Jileesh v. State of Kerala
Penal Code, 1860 - Sections 302, 364, 328, 394 and 201 - Murder - Recovery of the Ornaments - The only evidence that has been projected by the prosecution against the accused is the recovery of the ornaments which purportedly belongs to the deceased. The recovery of the articles belonging to the deceased may in some instances be treated as proof of committing the crime, but, in cases where there is doubt as to whether the ornaments actually belonged to the deceased, it will be difficult to take such a view as well.
Case Number : Crl.A. No. 134 of 2014 01-04-2019
Bench : A.M. Shaffique & Shircy V., JJ.
For Appellant : By Adv. P. Vijaya Bhanu (Sr.), M. Revikrishnan, Vipin Narayan
For Respondent : Spl. P.P. S. Ambika Devi for Attrocities against Women and Children
Dhanalakshmi v. Sreedharan T.K.
Family Law - Return of Gold Ornaments - Husband not raised any dispute regarding the quantity of gold ornaments - without disputing the actual quantity, he pleads ignorance of the quantity of the gold ornaments - gone to the extent of saying that he does not even know whether those were imitation or gold. It is only a vague denial and not very specific.Family Law - Return of Gold Ornaments - When a marriage is solemnised between the parties, it is quite usual in the community to know the quantum of gold ornaments the bride has when she comes to the matrimonial home. Therefore, pleading ignorance about the quantity of gold ornaments, under normal circumstances, amounts to an admission.
In this case, in the absence of any specific denial, we have to proceed on the basis that the petitioner had 35 sovereigns of gold ornaments at the time of marriage. Exts.A1 and A2 though not believed by the court, taking into account the pleadings of the parties if the court is able to arrive at a conclusion regarding the quantity of the gold ornaments, the same would suffice to hold that she was having 35 sovereigns of gold ornaments, which was spoken to by her in her testimony as PW1. That apart, PW2 to PW6 had also spoken to the effect that at the time of marriage, the petitioner was having 35 sovereigns of gold ornaments.
Family Law - Return of Gold Ornaments - It is quite natural that when wife comes to a matrimonial home, other than the usual wearing apparels or ornaments, all other ornaments are kept under the custody of the husband or his parents.
In this case, there is a specific pleading that the gold ornaments were in the custody of the husband. He pleads absolute ignorance. According to him, whatever gold ornaments she had, was in her custody and it was taken by her when she left the matrimonial home. But it could be seen that the petitioner had to leave the matrimonial home under severe distress on account of matrimonial cruelty and demand for more dowry. Under such circumstances, the version of PW1, the petitioner, is more believable. The respondent had not adduced any other evidence other than entering the box. Even in his evidence, he did not clearly indicate as to whether he was entrusted with the gold ornaments or not. Under such circumstances, we are of the view that the Family Court committed serious error in rejecting the claim of the petitioner for return of the gold ornaments.
Case Number : Mat.A. No. 46 of 2011 15-03-2019
Bench : A.M. Shaffique & Ashok Menon JJ.
For Appellant : By Advs. R. Sudhish, M. Manju, K.R. Ranjith
Divya Susan Thomas @ Divya Susan Manoj v. Manoj Varghese
Guardians and Wards Act, 1890 - Section 17 - A case involving dispute on rival claims for custody of minor wards cannot be decided like a case involving rival claims as to property or assets of the spouses. The welfare, growth and development of the children are the predominant factors which the Family Court has to be cognizant of while choosing the fit person among the contesting guardians. No hard and fast principle could be laid in this respect for identifying the circumstances which vouch for the interest and welfare of the child. All that depends on the individual facts and circumstances of each case.Family Law - Immoral Character - Allegations charging immorality are not matters for mere speculation, but are liable to be proved by convincing evidence.
Except appellant's testimony alleging immoral character on the respondent, there is nothing on record to corroborate her. PW2, a close relative of her has no direct knowledge about the truth of the allegations made by the appellant. PW1, the appellant, was cross- examined by the respondent denying all these allegations even though he did not choose to enter the box to deny the allegations against him. On re-appreciating the oral evidence on record, we are not convinced that the appellant could establish any of her allegations imputing immoral character on the respondent. She was not able to specify the name or identity of any woman with whom he had the alleged adulterous relationship. Like wise, except a general and bald allegation that he used to take drugs and come home late after being drunk, no specific incident in which he behaved immorally or tortured the wife and children, could be testified by her.
Guardians and Wards Act, 1890 - Section 17 - The mother's love, affection and company with the girl children during their growing age especially when they near the age of puberty cannot however, be emphasised as a sole factor in deciding their over all welfare.
Case Number : Mat.A. No. 1161 of 2017 15-03-2019
Bench : C.K. Abdul Rehim and T.V. Anilkumar, JJ.
For Appellant : By Adv. S. Karthika
For Respondent : By Advs. K. Gopalakrishna Kurup (Sr.), Jaison Joseph, N. Raghuraj
K.P. Vijaya Mohan v. N. Jaya Kumar
The Indian Penal Code, 1860 - Section 120B, 406 and 420 - The Code of Criminal Procedure, 1973 - Section 93 - When search-warrant may be issued - When the law requires the sanction of Magistrate before the issue of a search warrant, it means that the Magistrate should apply its mind to the facts. This fact should be discernible from the order passed. It can be argued that the provision does not contemplate recording of detailed reasons prior to the issuance of an order in view of the urgency of the situation. However, in a case of instant nature, wherein allegations are levelled against the officer bearers of a club for wrongly inducting a member against the provisions of the bye-laws, the learned Magistrate ought to have applied her mind and should have formed an opinion upon the materials placed before her. The "reasons to believe" which weighed in the mind of the Court to take such a drastic step should have been reflected in the order.The Code of Criminal Procedure, 1973 - Section 93 - When search-warrant may be issued - As is evident from the wording of the section, it arms the jurisdictional Magistrate with very wide powers. Issuance of a search warrant is a very drastic step with serious consequences and it cannot be gainsaid that such drastic powers should not be exercised without fully appreciating the gravity of the step. It is for that reason, the words "reason to believe" is incorporated in the said section. This function being judicial, it necessarily follows that the Magistrate has to apply his mind judicially.
It is evident from the provision that clause (a) of sub- Section (1) requires, as a condition precedent, to the issue of a search warrant, that the court must have reason to believe that the person, against whom the search warrant is issued, is likely not to produce the document or thing in his possession as required by a summons or order under Section 91 or a requisition under Section 92(1) of the Code, served on him, or that he is not likely to produce it, should such summons or order or requisition be served. No such situation had arisen in the instant case. It does not appear from the order that the petitioners were called upon to produce the document and they had refused. Section 93(1)(b) comprehends a situation where a search warrant may be issued to procure a document or thing not known to the court to be in the possession of any person. In other words, a general search warrant may be issued to procure the document or thing and it can be recovered from any person who may be ultimately found in possession of it if it was not known to the court that the person from whose possession it was found, was in possession of it. The said provision has no application as it is evident from the application itself that the document was in the possession of the relevant office bearer of the Tennis Club. Under clause (c), a search warrant can be issued where the court considers that the purposes of any enquiry, trial or other proceeding under this Code will be served by a general search or inspection. A Magistrate must, under this provision, apply her mind to the question whether the purposes of any enquiry, trial or other proceeding under the Code will be served by a general search, and, unless there are materials before her, connecting the person against whom the warrant is applied for with the offences alleged, upon which it can come to an independent decision on the point, it has no power to issue a search warrant. I have no doubt in my mind that none of the situations contemplated in clauses (a) to (c) of Section 93(1) had arisen in the instant case.
Bench : Raja Vijayaraghavan V.
Case Number : Crl. M.C. No. 8672 of 2018 15-03-2019
For Petitioners : By Advs. Pirappancode V.S. Sudhir, A. Megha, Jelson J. Edampadam
For Respondents : R2 By Adv. Suman Chakravarthy, Senior Government Pleader R2 By K. Sheeba, Public Prosecutor
V.K. Rajeev v. State of Kerala
Renewal of Gun Licence - Declined to renew the Pistol and Gun licences - Criminal Cases Pending - Closure of the Rowdy History Sheet - Held, the petitioner has been exonerated or acquitted from criminal cases pending against him - In view of the changed circumstances it is only just and proper that the petitioner's application for renewal of gun/pistol licence be reconsidered afresh.
Case Number : W.P. (C) No. 19095 of 2012 15-03-2019
Bench : N. Nagaresh, J.
For Petitioners : By Advs. P.B. Sahasranaman, K. Jagadeesh, T.S. Harikumar
For Respondents : By Government Pleader Sri. Justin Mathew
Filing complaint on the premise that there is matrimonial cruelty demanding dowry by itself may not be a reason to arrive at a conclusion that the wife had committed cruelty. That apart, the petitioner had not adduced any evidence to prove that the wife behaved in a cruel manner. Therefore, the Family Court was justified in denying divorce on the ground of cruelty.
Divorce - Ground of Desertion - there is no specific reason for the wife to remain away from the company of the Husband. The wife was unable to prove that she was living away from the matrimonial home on account of a reasonable cause. When a lawyer's notice was issued, despite her offer in evidence that she will come and reside with him, she did not send any reply. This itself would indicate that all alone she had no specific reason to remain away from the matrimonial home. She had no genuine interest to live with the petitioner. Therefore, this is a clear case in which the respondent had deserted the petitioner. That apart, after having separated in 1999, their matrimonial life was irretrievably broken and there is no chance of reunion. Under such circumstances, the divorce can be granted on the ground of desertion.
Facts of the Case
The parties got married as per Hindu religious rites and ceremonies. According to the petitioner, she left the matrimonial home and did not come back. Later, she filed a complaint under Section 498-A IPC against the petitioner as well as against his parents and brother. The said case was acquitted. The learned Magistrate had clearly found that there is no matrimonial cruelty demanding any dowry. The very filing of the case, according to him, amounts to cruelty.
Bench : A.M. Shaffique & Ashok Menon
For Appellant : By Advs. Santheep Ankarath, V.C. Madhavankutty
For Respondent : By Advs. Mansoor B.H., P.P. Thajudeen
Case Number : Crl. M.C. No. 464 of 2019 15-03-2019
Bench : Raja Vijayaraghavan V.
For Petitioners : By Adv. Sunil V. Mohammed
For Respondents : R2 By Advs. Abdul Jaleel A, M. A. Sulfia R1 By Ajith Murali, Public Prosecutor
Vijayan v. Radhamani
The Indian Penal Code, 1860 - Sections 498-A and 406 IPC read with Section 34 - The very filing of the case on the premise that there is matrimonial cruelty demanding dowry by itself may not be a reason to arrive at a conclusion that the wife had committed cruelty.Filing complaint on the premise that there is matrimonial cruelty demanding dowry by itself may not be a reason to arrive at a conclusion that the wife had committed cruelty. That apart, the petitioner had not adduced any evidence to prove that the wife behaved in a cruel manner. Therefore, the Family Court was justified in denying divorce on the ground of cruelty.
Divorce - Ground of Desertion - there is no specific reason for the wife to remain away from the company of the Husband. The wife was unable to prove that she was living away from the matrimonial home on account of a reasonable cause. When a lawyer's notice was issued, despite her offer in evidence that she will come and reside with him, she did not send any reply. This itself would indicate that all alone she had no specific reason to remain away from the matrimonial home. She had no genuine interest to live with the petitioner. Therefore, this is a clear case in which the respondent had deserted the petitioner. That apart, after having separated in 1999, their matrimonial life was irretrievably broken and there is no chance of reunion. Under such circumstances, the divorce can be granted on the ground of desertion.
Facts of the Case
The parties got married as per Hindu religious rites and ceremonies. According to the petitioner, she left the matrimonial home and did not come back. Later, she filed a complaint under Section 498-A IPC against the petitioner as well as against his parents and brother. The said case was acquitted. The learned Magistrate had clearly found that there is no matrimonial cruelty demanding any dowry. The very filing of the case, according to him, amounts to cruelty.
Case Number : Mat.A. No. 158 of 2010 15-03-2019
For Appellant : By Advs. Santheep Ankarath, V.C. Madhavankutty
For Respondent : By Advs. Mansoor B.H., P.P. Thajudeen
Yahya T.S. v. State of Kerala
The Indian Penal Code, 1860 - Sections 353 read with Section 34 - the accused entered the office of the Wakf Board and deterred the officers from discharging their official duty - victim and the offenders have arrived at a compromise - Held, the offence alleged is entirely personal in nature and does not affect public peace or tranquility. The injuries allegedly inflicted by the petitioners cannot be said to be grave and serious having ingredients of extreme mental depravity. It is also felt that quashing of proceedings on account of compromise would bring about peace. In a case such as the instant one, even if the prosecution is allowed to continue, it would not serve any purpose as the possibility of conviction is remote and bleak. It can only result in putting the de facto complainant and the accused to unwanted oppression and prejudice. Settlement will augur well for the interest of the community and will enable the parties to live in peace and harmony. In the result, this petition is allowed.Case Number : Crl. M.C. No. 464 of 2019 15-03-2019
Bench : Raja Vijayaraghavan V.
For Petitioners : By Adv. Sunil V. Mohammed
For Respondents : R2 By Advs. Abdul Jaleel A, M. A. Sulfia R1 By Ajith Murali, Public Prosecutor
Central Technical Institute v. Iritty Municipality
The Kerala Municipality Act, 1994 - Sections 506 and 507 - “Recognised School” - “Tutorial Institution” - Registration - Petitioner's institute being a recognised one by the State Government, the Municipality is not at liberty to insist the petitioner to have registration of the institute as a tutorial institution - the second limb of Sec.506(b) clearly excludes a recognised school or college affiliated to any University in the State. Therefore, the two limbs have different operative methods.
The Constitution of India - Article 226 - If the notice issued is without authority of law and jurisdiction, the writ courts are justified in interfering, especially when facts are clear from the available records.
Case Number : W.P. (C) No. 32196 of 2018 26-02-2019
Bench : Shaji P. Chaly, J.
For Petitioners : P. Sheeba, Vishak K. Johnson
For Respondents : P.K. Ravisankar, P.M. Manoj (Senior Government Pleader)
Krishna Prasad v. Vrindaraj
The Code of Civil Procedure, 1908 - Order XXXVIII Rule 5 - The Family Courts Act, 1984 - Section 10 (1) - Power of the Family Court to order attachment of property before judgment.
The object of issuing attachment before judgment is to preserve the assets of the respondent and consequently to prevent the execution of prospective decree that may be passed by the court in the proceeding from being defeated. Before the court issuing an order of attachment, it must be satisfied that the respondent with the intent to obstruct or delay the execution of the decree is about to remove any part of his property from the jurisdictional limits of the court or to dispose of his assets. This satisfaction of the court found under under Rule 5 must relate to the veracity or genuineness of the claim advanced by the petitioning party in the proceedings and also to the proposed intent of the respondent to part with his assets, with a view to defeat or obstruct the execution of decree that may be passed against him. The court should be loathe to issue orders of attachment under this Rule, unless these grounds for forming satisfaction existed in the proceedings. The words “any decree that may be passed against him” indicate that it is sine qua non for the party applying for an order of attachment before judgment to show that there is reasonable probability or chance of a decree being passed in the proceeding in his favour. The existence of a probable case ascertained in favour of the applicant by the test of standard of reasonableness is called the prima facie case. The reasonable probability in the case must be understood and ascertained with reference to the veracity of the claim made by the applicant and also to the pleadings of the parties and other materials available on record at the time of the enquiry. It will be quite insensible at this stage of the proceeding to put the claim of the applicant to severe test of proof and insist for production of evidence that requires to be adduced at the stage of the trial. The expressions “by affidavit or otherwise” in Rule 5 leave the true scope of enquiry of the proceedings confined only to the examination of pleadings of the parties and relevant materials available on record at the time of enquiry. The concern of the court while examining the materials on record is to see as to whether there is reasonable probability for a decree being passed in favour of the applicant based on the claim made in the proceeding. The veracity of the claim made by the applicant in the proceeding can be said to be probable only when the court believes it to be so probable that an ordinary prudent man under the circumstances of the case would tend to act upon the supposition that it is so probable. [Paras 6, 7, 8]
Case Number : Mat.A. No. 7 of 2019 12-02-2019
Bench : C.K. Abdul Rehim & T.V. AnilKumar, JJ.
For Appellant : By Adv. Liju. M.P.