Mahir Haneef's Blog: high court

Showing posts with label high court. Show all posts

Tuesday, June 08, 2021

[READ JUDGMENT] COVID: Homeo doctors can prescribe adjuvant medicines, Rules Kerala HC

Homeopathy doctors can prescribe adjuvant medicines for COVID-19: Kerala HC

To read judgment, pls click: https://drive.google.com/file/d/1B4HAwh_0hZIFMfj2_5sSQWtdeUNRQfYo/view?usp=sharing

Thursday, April 29, 2021

[Read Judgment] Rape Accused Marrying Victim: HC Recalls Its Judgment Quashing Case - Read Judgment for Free

Rape Accused Marrying Victim: HC Recalls Its Judgment Quashing Case - Read Judgment for Free

Please click to read: https://drive.google.com/file/d/1Q2U2-WiMyMkV8HRd5L6HHI3TDe0ww2CX/view?usp=sharing

Thursday, January 12, 2017

BS-IV Must for Registering New Buses and Trucks in Kerala: Kerala High Court [Read Judgment]

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

THURSDAY, THE 8TH DAY OF DECEMBER 2016/17TH AGRAHAYANA, 1938

WP(C).No. 18028 of 2016 (C)
----------------------------

PETITIONER :
-----------------------

AUTOBAHN TRUCKING,
AUTOBAHN TRUCKING CORPORATION PVT. LTD.,
VIII/4248, NH 47, NEAR ATHANI JUNCTION,
NEDUMBASSERY P.O., KOCHI-683 585,
REPRESENTED BY ITS CHIEF OPERATING OFFICER.

BY ADV. SRI.V.KRISHNA MENON

RESPONDENTS:
--------------------------

1. STATE OF KERALA,
REPRESENTED BY ITS SECRETARY,
MINISTRY OF TRANSPORT,
GOVT. SECRETARIAT, THIRUVANANTHAPURAM-1.

2. TRANSPORT COMMISSIONER,
TRANSPORT COMMISSIONERATE,
KERALAM, TRANS TOWERS,
THIRUVANANTHAPURAM-695 001.

BY SPL.GOVERNMENT PLEADER SRI.P.SANTHOSH KUMAR

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 22-11-2016, ALONG WITH WPC.NO. 20015/2016 AND CONNECTED
CASES, THE COURT ON 08-12-2016 DELIVERED THE FOLLOWING:

sts

WP(C).No. 18028 of 2016 (C)
------------------------------------------

APPENDIX

PETITIONER(S)' EXHIBITS
---------------------------------------

P1 TRUE COPY OF THE NOTIFICATION ISSUED BY THE CENTRAL
GOVERNMENT.

P2 TRUE COPY OF THE CIRCULAR DATED 22-3-2016 ISSUED BY THE SECOND
RESPONDENT.

P3 TRUE COPY OF THE CIRCULAR DATED 29-4-2016 ISSUED BY THE SECOND
RESPONDENT.

RESPONDENT(S)' EXHIBITS: NIL
-----------------------------------------

/TRUE COPY/

P.A.TO JUDGE

sts

C.R.

P.B.SURESH KUMAR, J.

--------------------------------------------

WP.(C).Nos.18028, 20015, 24158, 24206, 25256

25477, 25478, 25629, 25646 & 26433 of 2016.

---------------------------------------------------------------

Dated this the 8th day of December, 2016

J U D G M E N T

The issue raised for consideration in this batch

of writ petitions is one and the same, and as such, they

are disposed of by this common judgment. The documents

referred to in this judgment are the documents produced

by the petitioner in WP.(C).No.18028 of 2016.

2. The petitioners are concerns/firms/

companies engaged in the trade of automobiles as

dealers of manufacturers. Mass Emission Standards to

regulate the output of air pollutants from internal

combustion engines of automobiles are set by the Central

Pollution Control Board and the same are implemented

WP.(C).No.18028 of 2016 & con. cases

: 2 :

place by place in the country by the Central Government by

amending the appropriate provision in the Central Motor

Vehicles Rules ('the Rules') framed under the Motor Vehicles

Act, 1988 ('the Act'). Sub Rule 15(a) of Rule 115 provides

that Bharat Stage IV Mass Emission Standards ('BS-IV

Standards') shall come into force in thirteen cities specified

therein in respect of four wheeled vehicles manufactured on

or after 1.4.2010, except the four wheeled transport vehicles

plying on inter-State Permits or National Permits or All India

Tourist Permits, within the jurisdiction of the cities

mentioned therein. Later, by virtue of the subsequent

amendments introduced in the form of provisos to sub rule

15(a) of Rule 115 of the Rules, BS-IV Standards have been

implemented in other cities/States also from the dates

mentioned in the said provisos. Ext.P1 is the latest

amendment to sub rule 15(a) of Rule 115 of the Rules. By

virtue of the said amendment, BS-IV Standards have been

introduced to a few States including the State of Kerala in

WP.(C).No.18028 of 2016 & con. cases

: 3 :

respect of four wheeled vehicles manufactured on or after

01.4.2016, except for the four wheeled transport vehicles

plying on inter-State Permits or National Permits or All India

Permits within the jurisdiction of the said States. According

to the petitioners, Ext.P1 amendment applies only to four

wheeled vehicles manufactured after 01.04.2016 and the

same does not apply to vehicles having more than four

wheels. The Transport Commissioner of the State

Government has also endorsed the said view initially by

issuing Ext.P2 circular to the Registering Authorities under

him by directing them to refrain from insisting BS-IV

Standards for vehicles having more than four wheels. Later,

the Transport Commissioner has issued Ext.P3 circular

clarifying that BS-IV Standards are applicable to vehicles

having more than four wheels also manufactured on or after

01.04.2016. These writ petitions are filed at that point of

time challenging Ext.P3 circular on the ground that Ext.P1

amendment does not apply to vehicles having more than

WP.(C).No.18028 of 2016 & con. cases

: 4 :

four wheels. Consequential reliefs are also sought in the writ

petitions.

3. Heard the learned counsel for the petitioners,

the learned Government Pleader as also the learned

Assistant Solicitor General.

4. Rule 2(k) of the Rules defines 'M' category

vehicles as under:

"(k) Category M" means a motor vehicle with at least four
wheels used for carrying Passengers"

Rule 2(o) of the Rules defines 'N' category vehicles as

under :

"Category 'N' as motor vehicle with at least four wheels used

for carrying goods which may also carry persons in addition to

the goods subject to the conditions specified in Para 3.2 of AIS

053-2005, as amended from time to time, till the

corresponding BIS specifications are notified under the Bureau

of Indian Standards Act, 1986 (63 of 1986)"

Sub rule 15 of Rule 115 of the Rules which deals with the

BS-IV Standards for 'M' and 'N' category vehicles, reads thus:

"15. Mass Emission Standards (Bharat Stage IV) for M and N

WP.(C).No.18028 of 2016 & con. cases

: 5 :

Category vehicles :

(a) the Mass Emission Standards for Bharat Stage IV shall

come into force in the National Capital Region and the cities of

Mumbai, Kolkata, Chennai, Bangalore, Hyderabad including

Secunderabad, Ahmedabad, Pune, Surat, Kanpur and Agra in

respect of four-wheeled vehicles manufactured on or after the 1st

April, 2010, except the four-wheeled transport vehicles plying on

Inter-State permits or National permits or All India Tourist permits

within the jurisdiction of these cities :

Provided that the Mass Emission Standards (Bharat Stage-

IV) shall be applicable in the cities of Sholapur and Lucknow in

respect of four wheeler vehicles manufactured on or after 1st June,

2010 except the four wheeler transport vehicles plying on Inter-

State Permits or National Permits or All India Tourist Permits, within

the jurisdiction of the said cities.

Provided further that the Mass Emission Standards (Bharat

Stage IV) shall be applicable in the cities of Puducherry, Mathura,

Vapi, Jamnagar, Ankaleshwar, Hissar, Bharatpur, Daman, Diu,

Silvasa, Unnao, Rae Bareilly, Aligarh, Karnal, Valsad, Yamuna

Nagar, Kurukshetra, Nizamabad, Medak and Mehboobnagar in

respect of four wheeled vehicles manufactured on or after the 1st

October, 2014 except the four wheeled transport vehicles plying on

Inter-State Permits or National Permit or All India Tourist Permits,

within the jurisdiction of the said cities.

WP.(C).No.18028 of 2016 & con. cases

: 6 :

Provided also that the Mass Emission Standards (Bharat

State IV) shall be applicable in the cities of Vrindavan, Kosi Kalan,

Hindaun city, Dholpur, Ahmednagar, Mahabaleshwar, Lonwala,

Palgarh, Dahanu, Talasari, Boisar, Panchagani, Mahad, Nagothana,

Indapura, Vizag, Kochi, Trivandrum, Kavaratti, Nagar, Dig, Nadbai,

Bhiwani, Jind, Mahendragarh, Hansi, Charki Dadri, Narnaul, Kiruli

and Fatehpur Sikri in respect of four wheeler vehicles

manufactured on or after the 15th July, 2015 except the four

wheeler transport vehicle plying on Inter-State Permits or National

Permits or All India Tourist Permits, within the jurisdiction of the

said cities.

Provided also that, without prejudice to the provisions

contained in the above provisos, the Mass Emission Standards,

Bharat Stage IV, shall be applicable to the States of Jammu and

Kashmir (except districts of Leh and Kargil), Punjab, Haryana,

Himachal Pradesh, Uttarakhand and district of Hanumangarh and

Sri Ganganagar in the State of Rajasthan and district of

Saharanpur, Muzaffarnagar, Bijnaur, Jyotiba Phule Nagar, rampur,

Moradabad, Aligarh, Badaun, Bareilly, Mathura, Mahamayanagar,

Etah, Agra, Firozabad, Etawah, Mainpuri, Pilibhit, Shamli, Sambhal,

Farrukabad, Kannauj, Auriya and Kasganj in the State of Uttar

Pradesh in respect of four wheeled vehicles manufactured on or

after the 1st October, 2015, except the four wheeled transport

vehicles plying on Inter-State Permits or National Permits or All

WP.(C).No.18028 of 2016 & con. cases

: 7 :

India Tourist Permits, within the jurisdiction of said district and

States :

Provided also that, without prejudice to the provisions

contained in the above provisos, the Mass Emission Standards,

Bharat Stage IV, shall be applicable in the States of Goa, Kerala,

Karnataka, Telangana, Odisha and the Union territories of Daman

and Diu, Dadra and Nagar Haveli and Andaman and Nicobar

Islands, districts of Mumbai, Thane and Pune in the State of

Maharashtra and districts of Surat, Valsad, Dangs and Tapi in the

State of Gujarat, in respect of four-wheeled vehicles manufactured

on or after the 1st April, 2010, except the four wheeled transport

vehicle plying on Inter-State Permits or National Permits or All India

Tourist Permits, within the jurisdiction of the said district and

States;

1st April, 2016, except the four wheeled transport vehicle plying on

Inter-State Permits or National Permits or All India Tourist Permits,

within the jurisdiction of the said district and States;

Explanation -- For the purposes of sub-rules (14) and (15), the

"National Capital Region" shall have the same meaning as

assigned to it in clause (f) of Section 2 of the National Capital

Region Planning Board Act, 1985 (2 of 1985).

(underline supplied)

WP.(C).No.18028 of 2016 & con. cases

: 8 :

The underlined provisos in the sub rule quoted above are the

provisos introduced by virtue of Ext.P1 amendment. As

recited in the provisos introduced to sub rule 15(a) of Rule

115 of the Rules earlier, the newly introduced fifth proviso

also recites that BS-IV Standards shall be applicable to four

wheeled vehicles manufactured on or after the date

mentioned therein other than the four wheeled vehicles

specifically excluded therein. It is placing reliance on the

expression 'four wheeled vehicles' contained in the provisos

including the fifth proviso, the petitioners contend that the

said proviso does not apply to vehicles having more than

four wheels. The short question therefore, is whether

vehicles having more than four wheels would fall within the

scope of the fifth proviso to sub rule 15(a) of Rule 115 of the

Rules introduced as per Ext.P1 amendment.

5. The learned counsel for the petitioners

vehemently contended that in so far as the provision in sub

rule 15(a) to the Rules and the provisos to the same, are

WP.(C).No.18028 of 2016 & con. cases

: 9 :

categoric in its terms that it applies only to four wheeled

vehicles, there is no scope for any doubt that it does not

apply to vehicles having more than four wheels. According

to the learned counsel, the policy of the Central Government

is to introduce BS-IV Standards to vehicles stage by stage

and place by place in the country and therefore, if one look

at the provision contained in sub rule 15(a) and the

amendments introduced to the said provision from time to

time in the light of the said policy, it is evident beyond doubt

that there is no intention to implement BS-IV Standards for

vehicles having more than four wheels and the expression

'four wheeled vehicles' has been used in the provision for

the said purpose. Per contra, the learned Assistant Solicitor

General as also the learned Special Government Pleader

contended that sub rule 15 of Rule 115 of the Rules deals

with the BS-IV Standards for 'M' and 'N' category vehicles

including vehicles having more than four wheels and

therefore, such vehicles would also come within the scope of

WP.(C).No.18028 of 2016 & con. cases

: 10 :

the provision.

6. The fact that BS-IV Standards have been

made applicable to all four wheeled vehicles coming under

'M' and 'N' categories in the State with effect from 1.4.2016

is not in dispute. Likewise, the fact that vehicles having

more than four wheels would also come under 'M' and 'N'

categories is not in dispute. Rule 115 of the Rules is the

rule dealing with emission of smoke, vapour etc. from motor

vehicles. Sub rules 1 to 14 of Rule 115 deal with the Mass

Emission Standards applicable to vehicles before the

introduction of BS-IV Standards. In all these rules, the

vehicles are categorized only into two wheelers, three

wheelers and four wheelers, wherever the categorization is

warranted. That is the scheme of Rule 115. There is no

reference in sub rules 1 to 14 about vehicles having more

than four wheels. Sub rules 15 to 17 deal specifically with

BS-IV Standards, of which sub rule 15 deals with 'M' and 'N'

category vehicles, sub rule 16 deals with two wheelers and

WP.(C).No.18028 of 2016 & con. cases

: 11 :

sub rule 17 deals with three wheelers. Out of the said sub

rules, sub rule 15 was introduced by way of an amendment

to the Rules on 9.2.2009. The provisos to the said provision

were introduced later from 2010 to 2016. Neither in the

provision nor in its amendments made during the last 6

years, vehicles having wheels more than 4 have been

specifically included. Instead, a common expression viz. 'four

wheeled vehicles' is used in all the provisions. If one look at

sub rule 15 in the light of the scheme of Rule 115 as

aforesaid, it is evident that the expression four wheeled

vehicles contained in sub rule 15(a) is intended to cover all

motor vehicles coming under 'M' and 'N' categories. Further,

when BS-IV Standards have been implemented throughout

the country even for two wheeled and three wheeled

vehicles manufactured after 1.4.2016, there is no reason at

all to exempt vehicles having more than four wheels from

the implementation of BS-IV StandardS. There is yet another

reason also for me to come to the said conclusion. That is

WP.(C).No.18028 of 2016 & con. cases

: 12 :

the heading of sub rule 15. The heading of sub rule 15 is

'Mass Emission Standards (Bharath Stage IV) for 'M' and 'N'

category vehicles'. It is now trite that headings prefixed to a

Rule can be regarded as preambles to the Rule and though

they may not control the plain words of the statute, the

same would certainly explain ambiguous words and if there

is any doubt as to the interpretation of the words in the rule,

the heading would certainly help to resolve the ambiguity

(See Bhinka and others v. Charan Singh (AIR 1959 SC

960). Therefore, it is possible to infer the conclusion arrived

at by me from the heading of the sub rule also. Above all, it

is a settled principle of interpretation that the words of a

statute must be understood in the sense which the

legislature has in view and their meaning must not be found

so much in a strictly grammatical or etymological propriety

of language [See Union of India v. Sankalchand Himatlal

Sheth (1977) 4 SCC 193]. While reiterating the said

proposition, the Apex Court in Union of India v.

WP.(C).No.18028 of 2016 & con. cases

: 13 :

Sankalchand Himatlal Sheth (supra) has referred to the

view expressed by the Supreme Court of United States in

Towne v. Eisner [(1917) 245 US 418] which reads thus:

"The words used in a statute cannot be read in isolation:

their colour and content are derived from their context,

and, therefore, every word in a statute must be

examined in its context. And when I use the word

'context', I mean it in its widest sense as including not

only other enacting provisions of the same statute, but

its preamble, the existing state of the law, other statutes

in the pari materia and the mischief which - the statute

was intended to remedy".

For all the aforesaid reasons, I have no hesitation to hold

that Ext.P1 amendment applies to all 'M' and 'N' category

vehicles. There is, therefore, no merit in the writ petitions

and the same are, accordingly, dismissed.

Sd/-
P.B.SURESH KUMAR
JUDGE
rsr

Tuesday, January 10, 2017

Kerala HC Upholds Kerala Univ's Decision to Implement UGC Norms for Research [Read Judgment]

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

MONDAY, THE 28TH DAY OF NOVEMBER 2016/7TH AGRAHAYANA, 1938

WP(C).No. 33231 of 2016 (D)
----------------------------

PETITIONER(S):
-------------

1. ATHUL S,
CHERUVAYALIL KUNNATH VEEDU,
PATTATHANAM P.O,KOLLAM 691 021.

2. SHANTHINI DAS,
SATHYA MUNDAKKAL,KOLLAM691001.

3. SOUMAY V,
NANDANA KORANI.P.O,
ASSEMBLY MUKKU,TRIVANDRUM,695 104.

4. SUMITH S.S,
SUDHA BHAVAN KURIVIKKDU,
VATTIYOORKAVU,TRIVANDRUM,695013.

5. BINDU.P.O,
PALAKKAPARAMBIL HOUSE,
THRITHALA PATTITHARA,PALAKAD 679 534.

6. VIRGIN M,
PUTHUVAL HOUSE,THUMBA ST.XAVIERS,
COLLEGE P.O,TRIVANDRUM,695 586.

7. H.AKSHAYA GOMATI,
QTR NO.C/3/25/RTTC CAMPUS,
KAIMANAM,TRIVANDRUM P.O,695 040.

8. ARCHANA A.G,
PULLIYIL HOUSE,MELMURI 27 P.O,
MALAPURAM 676 517.

BY ADVS.SRI.LIJU.V.STEPHEN
SMT.INDU SUSAN JACOB

RESPONDENT(S):
--------------

1. THE KERALA UNIVERSITY,
REPRESENTED BY ITS REGISTRAR,
UNIVERSITY OFFICE,PALAYAM,
THIRUVANANTHAPURAM 695001.

-2-

-2-

WPC NO 33231 OF 2016:
--------------------

2. THE REGISTRAR,THE KERALA UNIVERSITY,
UNIVERSITY OFFICE,PALAYAM,
THIRUVANANTHAPURAM 695001.

* ADDL R3 IMPLEADED

3. THE UNIVERSITY GRANTS COMMISSION,
BAHADUR SHAZ ZAFAR MARG,NEW DELHI 110 002
REPRESENTED BY ITS SECRETARY.

* ADDL R3 IS IMPLEADED AS PER ORDER DATED 28/11/2016 IN
IA NO 16982/2016.

R1-R2 BY ADV. SRI.THOMAS ABRAHAM, SC
R3 BY ADV. SRI.S.KRISHNAMOORTHY, CGC

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 28-11-2016, ALONG WITH WPC. 35574/2016, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:

K.V.

WPC NO 33231 OF 2016:
--------------------

APPENDIX

PETITIONERS EXHIBITS:
-------------------

P1: COPY OF THE NOTIFICATION DATED 11.3.2016 ISSUED BY 2ND
RESPONDENT.

P2: COPY OF THE RELEVANT PAGE HALL TICKET FOR ENTRANCE TEST FOR
M.PHIL ADMISSION ISSUED TO 1ST PETITIONER BY 1ST RESPONDENT.

P3: COPY OF THE HALL TICKET FOR ENTRANCE TEST FOR M.PHIL ADMISSION
ISSUED TO 2ND PETITIONER BY 1ST RESPONDENT.

P4: COPY OF THE RELEVANT PAGE HALL TICKET FOR ENTRANCE TEST FOR
M.PHIL ADMISSION ISSUED TO 3RD PETITIONER BY 1ST RESPONDENT.

P5: COPY OF THE APPLICATION FORM OF 4TH PETITIONER.

P6: COPY OF THE HALL TICKET FOR ENTRANCE TEST FOR M.PHIL ADMISSION
ISSUED TO ENTRANCE TEST FOR M.PHIL ADMISSION ISSUED TO 5TH
PETITIONER BY 1ST RESPONDENT.

P7: COPY OF THE HALL TICKET FOR ENTRANCE TEST FOR M.PHIL ADMISSION
ISSUED TO 6TH PETITIONER BY 1STRESPONDENT.

P8: COPY OF THE COMPETED APPLICATION FORM OF 7TH PETITIONER.

P9: COPY OF THE TIME TABLE ISSUED BY RESPONDENT UNIVERSITY.

P10: COPY OF THE RANK LIST DATED 25.8.2016 FOR ISLAMIC
HISTORY,UNIVERSITY DEPARTMENTS.

P11: COPY OF THE RANK LIST DATED 25.8.2016 FOR THEATRE ARTS AND FILM
AESTHETICS FOR EDUCATION,UNIVERSITY DEPARTMENT.

P12: COPY OF THE RANK LIST DATED 25.8.2016 FOR HISTORY,UNIVERSITY
DEPARTMENT.

P13; COPY OF THE RANK LIST DATED 25.8.2016 FOR MUSIC,UNIVERSITY
DEPARTMENT.

P14: COPY OF THE PRESS NOTE DATED 17.9.2016 ISSUED BY RESPONDENT
UNIVERSITY.

P15: COPY OF THE SCHEDULE FOR INTERVIEW ISSUED BY RESPONDENT
UNIVERSITY.

P16: COPY OF THE ORDER DATED 20.7.2016 ISSUED BY UNIVERSITY OF
KERALA

P17: COPY OF REPRESENTATION MADE BY THE KERALA UNIVERSITY
DEPARTMENTS UNION (2015-16).

P18: COPY OF REPRESENTATION MADE BY 1ST PETITIONER.

-2-

-2-
WPC 33231 OF 2016:
------------------

RESPONDENTS ANNEXURES:
----------------------

R1(A): COPY OF THE NO.AC D/M.PHIL/2016-17 DATED 18.10.2016.

/TRUE COPY/

P.A.TO JUDGE
KV.

A.M. SHAFFIQUE, J.
===============
W.P. (C) Nos. 33231 & 35574 of 2016
=======================

Dated this, the 28th day of November, 2016

J U D G M E N T

These two writ petitions concern a common issue and therefore

heard and decided together. Petitioners are candidates who had

applied for admission to M.Phil Course pursuant to notification dated

11/3/2016. They participated in the entrance examination and are

also included in the rank list. But, in the meantime, University by

order dated 20/7/2016 accorded sanction to the University Grants

Commission Regulations of 2016 with effect from 5/7/2016 by which

certain restrictions have been imposed in respect of the number of

candidates to be attached under one Guide.

2. Petitioners therefore submit that their opportunity to be a

Research Scholar has considerably been reduced on account of the

restrictions imposed by the University based on UGC Regulations.

3. The common contention urged by the petitioners is that

as per the prospectus, it is indicated that the strength of M.Phil

students at the University Teaching and Research Departments shall

be in the ratio of two students per permanent qualified teacher in

W.P(C) Nos.33231 & 35574/16

-:2:-

the concerned subject, and in the University College,

Thiruvananthapuram, the total strength of each subject shall be 5

seats subject to usual rules of reservation for SC/ST and OBC

candidates. It is therefore contended that by virtue of the

University adopting the regulations by University order dated

20/7/2016, their right to become research scholars for M.Phil has

been considerably reduced. It is contended that since the

selection process has already been commenced by receiving

application, conducting entrance test and publishing the rank list,

no deviation can be made from Ext.P1 notification. Contention

urged by the petitioners is that the rights of the parties are to be

decided as per the notification and cannot be regulated by a

subsequent adoption of UGC (Minimum Standards and Procedures

for Award of M.Phil/Ph.D Degree) Regulations, 2016 with effect

from 5/7/2016. In other words, the conditions in the regulation

cannot be made applicable to the selection process initiated

pursuant to Ext.P1 notification.

4. A statement has been filed on behalf of the University

inter alia stating that UGC notified the UGC Regulations of 2016

prescribing new criteria and procedures, which came into effect

W.P(C) Nos.33231 & 35574/16

-:3:-

from 5/7/2016. The rank list published in the website on

25/8/2016 was provisional as the University is bound to

implement the Regulation 2016 w.e.f. 5/7/2016. The procedure

for M.Phil admission also had to be adhered according to the

Regulation. Interview was conducted as part of the new UGC

guideline. It is further submitted that as per the Regulations, the

number of M.Phil seats for 2016 admission has been enhanced in

some departments whereas in some of the departments

University is forced to reduce the intake owing to the paucity of

qualified Research Supervisors. Since the admission procedures

are going on, memos were issued for first allotment and other

allotments are remaining. It cannot be stated that the petitioners

are denied admission at this point of time. It is further submitted

that University is bound to implement all conditions laid down by

UGC and accordingly, University has issued order dated

20/7/2016. In regard to the decrease in number of seats, it is

further submitted that University has decided to solve the

problem by allocating research supervisors duly approved by the

University from School of Distance Education, University of Kerala,

Affiliated Colleges, Research Laboratories in Geographical

W.P(C) Nos.33231 & 35574/16

-:4:-

jurisdiction of University of Kerala, strictly in accordance with

M.Phil Regulations and to maintain status quo of 2015-16.

Annexure R1(a) is the University order dated 18/10/2016 in that

regard.

5. Having regard to the University order dated

18/10/2016, according to the University, substantial grievance of

the petitioners have been taken care of. But the learned counsel

for the petitioners submits that the procedure that was

contemplated at the time when the prospectus had been issued

ought to have been continued during the present academic year.

Learned counsel for the petitioners placed reliance on a judgment

of the Apex Court in Hemani Malhotra v. High Court of Delhi

(AIR 2008 SC 2103). In the above case, the question concerned

was relating to the decision taken by the High Court to prescribe

cut off marks for viva voce test subsequent to the notification. It

was held that a prescription of cut off marks to viva voce test by

the respondent was not in accordance with the settled legal

position as held in K.Manjusree v. State of Andhra Pradesh

and another [(2008) 3 SCC 512].

6. Yet another judgment relied upon is P.Mahendran v.

W.P(C) Nos.33231 & 35574/16

-:5:-

State of Karnataka [(1990) 1 SCC 411]. That was a case

relating to appointment to the post of Motor Vehicles Inspectors.

After the commencement of process of selection, Rule was

amended changing the eligibility criteria for selection and

appointment. It was held that the change in rule could not affect

the right of those candidates who were qualified for selection and

appointment on the date they applied for the post. It was held

that the selection process is to be completed in accordance with

law as it stood at its commencement.

7. The case on hand does not call for a situation where

the concern is with regard to a selection process, as far as

appointment to a particular post is concerned. Here, the

notification has been issued for preparation of a rank list to be a

candidate for undertaking M.Phil Course. There is no change in

the selection process and there is no change in the eligibility

conditions also. The change effected by the 2016 UGC Regulation

is with reference to the number of candidates who can be

attached to the Research Supervisor/Guide. Such a change by

itself will not affect the candidate in any manner. Of course, as

contended by the petitioners, as per the prospectus, if two

W.P(C) Nos.33231 & 35574/16

-:6:-

students could be attached to a permanent qualified teacher and

in University college, the total strength in each subject could be 5

seats, as per the UGC Regulations, a Professor as Research

Supervisor at any given point of time shall not guide more than

three M.Phil Scholars, an Associate Professor a maximum of two

and an Assistant Professor only one M.Phil Scholar. This procedure

had been adopted by UGC to have a uniform standard of research

activity being undertaken by students. Comparing it with

prospectus condition, in the prospectus though it is mentioned

regarding the strength of M.Phil students, in comparison to the

present Regulations, it cannot be contended that it would affect

the candidates in any manner. UGC Regulations being statutory

in nature, before the completion of the selection process, Rules

have been amended. Necessarily, the said rules have to be

complied with by the University. The petitioners can insist for

implementation of the notification conditions only if they have a

vested legal right. Even before the selection process is

completed, the UGC Regulations are implemented by the

University and it will not affect the eligibility criteria as far as

selection is concerned. Hence, there is nothing wrong on the part

W.P(C) Nos.33231 & 35574/16

-:7:-

of the University in adopting the UGC Regulations, 2016.

8. As far the right of a candidate who finds a place in a

select list to get an appointment in a recruitment process is rather

well settled. In a recent judgment of the Apex Court in

Kulwinder Singh v. State of Punjab [(2016) 6 SCC 532], it was

held that merely for the reason that the name of a candidate finds

a place in the select list/merit list, it does not give him

indefeasible right to appointment as well and it is always open

for the Government not to fill up the vacancies, however, such

decision should not be arbitrary or unreasonable. Once it is found

that the decision is based on valid reasons, the Courts should not

interfere with the matter. However, in the matter relating to

admission based on a prospectus and a select list is prepared

based on such prospectus, it is not open to the State Government

to alter the terms of conditions as held by the Apex Court in

Parmender Kumar v. State of Haryana [(2012) 1 SCC 177].

There is no such situation in the present case. Here the change is

only in regard to the number of candidates who could be attached

to a Guide. In other words, it does not affect the select list in any

manner.

W.P(C) Nos.33231 & 35574/16

-:8:-

9. Even otherwise, the University is bound by the

Regulations framed by the UGC. Further, University having taken

note of the dearth in the number of Research Supervisors

available has taken preventive measures by issuing notification

dated 18/10/2016, which will substantially redress the grievance

of the persons who are in the ranked list.

In the said circumstances, I do not find any reason to

interfere with the action taken by the University in this regard.

Writ petitions are, therefore, dismissed.

Sd/-
A.M. SHAFFIQUE, JUDGE
Rp

//True Copy//

P.S to Judge

Tuesday, November 29, 2016

Govt Can't Deny Beer Parlour Licence Citing Liquor Policy: HC [Read Judgment]

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

THURSDAY, THE 17TH DAY OF NOVEMBER 2016/26TH KARTHIKA, 1938

WP(C).No. 36030 of 2016 (C)
----------------------------

PETITIONER(S):
-------------

HOTEL OLIVE NEST PVT. LTD
OPPOSITE INFO PARK,
SMAR CITY, KAKKNAD, ERNAKULAM DISTRICT,
REPRESENTED BY ITS DIRECTOR DR.MATHEW THOMAS.

BY ADVS.SRI.GEORGE POONTHOTTAM
SRI.SUNIL JACOB

RESPONDENT(S):
--------------

1. STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM 695 -001

2. THE COMMISSIONER OF EXCISE
COMMISSIONERATE OF EXCISE,
THIRUVANANTHAPURAM 695 001.

3. THE DEPUTY COMMISSIONER OF EXCISE
EXCISE DIVISION, ERNAKULAM.

R1 TO R3 BY SENIOR GOVERNMENT PLEADER SMT.C.S.SHEEJA

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 17-11-2016, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:

bp

WP(C).No. 36030 of 2016 (C)
----------------------------

APPENDIX

PETITIONER(S)' EXHIBITS
-----------------------

P1: TRUE COY OF THE CLASSIFICATION ORDER DATED 29.5.2015
ISSUED BY THE COMPETENT OFFICER IN GOVERNMENT OF
INDIA, MINISTRY OF TOURISM

P2: TRUE COPY OF THE APPLICATION OF THE PETITIONER
DATED 24.4.2015

P3: TRUE COPY OF THE APPLICATION FOR FL-11 LICENSE
DATED 10.2.2016

P4: TRUE COPY OF THE COMMUNICATION NO.E5-1591/16
DATED 2.3.2016

P5: TRUE COPY OF THE APPLICATION FOR ISSUANCE OF FL-11
LICENSE DATED 1.4.2016

P6: TRUE COPY OF THE JUDGMENT DATED 8.4.2016 IN WPC
NO.13292/2016 PASSED BY THE 2ND RESPONDENT

P7: TRUE COPY OF THE GOVERNMENT ORDER
NO.741/2016/EX.DEPT DATED 26.9.2016

P8: TRUE COPY OF THE ORDER NO.XC6 -E- 5335/2016 DATED
22.9.2016 PASSED BY THE 2ND RESPONDENT

P9: TRUE COPY OF THE GOVERNMENT ORDER NO.GO(MS)
NO.92/2016/EX.DEPT DATED 1.10.2016

RESPONDENT(S)' EXHIBITS : NIL.

//TRUE COPY//

P.A. TO JUDGE

bp

P.B. SURESH KUMAR, J.

------------------------------------------------

W.P.(C) No.36030 of 2016

------------------------------------------------

Dated this the 17th day of November, 2016

JUDGMENT

The petitioner is a Four Star classified hotel. The

petitioner has applied for licence in form FL-11 of the

Foreign Liquor Rules ('the Rules') for conducting a beer

and wine parlour in the hotel. Since the application

preferred by the petitioner has not been considered, the

petitioner approached this Court and as per Ext.P6

judgment, this Court directed the Government to take a

final decision on the application. Pursuant to Ext.P6

judgment, the Government considered the application of

the petitioner and rejected the same as per Ext.P7 order.

Ext.P7 order is under challenge in this writ petition.

2. A statement has been filed on behalf of the

third respondent supporting Ext.P7 order.

W.P.(C) No.36030 of 2016 -2-

3. Heard the learned counsel for the petitioner

as also the learned Government Pleader.

4. A perusal of Ext.P7 order indicates that the

application preferred by the petitioner has been rejected

by the Government on the ground that the grant of the

licence sought for by the petitioner is against the Abkari

Policy of the Government notified as per G.O.(MS)

No.139/14/TD dated 22.08.2014. In W.P.(C) No.33378 of

2016, in an exactly identical case, after referring to Rule

13 (11) of the Rules, it was held by this Court that the

rejection of the application of the petitioner therein on the

basis of the Abkari Policy of the Government for the year

2014-15 was illegal. The relevant portion of the judgment

in the said case reads thus:

"When the statutory rules confer right on the petitioner to apply for

and obtain licence in Form FL-11, the same cannot be denied based

on the policy of the Government, for, the policy cannot prevail over

the statutory rules. Further, the policy relied on by the respondents

is the Abkari Policy of the Government for the year 2014-15 notified

on 22.8.2014. The Rules have been amended pursuant to the said

policy immediately thereafter by S.R.O.No.520 of 2014 dated

27.8.2014. The said notification amending the Rules pursuant to

the policy indicates beyond doubt that the said policy has nothing to

do with the beer and wine parlour licences. The policy referred to

W.P.(C) No.36030 of 2016 -3-

above was intended only to limit licence in Form FL-3 to hotels

which have obtained Five Star and Five Star Deluxe classifications

from the Ministry of Tourism, Government of India. Consequently,

pursuant to the said policy, amendment was introduced only to

Rule 13(3) dealing with FL-3 licences. There has been no

amendment at all to Rule 13(11) dealing with beer and wine parlour

licences pursuant to the said policy. Ext.P6 order of the

Government, in the circumstances, is liable to be quashed and I do

so."

In the light of the decision of this Court referred to above,

Ext.P7 order is quashed and the Government is directed to

consider the application submitted by the petitioner afresh,

in accordance with the Rules, untrammelled by the

Government Order dated 22.08.2014. This shall be done

within two weeks from today.

The writ petition is allowed as above.

Sd/-
P.B. SURESH KUMAR
JUDGE
bpr

Tuesday, November 22, 2016

No Separate Water Connections for Individual Flats: Kerala HC [Read Judgment]

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE THE CHIEF JUSTICE MR.MOHAN M.SHANTANAGOUDAR
&
THE HONOURABLE MR. JUSTICE SATHISH NINAN

THURSDAY, THE 27TH DAY OF OCTOBER 2016/5TH KARTHIKA, 1938

WA.No. 1556 of 2016 () IN WP(C).16110/2015
--------------------------------------------
AGAINST THE JUDGMENT IN WP(C) 16110/2015 DATED 28-03-2016
--------------

APPELLANT(S)/RESPONDENTS 2 & 3 :-
----------------------------------

1. THE KERALA WATER AUTHORITY
REP. BY ITS MANAGING DIRECTOR,
JALA BHAVAN, THIRUVANANTHAPURAM, PIN - 695 033.

2. ASSISTANT EXECUTIVE ENGINEER
KERALA WATER AUTHORITY,
KALOOR SUB DIVISION, KOCHI - 682 017.

BY ADV. SRI.GEORGE MATHEW, SC

RESPONDENT(S)/PETITIONERS & 1ST RESPONDENT :-
-------------------------------------------

1. V.K.SANKARANKUTTY, FLAT NO.2A J.M.MANOR,
SASTHA TEMPLE ROAD, KALOOR, KOCHI - 682 017.

2. M.JAYASANKAR, FLAT NO. 2A J.M.MANOR,
SASTHA TEMPLE ROAD, KALOOR, KOCHI - 682 017.

3. STATE OF KERALA
REP. BY SECRETARY IN-CHARGE OF
KERALA WATER AUTHORITY, SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.

R1 & R2 BY ADV. SRI.JACOB MATHEW MANALIL
R3 BY SR.GOVERNMENT PLEADER SRI.V.TEKCHAND

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 27-10-
2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

MOHAN M. SHANTANAGOUDAR, C.J
&
SATHISH NINAN, J.
-------------------------------------------------------
W.A. No.1556 of 2016
---------------------------------
Dated this the 27th day of October 2016

J U D G M E N T

Mohan M. Shantanagoudar, C.J

This writ appeal is filed by respondents 2 and 3 in W.P.(C)

No.16110 of 2015 against the judgment dated 28.3.2016 passed

therein.

By the impugned judgment, the learned Single Judge

directed the appellants to consider the application filed by the writ

petitioners/respondents 1 and 2 herein in terms of Regulation 7(d)

of the Kerala Water Authority (Water Supply) Regulations, 1991

(hereinafter called as 'the Regulations' for short).

Respondents 1 and 2 approached this Court with the

aforesaid writ petition seeking a direction to the Kerala Water

Authority (for short, 'KWA') to provide water connection to them and

to declare that they have a right to individual domestic connection.

The learned Single Judge, in the impugned judgment,

held that the writ petitioners could not be directed to apply for the

entire apartment complex in terms of Regulation 7(g) as they were

seeking only separate connections to individual apartments owned

W.A. No.1556 of 2016

-: 2 :-

by each one of them and not a common connection to the apartment

complex. Based on this observation, certain other directions were

issued in favour of the writ petitioners.

2. It is not in dispute that respondents 1 and 2 are the

owners of two flats in the apartment complex, which consists of 64

apartments. They also need individual water connection directly

from the appellants. They do not want to share water, which is

supplied common to the apartment complex by the KWA, along with

others and in that regard, they approached this Court after having

failed in their attempt to get individual connections from the KWA.

3. We find that the learned Single Judge has ignored the

provisions of Section 38A of the Kerala Water Supply and Sewerage

Act, 1986 (for short, 'Act 1986') and the purport behind Regulation

7(g) read with Appendix - C to the Regulations. On a cohesive

reading of the aforementioned provisions, it is amply clear that it is

not open for the respective apartment owners in the apartment

complex to make application for getting water connection

individually. The individual apartment owners cannot be equated to

the owner of the independent houses under the provisions of the

Act, 1986 as well as the Regulations framed thereunder for this

purpose. Regulation 7(d) may be applicable in the case of one or

W.A. No.1556 of 2016

-: 3 :-

several houses situated in the same premises but bearing separate

house numbers and that cannot be applicable to an apartment

complex. Considering the facts and circumstances involved in the

case on hand, Regulation 7(g) is applicable herein and the said

Regulation also needs to be considered along with Appendix - C.

These provisions make it clear that the authorised

representative of the apartment complex will have to make

application seeking water connection to the apartment complex.

4. The question involved in this case is fully covered by two

judgments of the Division Bench of this Court in W.A. No.202 of

2016 and W.A. No.205 of 2016, which were disposed of on

31.3.2016, wherein, this Court, after setting aside the similar

judgments passed by the learned Single Judge, directed the writ

petitioners to approach the KWA and seek water connection in

terms of Regulation 7(g) of the Regulations.

5. We do not find any ground to disagree with the reasons

assigned in the conclusion arrived at in W.A. Nos.202 of 2016 and

205 of 2016. Hence, the impugned judgment is liable to be set aside

and we do so. Consequently, W.P.(C) No.16110 of 2015 stands

dismissed. It is open for the writ petitioners to approach the KWA

as per Regulation 7(g) of the Regulations for appropriate reliefs. If

W.A. No.1556 of 2016

-: 4 :-

such an application is received, the same shall be considered by the

KWA, as early as possible, but not later than the outer limit of one

month from the receipt of such application.

The writ appeal is allowed accordingly.

Sd/-
MOHAN M. SHANTANAGOUDAR
CHIEF JUSTICE

Sd/-
SATHISH NINAN
JUDGE

//TRUE COPY//

P.A. TO JUDGE

Jvt/27.10.2016

Divorce No Bar for Women to Seek Protection from Domestic Violence [Read Judgment]

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE SUNIL THOMAS

THURSDAY, THE 13TH DAY OF OCTOBER 2016/21ST ASWINA, 1938

Crl.MC.No. 2990 of 2016 ()
---------------------------
AGAINST THE ORDER/JUDGMENT IN MC 51/2015 of J.M.F.C.-I,ATTINGAL

PETITIONER/RESPONDENT:
---------------------

BIPIN,
AGED 36 YEARS, CHANDRASENAN,
RESIDING AT T.C 50/365(3), PANACHAYIL,
KALADI, KARAMANA P.O.,
THIRUVANANTHAPURAM.

BY ADVS.SRI.M.RAMASWAMY PILLAI
SMT.PREETHY R. NAIR

RESPONDENT(S)/PETITIONER AND STATE:
-----------------------------------

1. MEERA D.S.,
AGED 32 YEARS,
D/O.K. SUSHAMA DEVI,
MANU BHAVANAM, OPP. MUNICIPAL
BUILDING, ATTINGAL P.O.,
THIRUVANANTHAPURAM DISTRICT.

2. GOURAV M. BIPIN, AGED 21/2 YEARS,
REPRESENTED BY HIS NATURAL GUARDIAN MOTHER
MEERA D.S., AGED 32 YEARS, D/O.K. SUSHAMA DEVI,
MANU BHAVANAM, OPP. MUNICIPAL BUILDING,
ATTINGAL P.O., THIRUVANANTHAPURAM DISTRICT.

3. STATE OF KERALA, REPRESENTED BY ITS
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

R1 & 2 BY ADV. SRI.SHAJIN S.HAMEED
BY PUBLIC PROSECUTOR:SMT BINDU GOPINATH

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
13-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

'CR'

SUNIL THOMAS, J.
=================
Crl.M.C.No.2990 of 2016
=================
Dated this the 13th day of October, 2016

ORDER

The short question that arises for consideration in this

case is whether subsistence of the matrimonial relationship is the

sine-qua-non for seeking reliefs under Protection of Women from

Domestic Violence Act, 2005 ('D.V Act' for brevity, hereinafter). To

be more precise, whether a legally divorced wife can seek reliefs

under the D.V Act.

2. Shorn of all unnecessary details, the brief facts of the

case is as follows. The petitioner in the Crl.M.C had married the

first respondent in 2011. Second respondent child was born to

them. The matrimonial relationship got strained thereafter and

hence the spouses moved family court with a joint petition for

divorce invoking section 13B of Hindu Marriage Act. After

compliance of statutory formalities, divorce was granted by the

Family Court in May 2015. Marriage stood dissolved with effect

from the date of judgment. Thereafter in August 2015, respondents

1 and 2 filed the present application before the magistrate court

seeking reliefs under sections 18, and 20 of the D.V. Act. The

Crl.M.C.2990/16
2

reliefs sought were a protection order against domestic violence,

return of 75 sovereigns of gold ornaments of the first respondent

misappropriated by the petitioner or its value, order restraining him

from operating the bank locker in which the gold ornaments were

kept and for return of the passport of the first respondent, retained

by the petitioner.

3. The petitioner has sought to quash the above

proceedings, on the ground that the above application is an abuse of

the process of law. Three specific grounds were urged by the

petitioner. Firstly, divorce on mutual consent was sought by parties

on a specific, categoric agreement that wife will not claim money,

ornaments or maintenance against husband in future. Secondly

that, the reliefs sought can be granted only to a woman who is or

has a subsisting matrimonial relationship or a relationship in the

nature of a matrimonial relationship and not to a divorced wife.

Thirdly, at any rate, even if all other reliefs can be granted, a relief

in the nature of protection order cannot be granted to a divorced

wife and child born in such relationship, since the matrimonial

relationship was brought to an end factually and legally. Otherwise

such relief can be sought at any time during the entire life time of

wife and child, which was not contemplated by the Statute.

Crl.M.C.2990/16
3

4. Before analysing the above contentions, it is essential to

bear in mind the significance of the D.V Act as a progressive and

beneficial piece of legislation, intended to protect women from

being subjected to domestic violence and to prevent the occurrence

of domestic violence in society. The object of the Statute provides

that it is to provide for more effective protection of rights of woman

guaranteed under the Constitution of India, who are victims of

violence of any kind occurring within the family. The wide

definition of "aggrieved person", "domestic relationship" and

"respondent" in sections 2(a), (f) and (q) and other provisions

testimony that they are of wide amplitude and the cause of action

for any relief under the Act is not confined to the factors of time and

space with regard to the matrimonial relationship, but extents

beyond their limits, if it has a rational nexus with the domestic

relationship, past or present.

5. Regarding the contention that parties have voluntarily

agreed to relinquish the various benefits and claims, I am unable to

agree. The joint application for divorce contains a unilateral

undertaking by the wife that she will not claim money, ornaments or

future maintenance. There is nothing to show that this was in

consideration for a mutually satisfactory settlement of all the

existing claims. In such circumstances, it can only be treated as

Crl.M.C.2990/16
4

consent obtained from the wife either by coercion or obtained by

compulsion of circumstances or as a condition imposed on a

desperate wife by the husband for consenting to a divorce. Of

course, parties are free to enter into a satisfactory settlement of all

their claims, on mutually agreed terms. However, contracting out

of the statutory rights conferred on the wife under section 19 to 22

of D.V Act is against public policy and hence cannot be recognized,

unless it is proved that there was a mutually satisfactory settlement

of all claims. This view is fortified by the settled legal position

under section 3 of the Protection of Women from Domestic Violence

Act, 2005 and under section 125 of Code of Criminal Procedure [see

Sadasivan Pillai v. Vijayalakshmi (1987 Crl.L.J.765], Ranjit

kaur v. Pavittar Singh (1992 Cri.L.J.262) and Rajesh R. Nair

v. Meera Babu (2013(2) ILR (ker) 9).

6. The second contention was resisted by the respondents

on the premise that the present status of the applicant in a

proceeding under the D.V Act is irrelevant. The respondents herein

relied on the decision in Priya v. Shibu (2008(3) KLT 1) to

buttress the above argument. In that, this Court considered the

question whether an application for maintenance and return of the

amount paid in cash and gold ornaments under sections 19(8) and

20 of D.V Act was maintainable at the behest of a divorced wife.

Crl.M.C.2990/16
5

The question formulated by the learned Judge was whether

applicant should continue to be in a domestic relationship with the

respondents on the date of preferring claim and whether the

persons who are related by consanguinity, marriage or any of the

relationship referred to in section 2(f) of the Act should continue to

be in that relationship as on the date of filing the petition. It was

contended that the employment of words "either live" or "who have

lived" in section 2(s) and correspondingly in section 2(a), 2(f) and

2(q), which were in present perfect continuous tense, rendered it

obligatory on the part of the applicant to be in a domestic

relationship on the date of preferring the application. Refuting the

above contention, the learned Judge held that the words "has lived"

and "have lived" are employed for the purpose of showing the past

relationship and they cannot be so construed as to mean that unless

the "domestic relationship" continues on the date of application, the

applicant will have no locus standi to move the magistrate. This

view is perfectly in consonance with the object of the Statute and is

the most logical and rational interpretation of the Statute. Same

principle is embodied in the decision of the Hon'ble Supreme Court

in Juveria Abdul Majid v. Alif Iqbal and Another (2014(2) KLD

693(SC)), though it deals with a case of spouses obtaining a decree

of divorce subsequent to the commission of domestic violence. In

Crl.M.C.2990/16
6

the light of above decisions, the relief sought by the respondents

herein under section 20 of the Act is perfectly maintainable.

7. The third limb of argument of the learned counsel for the

petitioner was that when the domestic relationship between parties

stood severed, any application of the divorced wife thereafter can

only be considered as a relief sought against a stranger and does

not fall within the ambit of a domestic violence. As mentioned

above, the scope of the Act is not confined within the limits of time

and space. Even though at blush, it may appear to be paradoxical to

argue that protection orders can be sought even after separation of

spouses, such a cause of action may not be rare, which arises

subsequent to the divorce, but relateable to the earlier matrimonial

relationship. It is not unusual that even after divorce, certain

obligations arising from past matrimonial relationship continue,

like, maintainance, custody of children, liability to pay amounts or

assets received, operation of bank accounts and personal safety of

divorced wife and children born in the wedlock. It will be illogical

and absurd to hold that the moment of divorce is granted, scope of

protection order also ceases. It cannot be confined within the

barriers of time and space. Further, the scope of section 18 which

is wide enough to take in any violence which is likely to take place

in the place of employment of aggrieved person, or if the aggrieved

Crl.M.C.2990/16
7

person is a minor, its school or any place frequented by child or

attempting to communicate with the aggrieved person by any

means, including electronic media, indicates that domestic violence

may spread outside, even beyond the four walls of the matrimonial

home. Hence, any act of violence which satisfies the definition of

section 3 of the Act and has a rational nexus to the past matrimonial

relationship, or which arises therefrom or as a sequel to that

relationship, should conceptually fall within the provisions of

Domestic Violence Act. In the above circumstance, considering the

wide scope of the Act, the object of the Act, I find reason to hold

that the ratio in Priya's case (supra) will extend to section 18 of the

D.V Act and other reliefs also. Hence, even a divorced wife is

entitled to initiate proceedings under sections 18, 19, 20, 21 and 22

of D.V Act to seek appropriate reliefs.

8. In the light of the above, the contention that the reliefs

sought before the court below is not maintainable is not legally

correct and not sustainable.

Crl.M.C fails and is accordingly dismissed.

Sd/-
SUNIL THOMAS
Judge
Sbna/
True Copy /

P A to Judge

Friday, November 18, 2016

Out-of-court Settlement in Cases of Sexual Offences Against Children Possible if No Aggravated Assault Involved, Says HC - Read Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE SUNIL THOMAS

MONDAY, THE 7TH DAY OF NOVEMBER 2016/16TH KARTHIKA, 1938

Crl.MC.No. 7251 of 2016 ()
---------------------------
CRIME NO. 834/2016 OF OTTAPALAM POLICE STATION , PALAKKAD

PETITIONER(S)/ACCUSED:
---------------------
SAJITH S.
AGED 32 YEARS, S/O.SUBHASH CHANDRAN,
KIZHAKKEKARA VEEDU, KAREKKAD,
KAVALAPPARA P.O, SHORNUR, OTTAPPALAM.

BY ADVS.SRI.P.VIJAYA BHANU (SR.)
SRI.M.REVIKRISHNAN
SRI.C.JAYAKIRAN

RESPONDENT(S)/STATE, ALLEGED VICTIM:
------------------------------------
1. STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.

2. RAVITHA (MINOR), AGED 15 YEARS
REPRESENTED BY GUARDIAN/FATHER
RAVEENDRAN, S/O.RAMAN, AGED 45 YEARS,
PALLIPPURATH HOUSE, CHERUKATTUPULAM,
VANIYAMKULAM, OTTAPALAM TALUK,
PALAKKAD DISTRICT - 679 101.

3. RAVEENDRAN, S/O.RAMAN
AGED 45 YEARS, PALLIPPURATH HOUSE,
CHERUKATTUPULAM, VANIYAMKULAM,
OTTAPALAM TALUK, PALAKKAD DISTRICT - 679 101.

4. REENA
AGED 36 YEARS, W/O.RAVEENDRAN,
PALLIPPURATH HOUSE, CHERUKATTUPULAM,
VANIYAMKULAM, OTTAPALAM TALUK,
PALAKKAD DISTRICT -679 101.

R2-4 BY ADV. SRI.VIVEK.JOY.K
BY PUBLIC PROSECUTOR:SRI E C BINEESH

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
07-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

Crl.MC.No. 7251 of 2016 ()

APPENDIX

PETITIONER(S)' EXHIBITS

ANNX.A TRUE COPY OF THE FIR ALONG WITH F.I. STATEMENT IN
CRIME NO.834/2016 OF OTTAPALAM POLICE STATION, PALAKKAD DISTRICT.

ANNX.B AFFIDAVIT SWORN TO BY THE 3RD RESPONDENT/FATHER OF
THE 2ND RESPONDENT SIGNIFYING THE FACTUM OF THE SETTLEMENT OF THE
DISPUTES WITH THE PETITIONER, FOR AND ON BEHALF OF THE 2ND
RESPONDENT, WHO IS A MINOR.

ANNX.C AFFIDAVIT SWORN TO BY THE 4TH RESPONDENT/MOTHER OF
THE 2ND RESPONDENT SIGNIFYING THE FACTUM OF THE SETTLEMENT OF THE
DISPUTES WITH THE PETITIONER, FOR AND ON BEHALF OF THE 2ND
RESPONDENT, WHO IS A MINOR.

RESPONDENT(S)' EXHIBITS:NIL

True Copy /

P A to Judge

SUNIL THOMAS, J.
=================
Crl.M.C.No.7251 of 2016
=================
Dated this the 7th day of November, 2016

ORDER

Petitioner herein is the sole accused in Crime No.834 of

2016 of Ottappalam Police Station for offences punishable under

section 354A of the Indian Penal Code and sections 7 and 8 of the

Protection of Children from Sexual Offences Act.

2. The crux of the allegation of the prosecution is that the

petitioner herein had gone to the de facto complainant to issue the

current bill, after checking up the meter reading. In the course of

the work, he touched the chest of the 15 year minor girl, who was

present there, with a malafide intention and thereby outraged her

modesty. On the basis of the complaint laid by her, crime was

registered for the above offences. Investigation is progressing.

3. Petitioner has now approached this Court stating that,

in the meanwhile, disputes between the parties have been resolved

and parents of the victim have agreed to settle the disputes.

Learned counsel for the victim, who is arrayed as the second

respondent herein, as well as her parents arrayed as respondents

3 and 4 submitted that they have no grievance now and are willing

Crl.M.C.7251/16
2

to compromise the matter. It was also stated that expressing the

above intention, the parents have executed separate affidavits.

Relying on Annexures-B and C affidavits, learned counsel

reiterated that it discloses a fair and genuine intention of the

parties. Learned Public Prosecutor also submitted that the

petitioner is not involved in any other crime and the parties have

resolved their disputes.

4. Though, the allegation includes sexual assault on a

minor woman and the provisions of POCSO have been invoked, it

does not involve an aggravated form of sexual assault. Further,

the question whether it happened accidentally or whether it was

done intentionally is a highly disputed question of fact. Having

regard to these facts, I feel that continuance of the proceedings

may not be in the interest of parties concerned. Hence, I am

inclined to invoke the jurisdiction under section 482 Cr.P.C.

In the result, Crl.M.C is allowed. Entire proceedings

arising from Crime No.834 of 2016 of Ottappalam Police Station

stand quashed.

Sd/-
SUNIL THOMAS
Judge
Sbna/7/11/16
True Copy / P A to Judge