Balamuraly G Vs Vinod TR and Anr on 26 Oct 2023

A single judge of Kerala High Court held as follows.

From Para 6,

6. True, section 397 of the Code confers concurrent jurisdiction to the High Court as well as the Sessions Court to call for and examine the records of any proceedings before an inferior criminal court situated within its local jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order rendered in such proceedings. When the power of revision is concurrent, it may not be illegal for a person to approach the High Court instead of the Sessions Court with a prayer for revision of an order. A Full Bench of this Court considered in Sivan Pillai v. Rajamohan and others [1978 KLT 223] the question whether a revision, where it is maintainable in view of the provisions of Section 397(1) of the Code, in the High Court as well as a Sessions Court, should be pinned down to the Sessions Court. The view taken by the majority is that the salutary principle that where concurrent jurisdiction is conferred on two fora, the lower forum should be exhausted first has to be given a go by in view of the specific provision conferring jurisdiction by Section 397(1) of the Code both on the High Court and the Sessions Courts. That is the law. But
propriety demands the aggrieved, as far as possible, to first invoke the jurisdiction of the Sessions Court. It is apposite to approach the Sessions Court first for another reason also. That, the parties might be located in the Sessions Division concerned. In a revision petition any order, which causes prejudice to the accused, can be passed, in view of Section 401(2) of the Code, only after giving notice to him. Where the accused resides in a far away Sessions Division he has to be drawn to the High Court as though the matter can be heard and decided by the Sessions Court concerned without causing such an inconvenience. Therefore, it is just and appropriate for a party to invoke the jurisdiction of the Court of Sessions first, where the revision is possible by both the High Court and the Sessions Court, albeit there is no bar for the High Court to entertain the revision filed without exhaustion of the lower forum.

Vishnudas H. and Anr Vs Nil on 27 Jul 2020

Posted on April 29 by ShadesOfKnife

A division bench of Kerala High Court held that, a divorce petition is maintainable within 1 year from date of marriage, if there are Pleadings about Exceptional Hardship.

From Paras 8, 9 and 10

8. A reading of Section 14(1) of The Act, will show that, though the substantial provision provides a restriction in entertaining an application for dissolution of a marriage before the lapse of one year from the date of marriage, the proviso permits the court to grant leave to present the petition before the lapse of one year from the date of marriage, if the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent. The proviso to the section creates two instances where the court can grant leave to excuse time limit i.e., exceptional hardship to the petitioner or exceptional depravity to the respondent.
9. It is common knowledge that none enters into a marriage for the purpose of dissolving it. Certainly, at the time when the marriage vow is taken or the knot is tied, the intention is to create a permanent bond. However, human nature being a complex one, the error in judgment could be realized instantly or belatedly. When that error in judgment is realized, instantly, as it has happened in the present case, a window is provided by law, through the proviso, against the bar under Section 14(1) of The Act, for persons like the petitioners, to shorten their mental trauma by seeking permission to waive the one year period, of course, on satisfying the conditions stipulated.
10. What is an exceptional hardship to the petitioner and what would be the exceptional depravity for the respondent, are matters which the court will have to identify, based on the factual situation that arise in each individual case. These two terms cannot be defined or explained in a straight-jacket formula, but will depend upon the circumstances of each case. Allegations that may be sufficient to grant a decree of divorce may not, in all cases, constitute the ‘exceptional hardship’ contemplated under the section. The factors that shall be weighed by the court while deciding a petition for grant of leave to present a petition for divorce are inter alia, reasonable probability of a reconciliation between the parties, interests of children in the marriage, as is indicated in Section 14(2) of The Act. With the above factors in mind, the terms exceptional hardship and exceptional depravity ought to be appreciated by the court by stepping into the shoes of the petitioner or the respondent, as the case may be. In our system of adversarial jurisprudence, when, parties who are discrepant in all aspects, are in accord that continuance of the relationship causes more hardship to them, in the absence of materials to the contrary, Court need not and cannot disbelieve their affirmations, especially at the initial stage of granting permission to present a petition for divorce. The power conferred under the latter part of the proviso to Section 14 of The Act is sufficient safeguard against misrepresentations or concealment in obtaining the above referred permissions.

From Paras 16 and 17,

16. A reading of the petition seeking permission in the instant case, as has been narrated earlier, shows that within few hours of the marriage, the petitioners separated from their companionship. It is jointly stated that neither had they lived together as husband and wife nor did they have any physical relationship. All attempts for mediation failed and their relationship has irretrievably broken down. The very fact that they have jointly stated that continuance of their relationship would cause more stress and trauma and that there is absolutely no trace of any stress or trauma in dissolving the marriage, speaks volumes about the exceptional hardship that will be caused to the parties to the marriage, if they are statutorily compelled to wait for a further period of time so as to merely satisfy the legal prescription of expiry of one year from the date of marriage. Both of them have also stated, together, that further delaying the dissolution of marriage has a propensity to cause damage to their career as well as their future prospects of marriage. They have also affirmed that their views are irreconcilable. When, in unison they state that continuance of marriage is more traumatic than dissolution of marriage, and that they lived together as husband and wife only for few hours, it satisfies the test of exceptional hardship contemplated under the proviso to Section 14(1) of The Act, to be granted the benefit of waiver of the period of one year.
17. A reading of the impugned order of the Family Court indicates that the court was moved more by general principles of morality rather than the specific case of the parties to the marriage. We cannot agree to the reasons stated in the impugned order.

Vishnudas H. and Anr Vs Nil on 27 Jul 2020

Index of Divorce Matters here.

Rajesh and Anr Vs Station House Officer and Ors on 05 Dec 2022

Posted on April 21 by ShadesOfKnife

A single judge of Kerala High Court held that, ‘the existence of a domestic relationship between the complainant and the respondent is the sine qua non for seeking relief under the DV Act‘.

From Para 9,

9. The existence of a domestic relationship between the complainant and the respondent is the sine qua non for seeking relief under the DV Act. The complainant should be a woman who is, or has been, in a domestic relationship with the respondent against whom there is an allegation of domestic violence. No relief under the DV act can be granted unless a domestic relationship between the complainant and the respondent is established. Domestic relationship, as statutorily defined,presupposes that the respondent and the complainant lived or have lived together in a shared household when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. A “shared household” is defined in section 2(s) as a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or with the respondent. The fact, as stated in Ext.P2 application itself, explicitly discloses that the petitioners are not related either with the 2nd respondent or with her husband by consanguinity, marriage or through a relationship in the nature of marriage or adoption, or not even a member of the joint family of the 2nd respondent’s husband, rather she was an erstwhile employee of the 1st petitioner. As stated already, it is vaguely pleaded in Ext. P2 that the petitioners are the relatives of the husband of the 2nd respondent. But, what exactly is the nature of the relationship has not been stated. At the same time, it is pleaded in paragraph 5 that while the 2nd respondent was working as an employee in the business establishment of the 1st petitioner, they became family friends, and the petitioners used to visit her house and stay there. The definition of ‘domestic relationship’ speaks of living together in a shared household at any point of time. Staying together occasionally by two family friends who are not related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or as members of a joint family is not sufficient to create a domestic
relationship.

From Para 11,

11. Unfortunately, the court below, even without ascertaining whether the basic ingredients to attract the provisions of the DV Act are there in Ext. P2 application, simply issued summons to the respondents therein. It also granted an interim protection order under section 23(2). Many petitions are filed before this court invoking section 482 of Cr.P.C. to quash the proceedings before the Magistrate exercising jurisdiction under the DV Act on the ground that those complaints are not sustainable under the DV Act. It is apparent from those petitions that it has become a common practice to convert some other dispute into a domestic violence complaint and rope in persons who have not been in a domestic relationship with the complainant as respondents in the applications instituted under the DV Act without any bona fides and with oblique motives, on the omnibus and vague allegations. Notice is invariably issued to the respondent in such applications without ascertaining whether the complainant is a woman who is, or has been, in a domestic relationship with the respondent against whom there is an allegation of domestic violence to qualify the status of an ‘aggrieved person’ as defined under section 2(a).

Rajesh and Anr Vs Station House Officer and Ors on 05 Dec 2022

Index of DV cases is here.

Rijas MT Vs Hafseena M on 15 Nov 2023

Posted on January 31 by ShadesOfKnife

A single judge of Kerala High Court held as follow:

From Para 29-32, (Regarding issuing of arrest warrants without following procedure u/s 421 Cr.P.C.)

29. Now, coming to the next question regarding the failure of the Family Court in not following the procedure for levy of fines as contemplated under Section 421 of the Code.
30. Section 125 (3) extracted above, stipulates that in case of failure of a person to comply with an order to pay maintenance without sufficient cause, then for every breach, the Magistrate has to issue a warrant for levying the amount due in the same manner provided for levying fines.
32. It is well-settled in a whole line of precedents that the Courts shall not order a warrant of arrest against a defaulter, without following the procedure under Section 421 of the Code.

From Para 33,

33. Nonetheless, after the pronouncement of the celebrated judgment in Rajnesh v. Neha (supra), a revolutionary change has been brought in the procedure to be followed by the courts in dealing with the applications filed under Chapter IX of the Code. The Hon’ble Supreme Court has issued comprehensive procedural and normative directions streamlining the maintenance laws, inter alia, directing that the parties in a maintenance application have to file affidavits of disclosure of their assets and liabilities, which must be considered by Courts while deciding the application. It is also held that, in case of a dispute on the declaration made in the affidavits of disclosure, the aggrieved person can seek leave of the Court to serve interrogatories on the opposite side and seek production of relevant documents as provided under Order 9 of the Code of Civil Procedure, and in case a false statement or misrepresentation is made, the Court can initiate proceedings under Section 340 of the Code or for contempt of court.
34. In the instant case, the Family Court, following the directions laid down in Rajnesh v. Neha (supra), directed both parties to file their affidavits of disclosure in the original proceedings. The revision petitioner filed his affidavit stating that he had no movable or immovable properties. Again, on the execution side, the Family Court directed the first respondent to file an affidavit regarding the assets of the revision petitioner, and she reiterated that the revision petitioner had no assets or properties. Based on the affirmation in the affidavits, that the revision petitioner had no movable or immovable properties, the Family Court issued a non-bailable warrant against the revision petitioner. I do not find any error or illegality in the procedure adopted by the Family Court in the post-Rajnesh era. Once a party declares on oath that he has no movable and immovable properties, it would be an empty formality to follow the procedure under Section 421 because, ultimately, the enquiry by the revenue authorities would yield the same result as disclosed by the parties on solemn affirmation. The exposition of the law in Rajnesh was to remove the stumbling blocks in the procedure and the inordinate delay being caused in the disposal of maintenance applications and the enforcement of the orders. It is trite, that procedural laws are handmaids of justice. Therefore, the dispensation of the procedure under Section 421 of the Code, in a case where the respondent disclosed that he has no movable or immovable property, is justifiable and sustainable in law. In the emerged scenario post Rajnesh, I do not find any meaningful purpose in the Courts ritualistically following the procedure under Section 421, especially after the respondent states on oath that he has no property, other than to prolong the miseries of the persons living in vagrancy.

Rijas MT Vs Hafseena M on 15 Nov 2023

Index of Maintenance cases here.

Sajith N.K. Vs Jishabai Puthukudi and Anr on 03 Aug 2023

Posted on January 16 by ShadesOfKnife

A single bench of Kerala High Court held that, perjury application cannot be filed u/s 200 Cr.P.C. but has to be initiated u/s 340(1) Cr.P.C.

From Para 7,

7. Here is a case where the respondent No.1 instead of approaching the court concerned (Family Court) where false evidence was given, straightaway approached the Magistrate Court with a private complaint under Section 200 of Cr.P.C. It is impermissible. A party who is aggrieved by the inaction on the part of the court, where offences enumerated in Clause (b) of Sub Section (1) of Section 195 Cr.P.C. was committed, in initiating action under Section 340 of Cr.P.C., can only move to such court with an application under Section 340(1). He cannot directly move the jurisdictional Magistrate Court with a private complaint under Section 200 of Cr.P.C. [See K.A.Kuttiah v. The Federal Bank Ltd. and Others (2006 KHC 715) and Shaji Thomas v. State of Kerala and Another (2014 KHC 2532)]. Hence, the court below was not justified in taking cognizance of the offences under Sections 196, 199, 200 and 209 of IPC based on Annexure 1 complaint. Thus, Annexure 2 order is not legally sustainable, and it is accordingly set aside. However, the respondent No.1 will be at liberty to file an application under Section 340(1) of Cr.P.C at the Family Court. If such an application is filed, the Family Court shall dispose of the same in accordance with law.

Sajith N.K. Vs Jishabai Puthukudi and Anr on 03 Aug 2023

Citations:

Other Sources:

Index of Perjury judgments is here.

Bijumon and Ors Vs The New India Assurance Co on 28 Feb 2023

Posted on March 9, 2023 by ShadesOfKnife

Bijumon and Ors Vs The New India Assurance Co on 28 Feb 2023

Source:

https://www.livelaw.in/news-updates/kerala-high-court-motor-vehicle-act-road-accident-notional-income-deceased-child-rs-30000-loss-of-dependency-223334

Vysakh K.G. Vs Union of India and Anr on 22 Dec 2022

Posted on January 6, 2023 by ShadesOfKnife

A division bench of Kerala High Court held that, if parties to certain cases insist that their personal details be erased from the Court systems, the Registry will oblige and not publish the same on it’s website.

From Para 64,

64. In summation, we hold as follows:
i. We declare that a claim for the protection of personal information based on the right to privacy cannot co-exist in an Open Court justice system.
ii. We hold that right to be forgotten cannot be claimed in current proceedings or in a proceedings of recent origin. It is for the Legislature to fix grounds for the invocation of such a right. However, the Court, having regard to the facts and circumstances of the case and duration involved related to a crime or any other litigation, may permit a party to invoke the above rights to de-index and to remove the personal information of the party from search engines. The Court, in appropriate cases, is also entitled to invoke principles related to the right to erasure to allow a party to erase and delete personal data that is available online.
iii. We declare and hold that in family and matrimonial cases, arising from the Family Court jurisdiction or otherwise and also in other cases where the law does not recognise the Open Court system, the Registry of the Court shall not publish personal information of the parties or shall not allow any form of publication containing the identity of the parties on the website or on any other information system maintained by the Court if the parties to such litigation so insist.
iv. We hold that the Registry of the High Court is bound to publish privacy notices on its website in both English and Vernacular languages.

Vysakh K.G. Vs Union of India and Anr on 22 Dec 2022

State of Kerala Vs Madhu @ Kutti Madhu on 6 Jan 2021

Posted on December 24, 2022 by ShadesOfKnife

A division bench of Kerala High Court held as follows regarding section 165 of Evidence Act.

From Para 80,

This Section is intended to empower the Judge with the most extensive power possible for the purpose of getting at the truth. The effect of this Section is that in order to get to the bottom of the matter before it, the court should be able to look at and inquire into every fact, whatever it be. A trial Judge, in order to discover or to obtain proper proof of relevant facts, may exercise wide powers. He may approach the case from any point of view and is not tied down to the ruts marked out by the parties. He can ask (1) any question he pleases, (2) in any form, (3) at any time, (4) of any witness, (5) or of the parties and (6) about any fact relevant or irrelevant. No party is entitled to object to any such Crl.Appeal No.1357 of 2019 & Crl.Appeal (V) No.33 of 2019 question or order or to cross-examine the witnesses without getting leave of the court. Therefore under Section 165 of the Evidence Act the court has a right to ask the witness any relevant or even irrelevant question and the parties or their counsel cannot raise any objection to any such question (Also see Sanjay Kumar v. State of Bihar- 2014 (1) SCALE 751).

State of Kerala Vs Madhu @ Kutti Madhu on 6 Jan 2021

Citations : [ILR (2021) 1 Ker 247 : 2021 1 KHC 351]

Other Sources :

https://indiankanoon.org/doc/65912246/

Ayishabi Vs Shahul Hameed on 16 July, 2014

Posted on September 12, 2022 by ShadesOfKnife

A Single judge of Kerala High Court held as follows,

From Para 5,

5. It is an admitted fact that, the petitioner filed M.C.155/2013 before the Judicial First Class Magistrate Court, Malappuram, under Section 12 of the Protection of Women from Domestic Violence Act (hereinafter called the Act), claiming reliefs under Section 18, 19 and 20 of that Act against respondents 1 to 3. It is also mentioned in the petition that, the petitioner also filed Crl.M.P.10228/2013 for interim relief, but that was also adjourned along with main case is the grievance of the petitioner. It is seen from the report that, respondents 1 to 3 appeared and they filed counter also and the matter was referred for mediation and according to the magistrate the mediation report in the case is awaited. But the counsel for the petitioner submitted that, the mediation failed and it is ripe for trial now. It is true that under Section 12(5) of the Act, it is stated that, the magistrate shall take all earnest endeavour to dispose of the case within sixty days of first hearing of the case. But unfortunately, such a mandate could not be fulfilled by the court on account of large pendency of cases before each court. But that cannot be a ground for adjourning the case indefinitely, when the statute mandates for early summary disposal of certain types of cases, which requires urgent attention of the court. Further, even if the court feels that, disposal of the main case will take some time on account of the large pendency of cases before that court, it should have made some attempt to dispose of the interim application filed in that case under Section 23 of the Act, as it is intended to provide interim protection for the aggrieved persons, against any alleged domestic violence in the shared house hold. So under the circumstances, this court feels that, the petition can be disposed of as follows:
The learned magistrate is directed to dispose of M.C.155/2013 pending before that court, as expeditiously as possible at any rate, within three months from the date of receipt of this order.

Ayishabi Vs Shahul Hameed on 16 July, 2014

Other Sources:

https://indiankanoon.org/doc/27041307/

Connects to a PIL here.

XXX Vs State of Kerala and Ors on 05 July 2022

Posted on August 8, 2022 by ShadesOfKnife

A single judge bench of Kerala High Court held as follows:

From Para 13,

13. I do not propose to go into the details of this case any further because, through the various interim orders already issued, the petitioner has
obtained relief – including DNA analysis of the foetus she was carrying, under the provisions of the Code of Criminal Procedure (Cr.PC). In fact, the learned counsel for the petitioner – Sri.Dheeraj Rajan, affirmed that no specific orders are now required and that a Final Report has also been filed by the Police.

From Para 14, (Invitation for views)

14. However, the trauma, which the petitioner has experienced and which may be forced upon victims in future, makes this Court to think in terms of having a Protocol for the purpose of empowerment of the victim – being gender neutral – to approach the law enforcement agencies and obtain succor and support in the initial stages of extreme fear, terror and despondency faced.
15. With the afore intent, I threw open discussions in this matter to the Bar, calling for suggestions from anyone who is interested in addressing this Court; and am glad that I did so because, I have had the benefit of the views and inputs from very eminent lawyers, both senior and junior.
16. The principles and imperative requirements of ‘Victim Protection Protocols’ are inexorably attracted whenever a sexual assault occurs; and I, therefore, requested the learned counsel appearing for the parties and who are assisting this Court upon the aforementioned invitation, as also the
learned Special Government Pleader – Smt.Ambika Devi, to offer their suggestions.

From Para 32, (Protocols follow)

Consequently, I order this writ petition, directing that protocols below are scrupulously followed in the case of a complaint regarding sexual attack or child abuse without exception:
a) The Government will, in addition to the steps taken earlier by it, continually publicize the Toll Free Number ‘112’ as an Emergency Support System to be known to every citizen, so that the victim of a child abuse or sexual assault can access it whenever required.
b) Every victim of sexual assault and child abuse must be encouraged to access the afore Toll Free Number or the Police Control Room Number ‘100’; and on such intimation being received, it will be fed into a digital system, to be then brought to the notice of the jurisdictional Police Station, for necessary steps under Section 154 of the Cr.P.C. In this regard, I record the undertaking of the State that a system as afore has already been put in place under the Emergency Response Support System (ERSS) Project.
c) This Court records the further undertaking of the State that calls made to the aforementioned Toll Free Numbers of ‘112’ and ‘100’ will only be
attended and responded to by well sensitized and trained personnel, who will make sure that the victim is given sufficient support from the inception, until the time she/he requires it thereafter.
d) On intimation of a sexual assault or child abuse being received by the afore Toll Free Numbers, the Police Control Room or the jurisdictional Police Station, will take immediate steps to contact the victim either personally or through phone without, however, summoning him/her to the Police Station.
e) While taking the statement of the victim, mandatory provisions of Section 157(1) of the Cr.P.C., namely, that same be recorded at his/her
residence or in the place of his/her choice and as far as practical, by a Police Officer in the presence of his/her parents/guardian/near relatives or social worker, shall be scrupulously complied with.
f) On the FIR being so registered, the investigating officer will forthwith assign a ‘Victim Liaison Officer’ in terms of the applicable circulars issued by the State Police Chief, who shall then contact the victim immediately so that he/she will feel safe and protected, being sure of such support.
(g) Simultaneous to the registration of the FIR or at the time when the Victim Liaison Officer is so assigned, the investigating Officer will disclose to the victim the numbers of the ‘One Stop Crisis Centre’ and that of the ‘VRC’, so that they can involve themselves and ensure that the victim suffers no further traumatisation and obtains the best psychological support and succor which, indubitably, is the sine qua non for the reparatory process of the victim’s psychological trauma.
(h) The Authorities concerned will ensure that the victim has constant access to the Victim Liaison Officer and to the ‘One Stop Crisis Centre/VRC’, as the case may be; and that this is made available 24 hours a day, at any time the victim requires it during his/her most difficult times.
(i) The ‘One Stop Crisis Centre’/’VRC’ is directed to offer not merely psychological assistance to the victim, but also legal support as may be required and will actively promote his/her return to normal life, through every possible facilitation as may be warranted. This shall continue as long as the victim requires, or until such time as the trial is completed.
(j) It is further ordered that the victim Liaison Officer (VLO), as also the ‘One Stop Crisis Centre’/’VRC’, shall make available every assistance necessary to the victim for the processes under Section 164A of the Cr.PC, and must actively guide and instruct, advising her/him of her/his rights under it, thus being able to exercise it diligently and with confidence.
The afore are, of course, not exhaustive; and I, therefore, leave liberty to any person, including the learned counsel for the parties or the members of the Bar, to seek any clarification from this Court, if so found necessary; in which event, more effective protocols for victim protection can certainly be thought of and incorporated.

XXX Vs State of Kerala and Ors on 05 July 2022

Shades of Knife

True Colors of a Vile Wife

Category: High Court of Kerala Judgment or Order or Notification

Balamuraly G Vs Vinod TR and Anr on 26 Oct 2023

Vishnudas H. and Anr Vs Nil on 27 Jul 2020

Rajesh and Anr Vs Station House Officer and Ors on 05 Dec 2022

Rijas MT Vs Hafseena M on 15 Nov 2023

Sajith N.K. Vs Jishabai Puthukudi and Anr on 03 Aug 2023

Bijumon and Ors Vs The New India Assurance Co on 28 Feb 2023

Vysakh K.G. Vs Union of India and Anr on 22 Dec 2022

State of Kerala Vs Madhu @ Kutti Madhu on 6 Jan 2021

Ayishabi Vs Shahul Hameed on 16 July, 2014

XXX Vs State of Kerala and Ors on 05 July 2022