Tag: #KeralaHC

-Report by Ishika Sehgal

A trial court found Kiran Kumar guilty in May 2022 after finding that he had subjected Vismaya to harassment and abuse connected to the dowry during the duration of their marriage. On Wednesday, the Kerala High Court issued a notice to the State government, the respondents in the appeal filed by Kiran Kumar challenging his conviction.

Last year, a 22-year-old Ayurveda medical student named Vismaya was found dead in her marital house under unexplained circumstances, apparently by suicide, after she had complained of dowry harassment. Her death shocked the entire state. Her spouse was therefore detained a day after the incident was made public because the death occurred less than a year after their wedding. Only a few days before she passed away, Vismaya shared images of bruises and wounds to her family members via WhatsApp, claiming that her husband was harassing her for dowry. After she was discovered dead, her family published screenshots of the WhatsApp conversation and voice messages she had sent. She had allegedly been physically abused by Kumar and his family since they weren’t happy with the “gifts” that had been presented to them for their wedding. Although the initial reports suggested suicide, it was eventually looked into as a possible homicide.

A trial court found Kiran Kumar guilty on all charges in May 2022, stating in its 441-page decision that he had harassed and abused Vismaya throughout the duration of their marriage in relation to the dowry. Sujith KN, an Additional District and Sessions Judge in Kollam, applied the following charges 304B, 306, and 498A of the Indian Penal Code,1860. And sections 2 and 3 of the Dowry Prohibition Act,1961.

It was submitted that there is no proof that the appellant in any way demanded or accepted dowry. He claims that he received the car as a gift, not as a dowry. The conversations used by the prosecution to show that he claimed dowry are just “references to his ideas” of the presents. The appellant consequently claimed that the prosecution had not presented any proof of the illegal demand. He claimed that disputes of a different kind, regardless of how hasty or accidental they may be, are not covered by Section 498A. In order to establish a presumption under Section 113 of the Indian Evidence Act, the prosecution was required to demonstrate that the deceased had been exposed to cruelty or harassment for dowry not long before the incident which they have failed to do.  Inadmissible utterances were accepted as dying declarations, he continued, and the contents of recorded phone calls and chats were incorrectly considered acceptable and proof of facts. The appellant has claimed that, in addition to a biased inquiry, he was also the target of brutal vilification and a media trial that the investigation agency used against him in various ways. Additionally, it has been claimed that the punishment he received was harsh and that he was never given the benefit of the doubt or even the presumption of innocence.

Justice Kauser Edappagath admitted the appeal and issued notice via the public prosecutor. The subject will be discussed a month from now.

The CNLU students open front against Administration over Fee Tussle as they are facing various problems due to arbitrary decisions taken by their administration. For this academic year (2021-22), their administration has increased their fees by Rs.12,000 as compared to the last online academic year. For the last 2 years, the students have been charged Rs.16,000 as “Facilities Fees” in which the facilities include Hostel Gym Fees, Hostel Wi-Fi & Internet Fees water-cooler fees and other facilities used by the students in physical classes. It is pertinent to note that in the wake of the COVID-19 pandemic since March 2020, the students have not used any of these facilities as their curriculum is being conducted online.

Thus, it is abundantly clear that the students have no access to these facilities as the entire curriculum is being conducted online from home. Hostel Gym, Hostel Wi-Fi Internet, Hostel Water cooler and other facilities used in the physical classes were not being used by the students in their Online semesters. But still, the students are being charged Rs.16,000 without any reasonable justification for past academic years.

This time the administration has also increased Rs.12,000 under these 3 heads:

• Infrastructure development Fees.
• Student welfare Fees.
• Development Fees.

That, their fees in absence of any guidance from the State, has been arbitrarily increased from Rs. 1,27,500 to Rs. 1,39,500 this year.

When the students approached the Vice-Chancellor to request and convey to the appropriate authority the problems being faced by the students due to the arbitrary inclusion of Facilities Fees which the students are not even using, the Vice-Chancellor Justice Mridula Mishra (Retd.) infuriated by the demands of the students dismissed the request on the vague justification that the students have no say in demanding relaxation in fees. In order to resolve any further conflict, the students also requested the Vice-Chancellor to form a body of students and faculty to communicate directly. However, the students were dismissed without any justification or reply.

In view of the request to waive off facilities fees, Hon’ble Kerala High Court in WP(C). No.17494 OF 2020(J) directed the NUALS, Kochi to re-consider the fee structure being implemented for the academic year 2020-21. Justice Amit Rawal in the order expressed his opinion that, “Be that as it may, it is a matter of record that since the physical classes have not yet opened. The University has not granted a 100% reduction under the Sports and Games fee, and Medical/ Gym / Fitness fee whereby reduction of 30% and 25% have been granted. In peculiar facts and circumstances of the case, I am of the view that 100% reduction on these two heads should have been given. Accordingly, I direct the Executive Council to re-consider the issue regarding considering the 100% waiver on these two heads.”

The students in view of the said judgement approached the Vice-Chancellor but to no avail. The voice of the students was neglected and out rightly rejected on the account that in absence of any order from the State, the University has no obligation to give any relaxation in the Fees.

The University had previously also witnessed such abuse of power by the Administration in 2018. After weeks of strong protest, the appropriate authority appointed Ret. Justice Mridula Mishra as an interim Vice-Chancellor and Ret. District Judge, Manoranjan Prasad Srivastava as an interim Registrar. Since 2018, there has been no notification for appointing permanent Vice-Chancellor and Registrar.

As of now, the students are facing grave emergency since only 5 days are left before the deadline of payment of fees, i.e., 20th August, after which till 31st August, a late fine of Rs. 500 will be charged for late payment of fees.

In such a scenario, many students might pay the fees in fear of being their results withheld. There will be another burden of Rs. 500 more, but this does not change the fact that the administration is arbitrarily charging the fees for the facilities the students are not using. So, with little time in their favour, the concerned students of Chanakya National Law University, kindly request their administration to reduce their “Facilities fees” being charged arbitrarily.

The students have also requested the students of other National Law Universities to come forward to support them – out of which they have received statement of solidarity from NLSIU Bangalore, DNLU Jabalpur and NLU Odisha.

Report By – Lexpeeps Anonymous Reporters

Kerala High Court on 6 August 2021, held that priests and nuns who work as teachers for educational institutions are liable to pay TDS (Tax Deduction at Source). This judgment was made scratching about 50 writ appeals.

The history of this issue can be dated back to 1944 when it was observed that all the priests and nuns are exempted from paying the TDS even if they work for government-aided institutions keeping in mind their poverty but this was changed in 2014. In 2014, it was ordered that the priests and nuns have to pay the TDS if they wish to work outside their religious congregations after which several appeals were filed in the Honorable High Court of Kerala where these appeals were dismissed by the Single Judge Bench and the appellants further went to the Honorable High Court of Kerala Division Judge Bench. The judges of the division bench were Justice SV Bhatti and Justice Bechu Kurian Thomas.

The Court held that the appeals only about the employees of the government and whose TDS is deducted are maintainable and not the ones where nuns and priests worked in their congregations and hence maximum pleas were scratched. It violates section 129 of the Income Tax Act if the TDS is not deducted from the employees of the educational institution irrespective of whether the salary is donated or utilized for personal use. The concept of civil death is not known and irrelevant to the Income Tax Act when argued that the priests and nuns live a life of poverty and in the end lead to civil death. The right to practice and profess any religion guaranteed under Article 25 of the Indian Constitution does not provide any immunity from taxation as it is subject to a legitimate law of the land.

Thus, the court once again proved that although the Fundamental Rights are guaranteed to everyone they are subject to reasonable restrictions by the state because of the public. Hence, the TDS system is non-violative of Article 25 of the Indian Constitution.

-Report by PREYANSI ANAND DESAI

During the proceeding of a matter, Kerala High Court on Monday while interpreting Section 375 of IPC stated as to when the body of the Victim is manipulated to simulate a sensation similar to penetration of an orifice, then such act also leads to the offense of rape.

The above Judgment was made while deciding a matter wherein a minor child stated that his neighbor had sexually assaulted her on various occasions for six months. The offense not only attracts section 375 of IPC but also an offense under the protection of Children from Sexual Offences Act, 2012.

The offense was registered and the Trial Court after the evaluation of the entire matter has found the accused guilty and was sentenced. So the accused moved to the High Court stating that the victim has not proofed her age and also as per the definition of rape stated in IPC states rape happens when any accused penetrate his penis into the Vagina, mouth, Urethra, or anus of women but in the present case the accused is been accused of inserting the penis between the thighs of the victim does not amounts to rape.

After the appeal in the Kerala High Court, the difficulty faced by the High Court was in solving the problem that has been arrived before the bench whether the act to accused will be considered as rape or not. The further solved this problem and interpreted the definition of rape by stating the accused had committed the offense of rape as he had done the penetrative sexual act between the thighs of the victim to obtain sexual gratification which amounts to rape.

-Report by RIDDHI DUBEY

-Report by RIDDHI DUBEY

Kerala High Court on Monday granted an order to terminate the pregnancy of a mentally disabled woman from Bihar as it believed that she was not in the state of mind to take such a big decision.

FACTS

In the present case, a woman was found roaming the street and was not in good mental condition. So she was first taken to a Police Station nearby then police took her to Mental Health Centre. At the Mental Health Centre, it was found that the woman is pregnant and is also mentally unstable. Police were not able to find her for her family or relative and it was also found that she was raped. So the Health Centre filed a petition asking the court to grant permission to terminate her pregnancy as she is not in the proper state of mind to conceive a child. A report from the medical board stated that the woman is suffering from mental retardation with psychosis due to which she is consuming multiple antipsychotic medications. As a result of the medication, there is a high risk for the woman and child.

JUDGEMENT

Kerala High Court took up the matter on 16th June and ordered the Permanent Medical Board to submit a report on whether the termination of pregnancy won’t put the life of the woman in danger and to determine whether she is capable of communicating or giving her consent. The report stated that terminating her pregnancy will not be endangering for her and her not in a position to give her consent in the matter. On Monday after going through the report High Court bench Justice P. B Suresh Kumar applied the doctrine of ‘parens patriae’ and permitted terminating her pregnancy stating that the decision is taken in her best interest as the continuation of the pregnancy may affect her mental health even more.

KEY HIGHLIGHTS

• The Judgment was given against Section 3(4)(a) of the Medical Termination of Pregnancy Act, 1971 but the relative family members of the relatives are Victims was not able to trace and the woman was not in the condition of giving her consent so Justice P. B Suresh Kumar passed an order by applying the doctrine of ‘parens patriae’ as it was its best interest of the Victim.

What is the Doctrine of “parens patriae”?

Parens Patriae in Latin means “parent of the nation”. In law, it refers to the power given to the state to step in, in case of an abusive or negligent parent, legal guardian, or informal caretaker, and to act as the parent of any child or individual who requires protection.

As per which Act the petition for termination of pregnancy filed by the court?

According to Section 3(4)(a) of the Medical Termination of Pregnancy Act, 1971 the petition for the termination of pregnancy was filed.

What does Section 3(4)(a) of the Medical Termination of Pregnancy Act, 1971 state?

As per Section 3(4)(a) of the Medical Termination of Pregnancy Act, 1971 no pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is mentally ill, shall be terminated except with the consent in writing of her guardian.

The Kerala High Court heard public interest litigation on Thursday, urging the Centre to reconsider the status of Muslims and Christians as minorities in the state. After hearing the petitioner’s arguments, a Division Bench of Chief Justice S. Manikumar and Justice Shaji P Chaly reserved orders in the case.

Citizens Association for Secularism (CADETS), the petitioner, is a non-profit organization dedicated to end discrimination and promote equality among citizens. The petitioner was represented by attorneys C Rajendran and K Vijayan. CADETS (Democracy, Equality, Tranquility, and Secularism) is a non-profit organization that works to eliminate discrimination and promote equality among citizens. The petition sought that the Centre examines the status of Muslim and Christian minorities in Kerala to determine if they should be kept on the list of minority communities in the state, and so re-determine the list of minorities. The petitioner organization also requested that the National Commission for Minorities issue a directive to the Centre to assess the progress of these communities’ development in the state.

The petition’s main point was that Muslims and Christians no longer had any fear of the majority population dominating them or depriving them of their socioeconomic, educational, and political rights. It was said that, while being in fewer numbers than Hindus, they had evolved to a higher degree than Hindus in all aspects of life in the State over time.

To support their argument, CADETS cited the landmark decisions of Bal Patil & Anr v. Union of India & Ors [AIR 2005 SC 3172] and TMA Pai Foundation v. State of Karnataka [2002 (8) SCC 481] that a community should be protected only if there is a fear that the majority community will dominate them and deprive them of their rights and interests in socioeconomic and educational fields.

-Report by YASHVARDHAN SHARMA

Lakshadweep Administration had issued a notice to two residents of Kavarratti Island stating that their dwelling houses are to be demolished as it is not a legal construction as its constructed with diversion certificate as per Laccadive Minicoy and Amini Islands Land Revenue and Tenancy Regulation. Being aggrieved by such order of administrative authority the two residents have filed a Petition in Kerala High Court It was submitted in the Petition that such act of authorities is not in due process of law.

The Respondent stated that the dwelling houses are within 20km from the High Tide line which is a non-development zone. Replying to which petitioner stated that the area sometimes differs during high tide so no straitjacket formula could hence be applied to identify the distance of building from high tide.

During the hearing, the petitioner states that the “diversion certificate” is only applicable to the lands where the government has an absolute title and the petitioners dwelling houses were constructed by their ancestors in 1960 and 1963 and not an allotted land so asking for a diversion certificate is beside the point. Petitioner also points out a similar act done by the administration in which such notice was issued to the fisherman and demolished that area and they trying to do the same with the petitioners as well.

Currently, the high court bench comprising of Justice Raja Vijayaraghavan has put a stay on the notice issued by the Lakshadweep Administration to demolish the Dwelling of Traditional Coastal Communities.

-Report by RIDDHI DUBEY

The CPI(M) chief and previous Tripunithara MLA M Swaraj approached Kerala High Court on Tuesday looking for the assertion that the election of congress candidate K Babu from the Tripunithara constituency null and void.

According to the current elections withinside the State hung on 06.04.2021, the respondent turned into elected as an MLA from the stated Constituency. The counting of votes on 02.05.2021 found out that the respondent had secured 992 votes greater than the petitioner. The petition entreated that the election of the respondent turned into vitiated with the aid of using corrupt practices below numerous provisions of the Representation of People Act.

The petition states that about 70% of the citizens in Tripunithara are believers of Lord Sabarimala Ayyappa. Considering this, the respondent appealed to numerous citizens to vote for him withinside the call of Lord Sabarimala Ayyappa, failure to result in the displeasure of Lord Ayyappa. Another allegation withinside the election petition is that in the respondent’s election campaign, claimed that the petitioner turned into now no longer authentic to his Hindu faith and stood in opposition to the ideals concerning Lord Sabarimala Ayyappa. This turned into purportedly introduced in his speech via a mic connected to a massive soundbar on a vehicle. Another aspect of the petitioner’s argument is that devotees of Lord Sabarimala Ayyappa do now no longer represent a separate nonsecular denomination. They are completely Hindus sharing not unusual place nonsecular tenets with that of Hindu faith. Such systematic appeals are imagined to have affected the election consequences materially, placing the election petitioner in a prejudiced position.

The petitioner approached the High Court praying for an order placing apart the stated election at the floor that he indulged in corrupt practices with the aid of using interfering with loose exercising of electoral rights of the devotees of Lord Sabarimala Ayyappa. It turned into additionally prayed that the petitioner is declared because the back candidate withinside the aforementioned elections to the Kerala Legislative Assembly.

-Report by Manaswa Sharma

Homeopathic practitioner Jayaprasad filed a petition for a writ of mandamus. He contended that the Kerala State Health Department was intimidated to take action against him under the Disaster Management Act if he treats Covid 19 patients, which was a violation of his right under Article 19(1)(g).

The Kerala High Court ruled that qualified homeopathic doctors can prescribe immunity booster medicines for Covid-19 patients as well as preventive medicines. Moreover, it was held that there is no prohibition imposed by the Government of India on Homoeopathy for the treatment of patients in its AYUSH recommendations. AYUSH is the Ministry of Ayurveda, Yoga, Naturopathy, Unani, Siddha, Sowa-Rigpa, and Homoeopathy is purposed with developing education, research, and propagation of indigenous alternative medicine systems in India.

The State Medical Protocol issued by the Centre invoking the provisions of the Disaster Management Act directing that Covid-19 affected persons should only be treated by the Government and those hospitals authorized by the Government. The petition contended that nothing was prohibiting qualified medical AYUSH practitioners to prescribe an immunity booster mixture or tablets suggested by the Ministry of AYUSH, which also includes homeopathy practitioners.

This came after the petitioner highlighted that the Apex Court has upheld the right of Homoeopathic Practitioners to treat Covid-19 patients. Justice N Nagaresh ruled in favor of allopathic medical practitioners deciding that a qualified homeopathic physician can dispense preventive and prophylactic homeopathic medicines for Covid-19. It was also held that they are permitted to prescribe add-on medicines authorized by the Guidelines with the approval of the concerned authorities and the consent of the patient/guardian. The advertisements of homeopathic treatment for Covid are prohibited.

-Report by Muskan Chanda

Kerala High court on 3rd June 2021, held that false allegation of impotency or erectile dysfunction against a spouse is considered to be “mental cruelty”. This judgment was made in the divorce case of a doctor- couple.
As per the Hindu marriage act, cruelty means that the other party has, after the solemnization of the marriage, treated the petitioner with cruelty. It may be physical or mental. It may be words or gestures or even by mere silence. That’s the reason here false allegation is considered as “mental cruelty”. Whereas cruelty is also a ground for divorce.

The appeal has filed by the husband against the order of the family court. The respondent accused that her husband was impotent and is not able to perform sexually, which was contradicted by her statements and lack of evidence. Despite it, the husband was willing to undergo a medical test.
The advocate for the applicant relied on K.Srinivas Rao v. D.A. Deepa in which it was held that defamatory allegation against the spouse or his or her relatives in the pleadings amounts to causing mental cruelty to the other spouse. And in Gangadharanv, T.K. Thankam, the court held that false, scandalous, malicious, baseless, and unproved allegation made by one spouse, whether by letter or written statement or by any other mode, amounts to cruelty.

Therefore, the Kerala high court bench of justice Muhamed Mustaque and Kauser Edappagath has held that a false allegation of impotency or erectile dysfunction amounts to mental cruelty.

–Report by Riddhi Dubey