petitioner,
  2. such requirement intrudes upon her right of privacy, liberty and dignity.

In ABC v. State (NCT of Delhi) (2015) 10 SCC 1, the Supreme Court had held that, “There is no gainsaying that the identity of the mother is never in doubt. Accordingly, we direct that if a single parent/unwed mother apply 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.” 

Following in the abovementioned decision, the Ministry of Home Affairs, Government of India, had issued directions to the Chief Registrar of Births and Deaths throughout the country to have the birth of the child of a single parent/unwed mother to be registered showing the name of the single parent in the birth record leaving the name of the other parent blank. The petitioner argued that to leave the column relating to the name of the father in the prescribed form as blank, interferes with the right of dignity, privacy and liberty.

Registration of Births and Deaths Act, 1969 Section 8(1) of the Act requires the particulars sought for in the forms prescribed by the State Government, to be furnished to the Registrar.

Reliance was also placed by the petitioner on the decision of the Supreme Court in Suchita Srivastava v. Chandigarh Admn. 2009 (9) SCC 1, wherein the Court had held that, reproductive choice of a woman is a fundamental right encompassed under Article 21 of the Constitution of India. The right to procreate as well as to abstain from procreation has been recognized as a colour of the right of personal liberty.

Findings of the Court

In K.S.Puttaswamy v. Union of India, 2017 (10) SCC 1, it was held by the Supreme Court that personal choice governing a way of life are intrinsic to privacy and one of the connotations of “privacy” includes decisional autonomy which comprehends intimate personal choices such as, those governing reproduction as well as choice expressed in public such as, faith or modes of dress.

In the year 2005, the Ministry for Health and Family Welfare, Government of India had issued “National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India” with regard to functioning of ART clinics in India, which states:

“3.5.2 There would be no bar to the use of ART by a single woman who wishes to have a child, and no ART clinic may refuse to offer its services to the above provided…”

The Bench also took note of the “The Assisted Reproductive Technology (Regulation) Bill, 2020”, and opined that rights of a single woman for reproductive decisions and personal choices having been recognized as a constitutional right, there are instances where single/unwed women choose to have child through Assisted Reproductive Technologies (ART).

Hence, the Bench stated that when the identity of the donor was not disclosed to the petitioner there was no rhyme or reason in requiring the petitioner to provide the name of the father in the form prescribed for registration of birth and death. The Bench held that the concept of conceiving through ART had been foreign to this country a few decades back till the first “test tube baby” was born but now when the right of a single parent/unwed mother to conceive by ART had been recognized, prescriptions of forms requiring mentioning of name of father, the details of which is to be kept anonymous, was violative of the fundamental rights of privacy, liberty and dignity and it was for the State Government to bring out appropriate forms for registration of births and deaths, and also certificates of births and deaths, in such cases.

Verdict

In the light of the above, the Bench directed the State of Kerala to provide a separate form to such applicants which do not contain the field regarding the name and other details of the father. In so far as certificate of death was concerned, the Bench was of the view that it would suffice if in the column where the name of the father or husband is sought for, another entry could be made as that of the mother (like Father / Husband / Mother). Additionally, noticing that the petitioner was in the 8th month of pregnancy, the Bench directed that the necessary steps should be taken immediately.[X v. State of Kerala, WP(C) NO. 13622 of 2021, decided on 13-08-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: Adv A.Aruna

For the Respondents: Govt. Pleader M.H.Hanil Kumar and S.Krishna, CGSC

Case BriefsHigh Courts

Kerala High Court: Devan Ramachandran, J., addressed the grievances of a woman whose request for maternity leave was turned down by the State and to then exacerbate her agony, she was terminated from service on the accusation of unauthorised absence. Voicing the plight of the pregnant women in general, the Bench stated,

“Life as a new mother is like being on a roller-coaster and being a working mother is tougher. The minutiae of motherhood can never be properly contemplated and it involves navigation through myriad daily issues, which ultimately determine the health and future of the child.”

The petitioner had been working as a Counsellor on contract ever since 16-12-2016 in the Office of respondent 3- District Child Protection Officer, albeit, with a day or two break and every time her contract was extended annually. Evidently, she was engaged in such capacity between 23-08-2020 and 17-01-2021 only on daily wage basis and during that period, she gave birth to her child on 28-11-2020, thus constraining her to avail maternity leave from 26-11-2020 to 17-01-2021.

The petitioner submitted that her request for maternity leave had not yet been acceded to; and in the next process of selection, she again topped the list, thus was directed to join the post of Counsellor on 18-01-2021. However, since her child was only 51 days old then, and she had to breastfeed him regularly, she had again requested maternity leave. The petitioner contended that her request for leave was rejected by respondent 2– Director, Women and Child Development Department without assigning any cogent reason.

Later on, the respondent 2 had abruptly issued an order terminating her services on the ground of unauthorized absence.

The State argued that the petitioner was not entitled to have sought maternity leave one day after she joined service on contract; reliance in this regard was place on Note 4 to Rule 100 of Part I of the Kerala Services Rules by the state. Similarly, relying on the decision of the High Court in Jisha P.Jayan v. Sree Sankaracharya University of Sanskrit, 2013 SCC OnLine Ker 13323, the state contended that only a contract employee who has been in service for at least one year or more is entitled to maternity leave and therefore, the Authorities were justified in having issued orders terminating the petitioner’s service.

Going by the rigour of Note 4 to Rule 100 of Part I of the Kerala Services Rules, the Bench observed that a woman employee, who is on provisional service, would be entitled to maternity leave, provided she was continuing beyond one year. The Bench opined that there could be no doubt that petitioner was serving the respondent 3 as a Counsellor on contract for several years, with a day or two break and every time her contract was extended.

Therefore, the competent Authorities had a duty cast upon them to verify whether, in such circumstances, the petitioner was entitled to the benefit of maternity leave, but shockingly, instead of doing so, the respondent 2 had held prosaically that the petitioner’s request could not be acceded to; and, as if to blow most unkindest cut, it held that her absence was unauthorised, thus ordering termination of her contract employment and directing to appoint the next rank holder in the select list. The Bench held that the action of the respondent 2 was insensitive because it was without contest that petitioner gave birth on 28-11-2020; and since she asserted that she was under medical advice to nurse her child -being only 50 days old on when she accepted the latest contract.

To exacerbate the situation, the respondent 2 had even threatened action against the  respondent 3 for having selected and appointed the petitioner “without proper care”, thus insinuating that he ought not to have offered employment to her solely because she had recently delivered, thus being in need for leave to care her child. Opining that such attitude could not be countenanced in this century when women take on variegated responsibilities and require to adept multi-taskers, to survive and find wings to achieve their legitimate ambitions, the Bench stated that,

“The orders impugned in this writ petition can only serve to undermine the confidence and morale of persons like the petitioner, who bravely face the challenges of life every day, with the steely resolve to balance their personal and official life to the best of their capacity.”

Hence, noticing that the petitioner had not been substituted and that the post remained vacant, the Bench set aside the impugned orders  with a direction to reinstate the petitioner in service forthwith and to reconsider her application for leave after affording her an opportunity of being heard as expeditiously as possible, but not later than two weeks. Additionally, the authority concerned was directed to consider how the petitioner’s period of service from 23-03-2021 will require to be regularized.[Vandana Sreemedha J. v. State Of Kerala, WP(C) No. 10206 of 2021, decided on 26-07-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: Sru. B. Mohanlal, Advocate

For the State of Kerala: Sunil Kumar Kuriakose, Government Pleader

Appointments & TransfersNews

Appointment of Additional Judges

President appoints the following  to be Additional Judge of Kerala High Court for a period of 2 years:

  • Shri Mohammed Nias Chovvakkaran Puthiyapurayil
  • Shri Viju Abraham

[Notification dt. 11-08-2021]

Ministry of Law and justice

Case BriefsHigh Courts

Kerala High Court: The Division Bench comprising of A. Muhamed Mustaque and Kauser Edappagath, JJ., held that merely for the reason that the law does not recognise marital rape under penal law, it does not inhibit the court from recognizing the same as a form of cruelty to grant divorce.

Expressing concern over situation as it exists with regard to arranged marriage that is followed traditionally in our country; the Bench stated that the choice for a woman is limited as they simply follow the guidance of parents or elders. The Bench further stated that if marriage is seen as a symbol to project status, without reflecting the values the individuals or society would cherish to profess, we may miss the basic concept required for marriage. Voicing the plight of the respondent in the instant case, the Bench expressed,

“The case in hand depicts a story of the struggle of a woman within the clutches of law to give primacy of choice “not to suffer” in the bondage of legal tie. An insatiable urge for wealth and sex of a husband had driven a woman to distress. In desperation for obtaining a divorce, she has forsaken and abandoned all her monetary claims. Her cry for divorce has been prolonged in the temple of justice for more than a decade (12 years). She still awaits a final bell to answer her prayers and cry.”

Facts of the case

The instant appeal arose from a common judgment allowing a petition for divorce on the ground of cruelty and dismissal of a petition for restitution of conjugal rights. The couple had an arranged marriage and had two children in the wedlock. The appellant-husband had claimed to be a qualified medical doctor at the time of marriage but he never practised as a medical doctor and was rather engaged in the real estate business and construction. The real estate business was not a smooth run for the appellant as he never succeeded in the business.

A case of cruelty was put forward by the respondent-wife on constant harassment and demand for money in spite of the fact that she had been given 501 gold sovereigns at the time of marriage besides car and flat. It was the case of the respondent that the respondent’s father gave Rs.77 lakhs to the appellant on different occasions apart from that the respondent contended that the entire gold ornaments were also misappropriated by the appellant. The respondent also alleged sexual perversion and physical harassment as a part of the cruelty; while the allegations of extramarital relationship were levelled against the respondent by the appellant.

The Family Court had allowed the divorce petition filed by the respondent and the petition filed for restitution of conjugal rights by the appellant was dismissed.

Analyses and Opinion of the Court  

Noticing that the appellant’s own father had approached the police with complaints against the him stating that he had been compelling him to give more money, been ill-treating his wife and members of her family, and even threatening his sister and her two children over the phone daily with danger to their lives, the Bench stated that the ‘cruelty’ reflects the character of a person. The Court, therefore, is required to adopt social semiotic approach to analyse the conduct in given situation.

Opining that the demand for money had to be taken into account in the background of the fact that the appellant never cared to provide love and care to the respondent or his children, the Bench was of the view that in the matrimonial life of the appellant and the respondent, the respondent never felt any security or affection or care from the side of the appellant. This, coupled with the fact of constant harassment demanding money, had caused mental pain, agony and sufferings to her.

The physical cruelty and mental cruelty meted out to the respondent had been narrated succinctly in the oral testimony given by the respondent. In spite of the respondent having helped the appellant monetarily in every possible manner, it turned to be a strategy for the appellant to get more money from the respondent and her father in the pretext of his debt using his fiduciary relationship for financial gain and bargain.

Relying on the decision of the Supreme Court in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, the Bench held that the appellant’s licentious and profligate conduct could not be considered as part of normal conjugal life. Therefore, the Bench held that insatiable urge for wealth and sex of a spouse would also amount to cruelty. Similarly, the unsubstantiated allegations of adultery alleged by the appellant also constituted mental cruelty.

Marital Rape as a Ground for Divorce

The respondent had deposed that even during her pregnancy, the appellant abused her and had committed forceful sex when she was sick and bedridden. She also deposed that she was subjected to the worst form of sexual perversion and unnatural sex against her will. The respondent deposed that the appellant even did not spare her for sex even on the day the appellant’s mother expired. She also stated that the appellant forced her to have sex in front of their daughter. Considering that there was no serious challenge against the narration of sexual conduct, the Bench opined that there was no reason to disbelieve the respondent’s version that the appellant often forced her to have unnatural sex.

Opining that a husband’s licentious disposition disregarding the autonomy of the wife is a marital rape, the Bench stated, albeit such conduct could not be penalised, it falls in the frame of physical and mental cruelty. Marital rape, though alien to Indian penal jurisprudence, had been defined in Black’s Law Dictionary 8th Edition as “a husband’s sexual intercourse with his wife by force or without her consent”. Hence, marital rape occurs when husband is under notion that body of his wife owe to him. In modern social jurisprudence, spouses in marriage are treated as equal partners and husband cannot claim any superior right over wife either with respect to her body or with reference to individual status. Treating wife’s body as something owing to husband and committing sexual act against her will is nothing but marital rape.

Right to respect for physical and mental integrity encompass bodily integrity, any disrespect or violation of bodily integrity is a violation of individual autonomy. Therefore, marital privacy is intimately and intrinsically connected to individual autonomy and any intrusion, physically or otherwise into such space would diminish privacy. This essentially would constitute cruelty. Hence, merely for the reason that the law does not recognise marital rape under penal law, it does not inhibit the court from recognizing the same as a form of cruelty to grant divorce. Accordingly, the Bench held that marital rape is a good ground to claim divorce.

Findings and Suggestions by the Court

Considering that sex in married life is the reflection of the intimacy of the spouse and the evidence of the respondent clearly established that she was subjected to all sorts of sexual perversions against her will, the Bench upheld the divorce granted by the Family Court.

The Bench opined, a spouse in a marriage has a choice, a choice not to suffer, which is fundamental to the autonomy guaranteed under natural law and the Constitution. Law cannot compel a spouse to suffer against his or her wish by denial of divorce by the court. Expressing concern over plight of the women caught in such marital ties, the Bench expressed,

“This depicts a sordid tale of a woman losing a precious part of her life in a battle of fate. In a changed scenario of marriage in the society, shifting from the social philosophy to individual philosophy, we are afraid whether the present divorce law on enumerated grounds would stand to the test of constitutionality”.

Observing that fine balancing of individual choice and individual’s best interest is missing in law relating to dissolution of marriage, the Bench made following suggestions to introduce reform in existing law:

  1. “Paternalistic intervention through legislation must be limited to help and aid parties in taking a decision for their own good. Therefore, the framework of divorce law must be with an objective to help individuals to take a decision on their own affairs.
  2. The forum provided under law to decide upon the fate of a relationship must be conceded with a power to enable parties to decide on the best possible choice governing their own affairs by themselves and not by wresting the power on a fictional ground to decide on their fate.
  3. The court should articulate its power in a scientific temper to help individuals to make decisions on their own affairs.
  4. Modern-day mediation, medical help like psychological and psychiatric, involvement by families and friends etc., would progressively help the parties to take a decision of their own choice.
  5. Our law also should equip to deal with marital damages and compensation. We need to have a law dealing with human problems with a humane mind to respond.
  6. Marriage and divorce must be under the secular law; that is the need of the hour. Time has come to revamp the marriage law in our country.”

[X v. X, Mat. Appeal No. 151 of 2015, decided on 30-07-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Appellant: (Party in person)

For the Respondent: Adv. Millu Dandapani

Case BriefsHigh Courts

Kerala High Court: In a historic decision the Division Bench of K.Vinod Chandran and Ziyad Rahman A.A., JJ., held that the sexual act of penetration committed between the thighs of the victim held together is an act of manipulation of the body of the victim to obtain sexual gratification, and the same falls within the ambit of the amended definition of rape.

The instant case raised before the Court unfortunate instances of repeated sexual assault of various degrees, on a minor girl by a neighbour, who is married with children. To be precise, the Bench was to decide the question whether, the penetration to “any part of the body of such woman” as mentioned in section 375(c) of the Indian Penal Code, brings within its ambit a penile sexual act committed between the thighs held together; which do not qualify to be called an orifice?

Additionally, does the extended definition intend to cover any manipulation of the body of a woman in such a manner as to simulate an effect, providing sexual gratification, akin to penile penetration; was the question before the Bench.

Factual Fulcrum

The incident came in light when in a medical camp conducted in Thirumarady Government School the victim revealed certain incidents of sexual assault committed on her, by her neighbour during the course of examination. However, it was only after the Child Line authorities pursued upon it an FIR was filed by the victim’s family.

After evaluation of the entire materials, the Special Court found the appellant/accused guilty of the offences under S11(i) r/w 12, 9(l) (m) r/w. 10, S. 3(c) r/w 5 (m) and S.6 of the POCSO Act, S. 375(c) r/w Sections 376(2) (i), 377, 354, 354A(1)(i) of IPC and was sentenced to undergo imprisonment for various terms including life imprisonment.

The victim had revealed multiple instances of sexual assaults such as, making her to hold the genitals of the appellant till he ejaculated, showing obscene pictures, attempt to put his penis into the mouth of the victim, the incident of sexual acts between her thighs and pushing it up and down followed by ejaculation. She also stated about various incidents of touching her private parts and chest.

As per the prosecution case, the sexual act alleged against the accused was that of inserting the penis of the accused between the thighs of the victim; which would not amount to rape as defined under section 375(c).

Analysis and Opinion by the Court

On inconsistencies in Victim’s Statements

The Bench had taken the view that though there were certain inconsistencies and variations in the statement of victim, but that by itself could not be a reason to discard the evidence in its entirety as it is a well settled position of law that, in such circumstances, the attempt of the court should be to separate the grains of truth as discernible from the entire evidence. Moreover, the deviations were only in respect of the irrelevant particulars of the incidents such as, the persons who were present in the house at the relevant time, number of occasions of assaults etc. However, overall reading of the evidence reveals that, sexual assaults of varying degrees were committed on her by the appellant on several occasions. Noticing that the victim was in 6th standard at the time of the incident, the Bench expressed,

“We cannot assume that, she would be able to narrate the specific details of repeated acts merely from her imagination. Moreover, the language and expressions used by her for describing the sexual acts and the sexual organs clearly convey her unfamiliarity with the sexual acts…We cannot expect that an ordinary school going girl from a village area would have such capacity to imagine stories of that nature for falsely implicating the appellant.”

Therefore, denying the objection raised by the accused regarding veracity of the victim’s statements, the Bench stated that it would not have been possible for her to narrate incidents of this nature with such clarity, unless she was subjected to such acts. Therefore, it was held

that the deposition of the prosecutrix inspired confidence, and the discrepancies/inconsistencies pointed out by the appellant, were not of any significance and did not affect the credibility of her statement.

Evidence has to be weighed and not counted

On the objection with regard to absence of any corroborating evidence, the Bench stated that the incident in question could not have any ocular evidence because sexual offences are usually committed in utmost secrecy and when nobody is available, moreover, it had to be noted that the incidents of sexual assault were committed about eight months prior to the date of registration of crime and it was not possible to get any scientific evidence. The medical examination of the victim also could not have provided any evidence, as the specific case of the prosecution is commission of sexual assaults with the penis placed between the thighs to simulate a coitus and not penetration into any of the natural orifices of the victim.

The Bench opined that legal position regarding the conviction on sole testimony of prosecutrix even without any corroboration is now well settled through a large number of decisions. In Vijay v. State of Madhya Pradesh (2010 (8) SCC 191), it was held by the Supreme Court that, “the statement of the prosecutrix, if found to be worthy of credence and is reliable, it requires no corroboration. The court can convict the accused on the sole testimony of the prosecutrix.”

On Delay in filing FIR

The sexual assaults came to light during the medical camp conducted in the school of the victim on 14-01-2015 and it was reported that the incident took place six months prior to the said date. Noticeably, the FIS of PW3 was submitted only on 09-03-2015 and the FIR was registered on 10-03-2015.

Regarding the delay in disclosure of the alleged acts and delay in registering the FIR, the Bench was of the view that the delay in disclosure was only natural since the victim deposed that she was threatened with police action, if disclosure is made of the sexual assaults to her parents. The Bench expressed,

“We perfectly understand the effect of a threat so leveled especially to a school going girl who was sexually abused against her wishes. The abhorrent act would definitely have left a scar in the mind of the victim and it is not easy of disclosure; the ramifications of which probably eluded her.”

Hence, the Bench found the delay on the part of the victim was justifiable. Further, considering the mental state of the mother of the victim and her family, of being saddled with the disrepute of a rape and that its consequences could not be wished away, the Bench opined that on being faced with the circumstance of a neighbour having sexually violated a school going child it was only natural for the family of the victim to go on denial mode and not report the same for reason of the consequent ill-repute to the family. The Doctor obviously reported the matter and the Child Line authorities pursued it upon which the victim’s family had no option. The whole scenario belied the defence set up of the victim having spoken on the instigation of the mother because if it were so the victim’s family would have immediately registered the crime.

Is mere admission by the accused with regard to victim’s age sufficient to consider victim a minor and hold the accused guilty in POCSO Act?

“We painfully notice that there is a callous lapse on the part of the prosecuting agency and the Court too failed to alertly intervene to cure such defect victim. The only mention of her age is where the Sessions Court questioned PW1 as part of verification of her capacity/competence to depose.” 

Noticing that the sole reliance with regard to prove the age of the victim was based by the prosecution on the statement of accused under section 313 CrPC wherein he had admitted her age as 11 years, the Bench stated that, the case of the prosecution, particularly in those aspects which form the basic ingredient of any offence, cannot rest on the shoulders of the accused.

Similarly, the statements made by the witness during ‘voir dire’ is not substantive evidence and only assures the Court of the competence to testify and understand the proceedings and could not have the character of an incriminating material brought out in the evidence led on trial. Hence, the Bench held that the lack of evidence as to the age of the victim was a serious lapse on the part of the prosecution and the same made the charges under the provisions of POCSO Act unsustainable. The Bench stated, age is the most significant and basic element to attract the offences under that Act and unless it is established by adducing positive evidence, the rigour of the provisions in the POCSO Act cannot be pressed into service.

Whether sexual act between thighs of the victim amount to Rape?

Noticeably, the sexual act of highest degree alleged against the appellant was that, he had inserted his penis between the thighs of the victim; therefore, the defence side contended that such an act would not attract the offence of rape as defined under section 375.

Analysing the legislative history of definition of “rape” as it now stands and the evolution thereof through judicial precedents and statutory amendments, the Bench stated that the definition of ‘rape” had under gone a sea change as per amendment vide Criminal Law Amendment Act, 2013.

Definition of rape After Criminal Law Amendment, 2013

  1. “A man is said to commit “rape” if he –

c. …manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or”

 Since the offence was committed prior to 2018 amendment of Criminal Law regarding rape, the Court weighed on section 375 as it stood after the amendment in 2013. Unlike the old definition of rape the amended definition takes in all forms of penetrative sexual assault onto vagina, urethra, anus or any other parts of the body so manipulated to get the feeling or sensation of an orifice.

Opining that in the amended provisions, the legislative intention is very evident, the Bench stated that the words “or any part of body of such woman” as used therein, required wider interpretation so as to include any orifices naturally present or any part of the body manipulated to simulate a penetration and have the effect/sensation of an orifice.

Interpreting the said definition the Bench emphasised on the word “manipulation” which by itself includes an artificial creation. Hence, the Bench stated that the effect of manipulating the thighs to be held tightly together is to cause penetration of the crevice, when the muscles engulf the object which penetrates to create or simulate the same effect as in a normal penile-vaginal intercourse. The dictionary meaning of “manipulate: includes “control or influence cleverly or unscrupulously.” The word penetration means: “a movement into or through something or someone”.

Hence, it was held by the Bench that when the body of the victim is manipulated to hold the legs together for the purpose of simulating a sensation akin to penetration of an orifice; the offence of rape is attracted. When penetration is thus made in between the thighs so held together, it would certainly amount to “rape” as defined under Section 375.

Whether the said Act falls in category of unnatural sex under Section 377 of IPC?

Although, in State of Kerala v. Kudumkara Govindan, 1968 SCC OnLine Ker 138, the Court had dealt with commission of a sexual act of very same nature and it was held that sexual act committed between the thighs would attract the offence under Section 377 as it is against the order of nature, the Bench opined that a penetrative intercourse which earlier fell under Section 377 has been culled out from there and is placed under Section 376 by virtue of the expanded definition of rape under section 375. Section 375 as amended by Act, 2013, widened the definition of “rape’ by expanding its ambit beyond the penile penetrative assault into vagina, therefore, several penetrative sexual assaults, which would otherwise be triable under Section 377, now come within the operative field of Section 375.

Hence, the Bench held that the acts committed by the appellant/accused fall within Section 375, and Section 377 would not be attracted. Accordingly, the conviction of the appellant under Section 377 of IPC was set aside.

Verdict

In the light of the above, the Bench reached to the conclusion that the appellant had committed the offence of rape as he had penetrative sexual act between the thighs of the victim held together; an act of manipulation of the body of the victim to obtain sexual gratification, which culminated in ejaculation. However, since the prosecution had failed to provide any evidence to prove the age of the victim, the conviction under the provisions of the POCSO Act and also under section 376(2)(i) of the IPC  were set aside.[Santhosh v. State of Kerala, 2021 SCC OnLine Ker 2967, decided on 02-08-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Appellant: Padmalayan, Public Prosecutor

For the Respondent: S. Ambikadevi, Spl. Govt. Pleader (For Atrocities against Women And Children And Welfare Of Women And Children)

Case BriefsHigh Courts

Kerala High Court: The Division Bench of S.Manikumar, CJ, and Shaji P. Chaly, J., rejected the petition seeking direction to the State government to re-consider minority status of Muslims and Christians in the State. The Bench stated,

 “Merely because there are a few people who are rich in the minority communities, one cannot be expected to understand that their richness is due to them belonging to minority communities and…it cannot be taken for granted that the entire members of the minority communities are economically and socially advanced.”

The instant petition was filed by the Citizen’s Association For Democracy, Equality, Tranquillity and Secularism (CADETS), an organization aiming to fight against discrimination on the basis of religion, caste, sex etc. and for maintaining equality among the citizens and peace and tranquillity in all fields of life and to uphold the principles of secularism. The grievance highlighted by the petitioner was in regard to the minority status continued to the Muslim and Christian communities in the State of Kerala, since according to the petitioner, the members of such communities have grown up to such a level in the fields of socio-economic and education, and therefore, their status was to be re-determined.

Whether Minority Status of Muslims and Christians in Kerala require Re-consideration?

The petitioner contended that the report of the Committee appointed by the State Government, namely Paloli Muhammed kutty Committee, was a falsely created one that suppressed the facts and figures so as to give undue advantage to the Muslim Communities.

The petitioner argued that neither the Constitution nor any other enactments have defined the term ‘minority’; even in the National Commission for Minorities Act, 1992 instead of defining minority, certain religious communities were included in the list of minorities by the Government.

The petitioner further pointed out the names of the Chief Ministers belonging to the minority communities to contend that the members of the Muslims and Christians in Kerala had enough representation in the Ministry and the assembly, hence, the petitioner contended that the minority communities were in an integral part of the decision-making process and were holding powerful, valuable, and substantial portfolios and were in the forefront of developmental activities.

Therefore, arguing that it was crystal clear that at no point of time, they were subjected to any sort of discrimination and there was no chance of any apprehension on their part that the majority communities will dominate them; the petitioner urged the Court to issue a writ of mandamus commanding the government to re-determine the minority status of Muslim and Christian Communities in Kerala and to re-assess the socioeconomic and educational progress of such communities.

Opinion and Analysis by the Court

Opining that the framers of the Constitution had considered in depth the issue with respect to the well being, protection, and welfare of the minority communities and that is the reason freedom of conscience and free profession, practice and propagation of religion was incorporated in Article 25 of the Constitution, the Bench stated,

“We have no hesitation to say that no citizen is expected to think, visualise or figure out a situation outside the aforesaid basic structure of the Constitution.”

Further, Articles 26, 29 and 30 speak in the same line which was also strengthened by Articles 14 and 15.  Therefore, the Bench stated that even if the minority is not defined under the Constitution, that will not in any way belittle, digress or dilute the importance of the obligations instilled in “we the people of India”, by the framers of the Constitution.

Hence, rejecting the contention that the term ‘minority’ is not defined in the Constitution so as to give any constitutional status to such communities, the Bench stated that it had no factual basis and legal foundation for the reason that, the discussion of the constitutional provisions would make it clear that the framers of the Constitution were so careful and doubly cautious in providing various protection under the Constitution with the noble object of protecting and safeguarding the interest of the minorities. The Bench opined,

“Merely because the term ‘minority’ is not defined under the Constitution of India, that would not take away the fundamental rights and guarantees conferred on the minorities under the Constitution of India and the laws which are fundamental in the governance of the nation.”

Similarly, rejecting the argument that the socio-economic conditions of such communities, especially the fact of their sufficient representation in the State Legislative Assembly and in the management and affairs of the private and self-financing educational institutions, would suggest that the communities in question had grown up to such a level that they do not require any beneficial treatment; the Bench clarified that,

“Insofar as the political leadership and choice of Chief Minister and Ministers are concerned, it is done by the political parties or the political coalition succeeded in the fray of general elections conducted and that would not have any bearing in the matter of considering the status of minority in terms of the guarantee under the Constitution.”

And on the aspect of establishment of educational institutions by the members of the minority and any trust formed with members of the minority, the Bench stated that, “it is done on the basis of the right conferred as per Articles 29 and 30 of the Constitution, which is a fundamental right recognised by the framers of the constitution, which cannot be diluted or watered down in any manner.”

Verdict

Hence, holding that merely because there are a few people who are rich in the minority communities, one cannot be expected to understand that their richness is due to them belonging to minority communities and it cannot be taken for granted that the entire members of the minority communities are economically and socially advanced. The Bench stated,

“The National Commissions are well guided by the provisions of Act, 1992 and Act, 2004 and therefore, no manner of fetter can be created in whatever way for the independent functioning of the Commission by issuing any directions and that too, when the contentions put forth by the petitioner are substantially and materially surrounded by factual circumstances, which is not expected to be delved deep into by the writ court exercising powers under Article 226.”

Thus, cogitating the legal and factual aspects, the Bench held that the petitioner had not made out any case of arbitrariness, illegality, unfairness or other legal infirmities justifying the Court to exercise the power of discretion conferred under Article 226.[Citizen’s Association for Democracy, Equality, Tranquillity and Secularism v. Union of India, 2021 SCC OnLine Ker 2931, decided on 29-07-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

 Counsels for the Petitioner: C.Rajendran and K.Vijayan

Counsels for the Respondents: Krishnadas P.Nair, CGC and Tek Chand, Sr. Government Pleader

Case BriefsHigh Courts

Kerala High Court: P.B.Suresh Kumar, J., invoked the doctrine of parens patriae to permit termination of eight weeks pregnancy of a medically unsound rape victim.

 The instant petition was filed by Kerala State Legal Services Authority espousing the cause of a hapless rape victim diagnosed with psychosis. The victim was found wandering within the limits of Kazhakoottam Police Station and was taken by the Police initially to a psycho-social rehabilitation centre and then to the Mental Health Centre.

The Medical Board at the Mental Health Centre found the victim to be pregnant, having gestation period corresponding to eight weeks as on 04-06-2021. As the relatives of the victim could not be traced, the Superintendent of the Mental Health Centre apprised the plight of the victim to the District Legal Services Authority and the writ petition was filed on that reference, seeking orders granting permission for medical termination of the pregnancy of the victim alleging that in terms of the provision contained in Section 3(4)(a) of the Medical Termination of Pregnancy Act, 1971, the victim being a major, her consent was required for terminating the pregnancy, but the victim was not in a position to grant such consent for termination of the pregnancy.

Perusal of Certificate issued by the Medical Board indicated that the victim was suffering from mental retardation with psychosis and was under treatment as an inpatient. It was recited in the said Certificate that the victim was unable to take decision or communicate her opinion.

The report submitted by the Medical Board stated that though continuation of the pregnancy did not endanger the life of the victim, there was a high risk for the mother and baby, as the victim was on multiple anti-psychotic medication. Continuation of pregnancy was riskier than termination at that in view of expected maternal complications due to the present mental status. Therefore, the Medical Board opined that the patient required observation and detailed evaluation, so as to comment upon her mental status conclusively and also to assess the capacity to take decision on her own.

In the light of the provision contained in sub-section (2)(b)(i) of Section 3 of the Act, 1971 and Explanation 2 to the said sub-section, the Bench held that the pregnancy was one that could be terminated on the basis of the opinion of two medical practitioners. As noted, the impediment in the matter of terminating the pregnancy of the victim was that she was not in a position to give consent for the same.

Reliance was placed by the Court on Suchita Srivastava v. Chandigarh Admn., (2009) 9 SCC 1, wherein it was held that, “one among the said tests is the test of “best interests” which requires the court to ascertain the course of action which would serve the best interests of the person in question.”

Having regard to the fact that the person involved in the case was a rape victim and considering the opinion of the Medical Board, the Bench invoked the Hence, invoking the doctrine of parens patriae, to hold it was in the best interests of the person concerned to permit termination of her pregnancy. The writ petition was allowed and the respondents were permitted to terminate the pregnancy of the victim at the earliest, without insisting on the consent of the victim. However, considering that the person involved was a rape victim, the Bench passed further directions ordering respondents to take the tissue of the fetus and maintain the same for DNA examination.[Kerala State Legal Services Authority v. Union of India, WP(C) NO. 12278 of 2021, decided on 26-07-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

Counsels for the Petitioners: K.P.Pradeep, T.T.Biju, T.Thasmi and M.J.Anoopa

Counsels for the Respondents: P.Vijayakumar, ASG and Initha B, Government Pleader