Indian Judiciary

Outnumbering of Original Petitions in Family Courts

Anyone who has ever gone to a Family Court, will know that it is not the best place for litigation. There is no decency or ethics, neither among lawyers nor between litigants. This is mostly due to deficiencies in the legal system and unreasonable laws biased in favour of the women.

Here I am concerned with a related matter, about docket multiplication. When a couple approaches a family court for divorce and other related reliefs, there would be numerous cases filed on their behalf.

The husband would be filing for restitution of conjugal rights, custody of children etc, whereas wife usually files for divorce, maintenance, return of gold ornaments etc. Currently, all these are separate cases, having separate proceedings and docket numbers. There would be minimum three original petitions and one miscellaneous case (apart from 498A and domestic violence criminal cases), when a warring couple decides to fight it out in family court. As a topping to the chaos, all these cases are granted separate docket numbers, like OP, MC, MP etc.

I have always wondered why a particular couple is not given a single docket number, so that it is easy for the lawyers and registry to handle their cases. I know, all these cases would not originate all at once, but during different periods of time. But still, if a couple is given one main docket number, and is allowed to file interlocutory applications for maintenance, custody of children etc, then it is more easy for everyone to handle the case file.

Anyhow, at the end, joint trial of all the connected cases would be ordered by the Family Court. So why cant these separate original petitions, of a single family, be consolidated into one? Postings, personal appearance, counselling etc become easy that way.

One original petition intimating arise of the matrimonial dispute, and everything else under it as interlocutory applications. It would be a civilised way of conducting litigation in an otherwise adverse environment.

No water for Ducks – Practically and Legally!

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One of my clients who is engaged in rearing of duck, wanted to know the various licenses he should have, to conduct his duck farm, legally. He had none at present. But, during the dawn of Goods and Service Tax, he wanted to know the details of other licenses required to conduct duck farming .

In Kerala, duck farming is regulated under the Kerala Panchayat Raj (Licensing of Livestock Farms) Rules, 2012. According to the Rules, one can rear 15 poultry birds in one cent of land. In addition to that, based on the number of birds reared, there should be Fertilizer Pits (വളക്കുഴി), and burial pits (if there are more than 5000 birds), for the farm. The license is to be issued by the Secretary of the concerned Grama Panchayat. The certificates from the Pollution Control Board and District Medical Officer, are necessary, though it can be exempted by the Secretary, if it is so felt by him, on basis of location of the farm.

However, there is a catch to all these. The farm cannot be operated in a paddy land. This is because, according to Kerala Conservation of Paddy land and Wetland Act, 2008, the Panchayat is prohibited from issuing any license in any property classified as Paddy Land. My client was operating his duck farm in a paddy land. Although his land is only partially reclaimed, the entire land is included in the data bank as paddy land. So he cannot get any license from the Panchayat.

This is an anomaly in the law as ducks are traditionally reared in paddy fields.  Although I suggested to my client to file a writ petition, to cure the anomaly, he declined to proceed with a case. He rather preferred to do his business under the radar of law, having done so, peacefully, for the last several years. When I pressed him for the real reason for his hesitation, the answer astonished me.

Conventionally, although ducks require amble amount of puddled water for growth; in poultry farms, they are reared in cages, without taking them to water. My client has vast extent of wetland but none of his ducks have the fortune to swim in it. So according to my client, if a case is filed to cure the anomaly in law, it may backfire, questioning his very method of duck farming.

One thing is very clear. In Kerala, ducks and farmers are in a state of Catch 22.

If one rears ducks in paddy fields, then he will not get license, and it is rather illegal; and if he rears ducks in a dry land, then ducks will be in cages deprived of their natural environment and growth. Of course, ducks can be reared in household ponds, but that is never done in large scale.

In short, there no water for ducks, practically and legally. In other words, law prevents organic farming of ducks in Kerala.

The N-th procedure to correct Data Bank

I can’t really remember all those methods that were formulated to correct the data bank under the Kerala Conservation of Paddy Land and Wetland Act, 2008. There have been numerous. All those procedures were either replaced or repealed, before any application could reach a logical conclusion.

If I remember correctly, first it was the Thasildar under the Kerala Land Tax Act who was empowered to correct the Basic Tax Register (and in course the data bank), if it was found that the land in reality is not a Paddy Land. Later, his power was curtailed, and the Kerala High Court assumed this role in its original jurisdiction. But when number of cases that are filed got out of control, the Kerala High Court decided to relegate the function to the Local Level Monitoring Committee or the Revenue Divisional Officer, depending on the entry in the data bank. Thereafter, in the year 2015, the UDF Government brought in the controversial Section 3A for correction of data bank by the District Collector. But again, this section was repealed after the Kerala High Court warned of it being struck down as unconstitutional.

Sometime in the year 2016, somebody informed the Kerala High Court that there is a Center for Remote Sensing at Thiruvananthapuaram, which has taken satellite pictures of all of Kerala, and it could reveal how the land was lying as on the year 2008. So now, the Kerala High Court has again assumed the responsibility of correcting the data bank, after calling for report from this “Kerala State Remote Sensing and Environment Centre, Thiruvananthpuaram” through the Agricultural Officer, who is the convener of the Local Level Monitoring Committee. This is the procedure in currently in vogue for correcting the data bank, but now it is learned that a new notification has come into effect.

I haven’t seen the official notification, but the newspaper report is enclosed here under for reference. According to that report, one has to go directly to the Local Level Monitoring Committee, for correction of mistakes in the data bank, within 90days from 1st June 2017. The time limit of 90days is prescribed only for the Kerala High Court to strike it down.

For me, one thing is very clear. The Kerala Conservation of Paddy land and Wetland Act, 2008, is an unruly gal, wandering here and there without any resolve, and yet to enter her teenage. When she is a teenager, I bet, all including the Kerala Government, Environmental Activists and Kerala High Court would vie to tame her, and get her attention, with their own pieces of advice.

So, according to me, it is better to wait and watch, and see how this girl grows up into a woman, instead of rushing in for her immediate attention.

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PS: The amendment GO (P) No. 34/2017/Revenue dated 30/5/2017 (SRO 301/2017) is embedded hereunder

Candlelight Justice

This was the state of affairs in Wakf Tribunal, Ernakulam, today morning (on 26.5.2017). No electricity, no ventilation light. The judge was given a candle, to see minimum. The lawyers were given their colonial gown. Everyone had super fun, courtesy the unforgiving summer.

Vacation Court’s inherent infirmity – “What is the urgency?”

Today I moved a civil revision petition against order of a trial court holding that a suit for compensation is maintainable and the parties should suffer trial. The revision petition was moved before the vacation bench of the Kerala High Court. In my initial evaluation of the case, it should have received the interim order staying further proceedings in court below, without much ado. However, the vacation judge decided to ask the most difficult and tricky question – “What is the urgency? Why cant it be heard on the reopening date?”

Well, I wasn’t prepared for such a question, to be honest. I was hoping for questions on merits of the case, why the suit should not go to trial or what is wrong with the impugned order of the court below.

I fumbled on this query of the learned vacation judge. I said that since the suit is listed for trial, it is in the best interest of parties that it is stayed beforehand rather than keeping the parties guessing till the 11th hour. Either way, considering my sad face and loss for answers, the compassionate judge granted me the interim order as prayed for.

On retrospection, I believe, I didnt say the truth about the urgency in moving the vacation bench. Its purely my financial urgency. The urgency is not for the client or for the case, but for me and my purse alone.

It is an accepted fact that summer vacations are drought season for all lawyers. It is to tide over the said financial crisis that I moved the vacation bench. The learned lordships with so vast experience should know it better than any of us. Still they ask this tricky question, “What is the urgency”, as if they don’t know the real answer. Time for judicial reforms of (at least) vacation courts, I guess.

Unlimited pecuniary jurisdiction of Munisff’s Court

The pecuniary jurisdiction of Munsiff’s Courts in Kerala is capped at Rs. 20Lakhs. However, in the matter of succession certificate under Section 370 of India Succession Act, 1925, the Munsiff’s Court has unlimited pecuniary jurisdiction. This rare notification issued by the Kerala Government, investing powers of the District Court upon the Munisffs Court, is attached hereunder. IMG_20150702_133546

The First Sports Magistrate of Kerala!

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The Judicial First Class Magistrate Court, Kakkanad, Ernakulam is functioning underneath an Open Sports Stadium 🏇🚴.. May be it is to enable the Magistrate to award sentences like two laps around the turf, instead of the usual boring sentences like standing till the raising of the court 🙂 :mrgreen:! #Judiciary #Court #Sports #Kerala

PS: For those who are in search of this newly established Court House, it is situated 100meters beyond the Thrikkakara Police Station, on the same road where Thrikkakara Sub-Registry Office and Red-Cross situate.