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THE KERALA HIGH COURT ENSURES THAT WIFE, CHILD, PARENTS ARE NOT NEGLECTED IN A RECENT CASE

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Case Title – Dheera N.G. & Anr. v. Simesh S. and Simesh S. v. Dheeran N.G. & Anr.

Bench – THE HONOURABLE MR.JUSTICE V.G.ARUN

Case No – RPFC NO. 30 OF 2023

Date – 5/06/2023

Facts of the Case-

  1. The revision petitioners filed MC No.183/2018 before the Family Court, Ernakulam, seeking maintenance allowance. The first petitioner (wife) requested Rs.20,000/- and the second petitioner (son) requested Rs.7,500/- as monthly maintenance.
  2. The Family Court ordered monthly maintenance at the rate of Rs.4,000/- for the first petitioner and Rs.2,000/- for the second petitioner.
  3. The revision petitioners were dissatisfied with the quantum of maintenance ordered and filed a revision petition (RP(FC) No.30/2023).
  4. The respondent filed RP(FC) No.71/2023, challenging the finding regarding his liability to pay maintenance.
  5. The first petitioner suffered from Acute Disseminated Encephalomyelitis (ADEM), which left her paralyzed from the waist down. She incurred substantial medical expenses, which were settled through crowdfunding as the respondent did not provide financial support.
  6. The respondent claimed that he was kept away from the situation by the petitioner’s family when they started receiving contributions for her treatment. He also filed an original petition seeking divorce, stating that the first petitioner’s illness rendered her unable to fulfill the duties of a wife and that continuing the marriage amounted to cruelty.

Judgement –

  1. The original petition for divorce filed by the respondent was dismissed, and the maintenance petition filed by the wife and son was allowed, ordering maintenance at the rate of Rs.4,000/- and Rs.2,000/-, respectively.
  2. The revision petitioners argued that the maintenance amount ordered was inadequate considering the first petitioner’s medical condition and the educational and other needs of the second petitioner.
  3. The court considered the objective of Section 125, which is to alleviate the suffering of destitute wives and children, and referred to relevant judgments to support the contention that the husband’s means should be taken into account.
  4. The court found that the respondent neglected and refused to maintain the petitioners and that the first petitioner and the child did not have the means to support themselves.
  5. The respondent, who worked as a head load worker/packer, claimed he did not have sufficient means to pay the claimed maintenance amount, but the court rejected this argument based on his admission of earning additional income through overtime work.
  6. The court referred to previous judgments that held an able-bodied husband has the capacity to earn enough to meet the expenses of his wife and that a husband’s claim of having no source of income does not absolve him of the duty to maintain his wife.
  7. Considering the first petitioner’s medical expenses and the second petitioner being deprived of his father’s care and affection, the court determined the maintenance amounts. It fixed the monthly maintenance allowance at Rs.8,000/- for the first petitioner and Rs.4,000/- for the second petitioner.
  8. RP(FC) No.71/2023 filed by the respondent was dismissed, and RP(FC) No.30/2023 filed by the revision petitioners was disposed of by enhancing the monthly maintenance allowance.
  9. The respondent was granted two months to pay the arrears of maintenance at the enhanced rate. If the payment is not made within the given time, the petitioners can approach the Family Court for execution of the order.

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WRITTEN BY – ANVITHA RAO

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THE KERALA HIGH COURT ALLOWS FOR THE JOINDER OF CHARGES OF OFFENCES COMMITTED BY THE SAME PERSON

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Case Title : JITHIN P V STATE OF KERALA

Bench : THE HONOURABLE MR.JUSTICE K. BABU

Case No : CRL.MC NO. 6346 OF 2022

Date : 24/05/2023

FACTS OF THE CASE –

  1. The petitioner is the accused in two separate cases: S.C.No.547 of 2021 and S.C.No.595 of 2021.
  2. In S.C.No.595 of 2021, the petitioner faces charges under Sections 450 and 376(2)(n) of IPC, Section 4 r/w Section 3(a), Section 6 r/w Section 5(l), Section 12 r/w Sections 11(iv), 11(v) and 11(vi) of the POCSO Act, Section 67-B of the Information Technology Act, 2000, and Sections 3(1)(w)(i) & 3(2)(v) of the SC/ST (POA) Act.
  3. In S.C. No. 547 of 2021, the petitioner faces charges under Section 305 of IPC and Section 3(2)(v) of the SC/ST (POA) Act.
  4. The petitioner has filed petitions seeking to quash the Final Reports in both cases and alternatively requesting that both cases be tried together.
  5. On 09.06.2021, a 17-year-old girl was found hanging in her family house. The petitioner was accused of abetting the minor girl’s suicide.
  6. The petitioner has been accused in both cases related to the sexual assault of the girl, with different charges and provisions applied.
  7. The petitioner’s counsel argues that the acts alleged in both cases constitute the same transaction and that trying them separately would cause prejudice to the accused. They rely on the case of State of Karnataka v. M. Balakrishna [1980 CRL. L.J. 1145] to support their argument.
  8. The prosecution and the counsel for the respondents argue that the alleged acts are distinct and different, and therefore, separate trials are justified.

JUDGEMENT –

  1. Section 220 of the Criminal Procedure Code (Cr.P.C.) allows for the joinder of charges of offences committed by the same person, provided they form part of the same transaction.
  2. The determination of whether acts constitute the same transaction depends on factors such as commonality of purpose or design, continuity of action, proximity of time, and unity of place.
  3. The Supreme Court has held that there cannot be a universal formula for determining the same transaction, and each case must be decided based on its specific circumstances.
  4. In the present case, the acts alleged in Crime No.114/2021 (sexual assault and rape) were committed between December 2020 and February 2021, while the acts alleged in Crime No.111/2021 (threats and harassment leading to suicide) were committed in June 2021.
  5. The acts were not proximate in time, lacked continuity, and did not demonstrate a community of purpose or design. Therefore, they do not constitute the same transaction.
  6. The accused does not have a vested right to seek joinder of charges, and the court has the discretion to try the offences separately.
  7. The petitioner’s request to quash the Final Reports or try both cases together is not supported based on the facts and principles discussed

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”


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THE KERALA HIGH COURT DEGREE IN FAVOUR OF PLAINTIFF FOR  DISHONOURED CHEQUE

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Case Title : ASHOK KUMAR V SANKARANKUTTY PILLAI

Bench : THE HONOURABLE MR. JUSTICE SATHISH NINAN 

Case no : RFA NO. 390 OF 2003 

Date of order : 6/06/2023`

FACTS OF THE CASE-

  1. The plaintiff and the first defendant were friends and employed in Saudi Arabia.
  2. In March 1995, the first defendant borrowed an amount of ₹5,50,000/- from the plaintiff, to be repaid in three months.
  3. Instead of repaying the borrowed amount, the first defendant issued a post-dated cheque dated 02.11.1996 for ₹5,50,000/- as security, to be returned when the amount is paid.
  4. The cheque was dishonoured for insufficient funds when presented for payment.
  5. The plaintiff filed a suit for the recovery of the dishonoured cheque amount.

JUDGEMENT-

  1. The trial court dismissed the suit, stating that it lacked territorial jurisdiction and that the plaintiff failed to prove the payment of ₹5,50,000/-
  2. On appeal, the court held that the trial court has territorial jurisdiction to entertain the suit since the dishonoured cheque was presented within its jurisdiction.
  3. The defendant did not raise a specific contention regarding lack of territorial jurisdiction at the earliest opportunity, as required by the Code of Civil Procedure.
  4. The court rejected the defendant’s contention that a notice of dishonour was necessary before filing the suit. According to Section 98(c) of the Negotiable Instruments Act, no notice of dishonour is necessary when the party charged cannot suffer damage for want of notice.
  5. The court also rejected the defendant’s argument that the cheque was issued only as security and could not be presented for payment. A cheque issued as security can be enforced if the payment is not made.
  6. The defendant admitted borrowing an amount from the plaintiff but disputed the quantum, claiming it was ₹50,000/- instead of ₹5,50,000/-. However, the court found that the defendant’s claim was not supported by evidence and accepted the plaintiff’s claim.
  7. The court granted a decree in favour of the plaintiff for the amount of ₹5,50,000/- with interest at the rate of 6% per annum from the date of appeal (12.11.2003) until the date of the decree, and thereafter until full realisation from the first defendant and his assets.
  8. The plaintiff was not entitled to interest during the pendency of the suit before the trial court because it was not claimed in the appeal.

Overall, the court set aside the trial court’s decision, granted a decree in favour of the plaintiff for the dishonoured cheque amount with interest, and awarded costs to the appellant throughout the case.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

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WRITTEN BY- ANVITHA RAO

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