Muslim divorcee files writ petition in Kerala High Court challenging direction of passport authorities to produce divorce decree; claims 'talaq' is a valid form of divorce

A Muslim divorcee has approached the Kerala High Court challenging the insistence of the passport authorities for production of divorce decree to prove her claim in her passport application that she is a divorcee.

  

The petitioner, Nehmath Kunju Mohamed of Mattanchery has sought a declaration of law that divorce by her husband by pronouncing 'talaq' should be accepted as legally valid even without the necessity of a divorce decree. 

The petitioner contends that 'Talaq' is a permitted and recognized form of dissolution of marriage in Islam and Muslims are entitled to dissolve their marriages by 'talaq' or mutual consent without approaching any court or obtaining any formal decree or order from a court of law. Therefore, the demand of passport authorities to produce a formal divorce order is unwarranted, illegal, improper, and arbitrary, says the petitioner. 

It is alleged by the petitioner that the stance of the passport authorities is against the decision of the Kerala High Court reported in Shemi P Ali v. State of Kerala [2009 (3) KLT 167]

In Shemi P Ali v. State of Kerala (supra), the High Court of Kerala had declared the legal position thus : "Authentication of divorce by competent court is one of the methods of proving a divorce or even the existence of a re-marriage. But it is not the only method. Divorce resultant upon a 'talak' pronounced by her husband is a mode of divorce that is accepted in the Muslim Community. An affirmation of the state of affairs by a sworn affidavit in the form 'Annexure A' would suffice going by Clause 7 of Ext. R1(a) (Passport Information Booklet)." 

The petition filed through Adv: Muhamed Shemeem is expected to come up for admission before the High Court on Tuesday.

 ____________

Editor's note: The decision reported in Shemi P Ali v. State of Kerala (supra) has been followed in some other decisions of the Kerala High Cout, including in K.A. Thansi v. Regional PassportOfficer and Sajila v. Regional Passport Officer

High Court of Kerala cautions public spirited persons from approaching the Court with piecemeal information and making unsubstantiated allegations against government officials as it disposes PIL against ‘Sobha Developers’ alleging conversion of land in violation of law in connivance with Government officials

Disposing of a Public Interest Litigation preferred by Mrs. Vidya Sangeeth, Member of the Thrissur District Panchayat seeking a direction to the official respondents (State of Kerala) to stop all conversion/filling up of paddy land forming part of Puzhakkal Padam, Kuttur Village in Thrissur Taluk and to stay all the construction activities conducted by real estate major Sobha Developers among others, to direct the Kolazhi Village Panchayat to cancel all permits granted to the realtors for constructing buildings and  further to direct an enquiry by the Director of the Vigilance and Anti-Corruption Bureau into the corrupt and illegal activities in the matter of filling up of paddy land, a Division Bench of the High Court has in a recent judgment, cautioned public spirited persons from approaching the Court with piecemeal information. 

 

The High Court of Kerala has cautioned against making unsubstantiated allegations against the officers of Government

The petitioner averred in her petition that about 19 acres of paddy land has been acquired in the name of three private companies (respondents 7 to 9). Against the same, certain neighbouring owners of paddy land had submitted a complaint as Ext. P1 on 15.5.2014 against the conversion of the paddy land. The petitioner submitted that on the basis of the aforesaid complaint, the Village Officer issued stop memos to respondents 7 and 8 real estate developers. However, the petitioner alleged that no stop memo was issued to the 9^th respondent company even as filling activities were being mainly done by the said company.

This action of the revenue authorities, the petitioner had submitted, was a deliberate act to assist the 9^th respondent in filling up the paddy land. The petitioner also made a specific allegation against the 10^th respondent District Collector Smt. M.S. Jaya, who, according to her was assisting the illegal filling up of paddy land in the said area by the 9^th respondent company. According to her, despite the stop memo issued to respondents 7 and 8 companies, reclamation was being continuously done, which will affect the stability of the environment and water resources of the locality.

According to the petitioner, a representation was submitted by her before the District Collector, but despite the said representation also, no action was being taken by the District Collector and she is responsible for the alleged illegal acts and is also preventing other officers in taking appropriate action in time.

The official respondents filed a counter affidavit contending that the complaint preferred had been acted upon by the District Collector, and after hearing respondents 7 to 9, an order has been passed by the District Collector on 18.8.2014 as per which respondents 7 to 9 were directed to restore the land in question to its original position as paddy land since conversion was made recently and in violation of the provisions of Kerala Paddyland and Wetland Conservation Act, 2008. It was also stated by the official respondents that stop memo was also issued to the 9^th respondent on 10.6.2014 itself.

The High Court found that the petitioner feigned ignorance about any stop memo being issued to the 9^th respondent as the writ petition was filed on 23.7.2014, even as the stop memo had been issued to the 9^th respondent realtor before the filing of the writ petition on 10.6.2014. The Court said that even at the time when the writ petition was filed, appropriate action had been taken by the District Collector and the revenue authorities in this regard.

The Court held that “as far as the claim of the petitioner is concerned, it is evident from the materials on record that appropriate steps had been taken by the District Collector based on Ext. P1 complaint and therefore there was no reason to seek the direction as sought for in the public interest litigation.”

The Court further said that the petitioner had made certain allegations against the present District Collector of Thrissur and the present Chief Secretary of the State. “Perusal of the counter affidavit as well as the order passed by the District Collector clearly indicates that such allegations were totally unwarranted and baseless. If the District Collector had not taken any action pursuant to Ext. P1, there was some justification to say that the District Collector failed to take any action, whereas the District Collector had directed issuance of stop memos…Being a Member of the District Panchayat, the petitioner ought to have obtained such vital information before filing the writ petition. The Supreme Court has, in ever so many decisions, deprecated the practice of public spirited persons in approaching the court with piecemeal information. This is also a similar instance where available materials were not collected and the pending proceedings has not been brought to the notice of this Court. As a Member of the Panchayat, the petitioner could have as well obtained necessary information from the office of the District Collector regarding the action taken pursuant to Ext. P1. No such attempt is seen made and she has rushed to this Court.”

The Division Bench further found that the imputations against the District Collector of helping the illegal activities of the real estate developers were baseless. The Division Bench comprising of Ag. Chief Justice, Mr. Ashok Bhushan and Justice A.M. Shaffique said “Public men should be more careful while making allegations against officers unless they have sufficient materials to substantiate the same. That apart, there are appropriate forums to give complaint against corrupt officials… there is no reason to make unsubstantiated allegations against the officers of Government. The allegations about corrupt practice should be borne out by records and person making allegations should be in a position to substantiate the same.” 

The Court declined to pass any further orders in the matter having regard to the fact that the cause projected had received the attention of the authorities under the Act and appropriate action has been taken in the matter in accordance with the provisions of the Act.

Missing daughter : Muslim father files habeas corpus petition in High Court of Kerala alleging conversion of his daughter under VHP's "Ghar Wapsi" campaign

A muslim father has filed a habeas corpus petition before the Kerala High Court, alleging that his 21-year-old daughter was converted to Hinduism as part of the 'Ghar Wapsi' campaign conducted by Vishva Hindu Parishad (VHP) at a seaside hamlet in Alappuzha called Pallana. 

  

 

The petition was filed by 45-year-old Noushad Aboobacker of Pallana, who is a fish vendor, against Sunil Gangadharan of Pallana, his father Gangadharan alias Thampi, Sunil's brother Anil Kumar, and Vishnu Purushan, who hails from the same locality.

The relevant averment in the habeas corpus petition reads thus: "Respondents 5 to 8 are residing in the same locality and they are the active workers of Viswa Hindu Parishad. It is most respectfully submitted that in connection with 'Ghar Vaapasi' campaign organized by the said organization, several persons from different communities have been converted to Hinduism. The grievance of the petitioner is that the petitioner's daughter has also become a prey to the above said movement initiated by the above mentioned organization. The 5^th respondent, Sunil, under the guise of the love affair, managed to have a close relation with the petitioner's daughter (name withheld to protect identity), who is aged 21 years. Though it was objected by the petitioner and other family members, the 5^th respondent along with respondents 6,7, and 8 openly declared that he will marry the daughter of the petitioner and will convert her to Hinduism as he desires."

The father alleges in the habeas corpus petition that the petitioner's daughter was found missing from her home from January 12 onwards and a search by the petitioner and his relatives and neighbours proved unsuccessful as they could not find her.

The petitioner has alleged that he suspects that his daughter is under illegal detention at the instance of Sunil against her will. Though the matter was informed to police, no action was taken, the petition said.

The petition is expected to come up for admission before a Division Bench of the High Court of Kerala on Friday.

PIL filed in High Court of Kerala challenging the constitutionality of the National Judicial Appointments Commission Act

A public interest litigation (PIL) has been filed in the High Court of Kerala, challenging the constitutionality of the National Judicial Appointments Commission Act of 2014 (NJAC Act, for short) that seeks to put an end to the collegium system of appointment of judges. 

  

In the Public Interest Litigation filed by Adv: Basil Attipetty, the petitioner has averred that the NJAC Act infringes on the fundamental right of citizens to have an independent judiciary that is free from the clutches and control of the executive and legislature. 

Further, the petitioner contends that the NJAC Act is in violation of Article 50 of the Constitution, which lays down that the state should take steps to separate the judiciary from the executive. Constitutional provisions regarding appointment of judges of the higher judiciary cannot be amended by Parliament as that would go against the basic structure of the Constitution. Parliament has only a mandate for five years whereas the Constitution with the basic features was framed by the Constituent Assembly, the petition said.

Parliament has no authority to amend, alter, or modify the Constitution to destroy its basic structure by introducing the NJAC Act. The Constitution framed by the Constituent Assembly cannot be amended by the present Parliament, it is contended in the petition.

The petitioner further contends that Parliament and executive cannot frame an enactment to circumvent the judgments of the Supreme Court as the law declared by the apex Court is the law of the land and becomes part of the Constitution.

The petitioner has sought for a declaration that the NJAC Act is unconstitutional and null and void. The PIL is expected  to come up for admission before the Division Bench headed by Chief Justice Ashok Bhushan on Friday.