Latest & Important Kerala High Court Judgments 2018

Maximus Fernandez @ Maxwell Fernadez v. Olga Fernandez

Civil P.C. 1908 - S.151 - Every procedure is to be understood as permissible till it is shown to be prohibited by law. Every court must be deemed to possess all such powers as may be necessary to do the right and to undo the wrong. Section 151 of the Code does not give the court any new power. It merely declares that the court has inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. Inherent power can be exercised to do real and substantial justice. (Para.11)


Civil P.C. 1908 - S.151 - Family Courts Act, 1984 - S. 18 - Family Court has power to invoke Section 151 of the Code, when it acts as a civil court, to do justice between the parties and stay the proceedings before it on finding that a party has deliberately flouted its order to pay interim maintenance to the spouse. (Para.11)

Family Courts Act, 1984 - S. 18( 1) - Civil P.C. 1908 - S. 36 – Execution of Decrees - An order of the Family Court, acting as a civil court, granting interim maintenance to the wife is executable in accordance with the procedure prescribed under the Code for execution of decrees. (Para.13)

Family Courts Act, 1984 - S. 18 - Civil P.C. 1908 - S.151 - Execution of the order granting interim maintenance - When a specific procedure is prescribed under the Code for execution of an order, such procedure has to be followed by the court - Since the lower court has not adopted such procedure prescribed under the Code, it is not legally sustainable. (Para.14)

Family Courts Act, 1984 - S. 18 - Civil P.C. 1908 - S.151 - Staying the proceedings in a case instituted by the defaulting party would only achieve the object. Staying the proceedings, in the case instituted by the party to whom the amount is due, would be counter productive. The order passed by the court striking off the defence of the petitioner would subserve the ends of justice and achieve the object. (Para.14)

View Judgment : http://bit.ly/OPFC276of2018
Case Number : O.P. (FC) No. 276 of 2018 24-09-2018
Bench : C.K. Abdul Rehim & R. Narayana Pisharadi, JJ.
Citations : 2018 (4) KLT 709 : 2018 (4) KHC 810

Sony Markose v. Ouseph Cherian

Civil P.C. 1908- O. 45 Rr. 2, 3, 7, 8 & 15 - Appeals to the Supreme Court - Procedure to enforce orders of the Supreme Court - Preferring a civil appeal to the Supreme Court cannot be regarded as a matter of right for any party - Decree passed in a civil appeal admitted to the Supreme Court otherwise than the procedure provided in Order XLV of the Code cannot be executed by invoking Order XLV Rule 15.

View Judgment : http://bit.ly/EP1of2018
Case Number : E.P. No. 1 of 2018 10-10-2018
Bench : A. Hariprasad, J.
Citations : 2018 (4) KLT 745

Ramesan v. Asokan

Contract Act, 1872 - Tender - Non-disclosure of information, that would confer on one of the bidders an unfair advantage even before the commencement of the tender process, cannot be seen as a fair procedure that would withstand the scrutiny of Article 14 of the Constitution of India - terms of the NIT to be strictly construed by referring only to the express conditions therein.

Case Number : W.A. No.598 of 2018 16-10-2018
Bench: Hrishikesh Roy CJ & A.K. Jayasankaran Nambiar, J.
Citation : 2018 (4) KLT 730

Subho Adhikari v. State of Kerala

Criminal P.C. 1973 - Ss. 437 & 482 – Magistrate Court’s direction that the sureties shall be native and they shall provide a shelter to the accused within the jurisdiction of the Court till the completion of the trial is without jurisdiction and it is illegal. It is liable to be set aside.

View Order : http://bit.ly/CrlMC6970of2018
Case Number : Crl. M.C. No. 6970 of 2018 22-10-2018
Bench : K. Abraham Mathew, J.
Citations : 2018 (4) KLT 778 

Shanif v. State of Kerala

Prevention of Damages to Public Property Act, 1984 - S. 3 (2) - Penal Code, 1860 - Ss. 143, 147, 148 & 427 r/w 149 - Bail - College campus was turned into a war zone by a group of students - total loss sustained as Rs.2,55,000 - the applicants are entitled to conditional bail only upon deposit of the proportionate quantified loss caused due to such violence.

View Judgment : http://bit.ly/BA7021of2018
Case Number : B.A. No. 7021 of 2018 31-10-2018
Bench : Raja Vijayaraghavan V., J.
Citations : 2018 (4) KLT 766 : 2018 (5) KHC 272

Tomy Joseph v. Smitha Tomy

Special Marriage Act, 1954 - S. 28 - Hindu Marriage Act, 1955 - S. 13B - Divorce Act, 1869 - S. 10A - The beneficiaries under the provisions of different statutes are persons who want divorce by mutual consent and who file joint petition for that relief - There can be no discrimination among them on the ground of religion - Divorce by mutual consent is a secular concept.

View Judgment : http://bit.ly/OPFC577of2018
Case Number : O.P. (FC) No. 577 of 2018 30-10-2018
Bench : C.K. Abdul Rehim & R. Narayana Pisharadi, JJ.
Citations : 2018 (4) KLT 770 : 2018 (5) KHC 267

Tiji Daniel v. Roy Panamkoodan

Family Courts Act, 1984 - Section 19 - Divorce Act, 1869 - Section 10A - A decree of dissolution of marriage passed on mutual consent cannot be “a decree or order passed with the consent of the parties”. A decree dissolving the marriage under Section 10A of the Act is made based on the satisfaction of the court regarding existence of certain basic ingredients and statutory requirements. Such a decree cannot be termed as a decree passed merely on consent of the parties. If an appeal is filed questioning the very satisfaction of the Family Court, the bar under Section 19(2) of the Family Courts Act would not apply, and resultantly the appeal would be maintainable.

View Judgment : http://bit.ly/MatA338of2018
Case Number : Mat.A. No. 338 of 2018 17-09-2018
Bench : C.K. Abdul Rehim & R. Narayana Pisharadi, JJ.
Citations : 2018 (4) KLT 761 : 2018 (5) KHC 288

Meghna Gopal v. Praveen Chandran

Family Courts Act, 1984 - S.19 - Civil P.C. 1908 - O.IX R. 13 - Right of appeal provided under a statute is not taken away unless it is in derogation or contrary to any other statutory provision. There is no such provision which takes away the right of appeal provided to a party under S.19 of the Family Courts Act, 1984. Therefore, the defendant who has suffered an ex parte decree passed by the Family Court has right of appeal against such decree though he has not exercised his remedy under Order IX, R.13 of the Code. A defendant against whom an ex parte decree is passed has two options: The first is to file an appeal. The second is to file an application under Order IX, R.13 of the Code. The defendant can take recourse to both the proceedings simultaneously. The right of appeal is also not taken away by filing an application under Order IX, R.13 of the Code. However, in view of the Explanation provided to Order IX, R.13 of the Code, if the appeal is disposed of on any ground other than withdrawal of it by the appellant, then no application under Order IX, R.13 of the Code shall lie. The reason is that the ex parte decree merges with the decree of the appellate court. But, the Explanation provided to Order IX, R.13 of the Code suggests that dismissal of the application filed for setting aside the ex parte decree does not bar an appeal from the original decree. When an application under Order IX, R.13 is dismissed, the remedy of the defendant is to file an appeal against such order. However, once such an appeal is dismissed, the same contention cannot be raised in a first appeal filed against the decree. (Paras.6 & 7)

View Judgment : http://bit.ly/MatA469of2018
Case Number : Mat.A. No. 469 of 2018 27-09-2018
Bench : C.K. Abdul Rehim & R. Narayana Pisharadi, JJ.
Citations : 2018 (4) KLT 741 : 2018 (4) KHC 875

Shiby M. Chacko v. Litha Skaria

Code of Civil Procedure, 1908 - Order XXIII Rule 1(3) - the plaintiff can seek permission to withdraw from the suit with liberty to file a fresh suit in respect of the subject matter of such suit, on two grounds: (1) The suit must fail by reason of some formal defect, or (2) There are sufficient grounds for allowing him to institute a fresh suit.

The principle underlying Rule 1 of Order XXIII of the Code is that when a plaintiff once institutes a suit in a court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject matter again after abandoning the earlier suit or by withdrawing it without the permission of the court to file fresh suit. In order to prevent a litigant from abusing the process of the court by instituting suit again and again on the same cause of action without any good reason, the Code insists that he should obtain the permission of the court to institute a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of Rule 1 of Order XXIII of the Code. The principle underlying the above rule is founded on public policy.

Divorce Act, 1869 - Section 10(x) - Permission to withdraw the petition for divorce - Lack of pleadings in the petition for divorce regarding the acts of cruelty committed by the wife cannot be considered as a sufficient ground as contemplated under Clause (b) of sub-rule (3) of Rule 1 of Order XXIII of the Code. A party cannot be permitted to protract the litigation by withdrawing the suit with permission to institute a fresh suit where the ingredients of clause (a) or (b) of sub-rule (3) of Rule 1 of Order XXIII of the Code are not made out. This provision is not intended to enable a plaintiff to withdraw one suit and institute any suit as he likes.

Facts of the Case 

In the instant case, the petitioner has no case that the petition for divorce filed by him would fail on account of some formal defect. He seeks withdrawal of the petition for divorce on the ground that it does not contain material averments with regard to the acts of cruelty committed by the wife. The question arises whether lack of pleadings in the petition for divorce can be considered as sufficient ground for allowing the petitioner to withdraw it with liberty to institute a fresh petition for divorce. In the instant case, the petitioner has got a plea that he had instructed his lawyer regarding the acts of cruelty committed by the wife but on account of the negligence of the lawyer, averments in that regard were not incorporated in the petition for divorce. This plea lacks credibility. The petitioner has no case that he is illiterate. The petition for divorce is drafted in Malayalam. It is signed by the petitioner. In such circumstances, it cannot be found that it was a bona fide omission to incorporate necessary averments in the petition for divorce.

View Judgment : http://bit.ly/OPFC569of2018
Case Number : O.P. (FC) No. 569 of 2018 29-10-2018
Bench : C.K. Abdul Rehim & R. Narayana Pisharadi, JJ.
Citations : 2018 (4) KLT 725 : 2018 (5) KHC 200

Ramakrishna Babu v. Medical Council of India

Medical Council Act, 1956 - The perceived misunderstanding regarding the qualification of the doctor may not by itself, be a justification for the State Medical Council to insist on the doctors, who have obtained their degree from foreign institution, to make changes in their name boards or in their letter heads since it is not the case of the State Medical Council that the doctors had not obtained the displayed degrees or they attempted to mislead the public.

View Judgment : http://bit.ly/WA2055of2018
Case Number : W.A. No. 2055 of 2018 17-10-2018
Bench : Hrishikesh Roy CJ & A.K. Jayasankaran Nambiar, J.
Citations : 2018 (4) KLT 775

Sebastian v. District Collector, Alappuzha

Swatantrata Sainik Samman Pension Scheme 1980 – Merely because a person had participated in the Police action as a member Police constabulary, will not entitle him for the grant of the Central Swatantrata Sainik Samman Pension under the Central scheme.

Held: In the instant case, the petitioner has no case that he has suffered any of the abovesaid sufferings as understood in the scheme, by way of jail sufferings, remaining underground, internment or externment, confiscation, incapacitation due to firing or lathi charge, loss of job, etc. The only claim of the petitioner is that he was part of the Police force deputed by the provincial Government of Madras to participate in the action in Hyderabad State. The petitioner has so participated only as part of his duty in the Police service, for which he is entitled for his service benefits. But that cannot grant him the status of a freedom fighter under the Central SSS Pension Scheme, as admittedly he has not suffered any of the sufferings of a person, who has voluntarily participated in the freedom movement as contemplated in that scheme. Hence such a person is not eligible and entitled for the benefits of freedom fighter’s pension under the Central Scheme.

View Judgment : http://bit.ly/WPC27590of2010
Case Number : W.P. (C). No. 27590 of 2010 17-09-2018
Bench : Alexander Thomas, J.
Citations : 2018 (4) KLT 779

Vijesh v. State of Kerala

Information Technology Act, 2000 - S. 67A – Penal Code 1860 - Ss. 376, 376 (2), 376 (2)(n) & 354C - In case of digital evidence stored in a computer, mobile phone, USB drive or digital camera, the Investigating Officer should have ensured that there is a clear link between the hardware and the digital evidence copied from that hardware.

Having gone through the case diary, I have no doubt in my mind that the manner in which the investigating officer has handled the mobile phone of the son of the de facto complainant which was a valuable piece of evidence has to be deprecated in the strongest possible terms. All that he had done was to transfer the data to a compact disc after taking a screenshot of some of the pictures. He has not even retrieved the videos which were allegedly recorded by the applicant and which were forwarded to the recipient. The investigating officer ought to have borne in mind that it was essential to display objectivity in a court of law when the case ultimately comes up for trial. The investigating officer was bound to demonstrate as to how the evidence was retrieved showing each process through which he had accomplished the said objective. He should have maintained a record to show the chain of custody which would address issues such as the person who collected the evidence, the nature and mode as to how the evidence was collected, the name of the person who took possession of the evidence, the manner in which the evidence was stored, the protection offered to the evidence whilst in storage and the names of persons who removed the evidence from storage including the reasons. (Para.7)

In a case in which a mobile phone is used for the commission of the crime, the first and foremost thing the officer should have done was to secure the phone to prevent the destruction/manipulation of data. 

He should have first recorded the status of the device after taking a photograph and record any on-screen information. If the device was switched on, it should have been switched off and the batteries should have been removed. Turning off the phone would preserve the various information, metadata and call logs and it would also prevent any attempt to wipe off the contents of the phone remotely. The officer also was bound to seize all cables, chargers, packaging, manuals etc. if possible to assist the enquiry and minimise the delays in any examination by the digital evidence specialist. The password/pin of the device, if any, also had to be obtained from the owner of the phone. The phone had to be packed and sealed in antistatic packaging such as plastic bag, envelope or cardboard box and the secured device along with the collected data had to be sent to the digital evidence specialist. Only the said specialist can obtain and copy the digital evidence and also provide an analysis of the evidence. (Para.9)

It is high-time for the State Police to bring out a good practise guide for digital evidence, if they intend to tackle cyber crime head on. 

The cyber criminals are way ahead of the law enforcement officers and urgent measures are to be taken to train officers to successfully prosecute the offenders. Flaws committed by the officers, such as in the instant case, may prove fatal to the prosecution. Officers, who are engaged in investigation of cyber crimes, are required to be trained in best practices to tackle the criminal misuse of current and emerging technologies. (Para.9)

View Order : http://bit.ly/BA7022of2018
Case Number : B.A. No.7022 of 2018 02-11-2018
Bench : Raja Vijayaraghavan, J.
Citations : 2018 (4) KLT 826 : 2018 (5) KHC 328