A. Rajendran vs Krishna Mudaliar, Thilaka and Manorama

T. Jayarama Chouta, J.—This petition has been filed under Article 226 of the Constitution of India for habeas corpus to produce the Petitioner''s two year old male child to the Petitioner and to hand over the custody of the said male child to the Petitioner and to pass such appropriate orders.

In support of the said petition, the Petitioner Rajendran, a Sub Inspector of Police has filed an affidavit in which he has stated that he married one Dhanalakshmi and there has been some misunderstanding between his family and his in-laws and in the month of February 1993, he sent his wife to her parents for delivery, as at that time he was Sub Inspector of Police at Soolagri Police Station Dharmapuri District.

He has further stated that he received a communication on 16.3.1993 that his wife gave birth to a female child at Sumathi Nursing Home, Anna Nagar, Madurai and he took leave and went to Madurai. On seeing the child, he had a doubt since he felt that the child looked two or three days older than a child which was born on 16.3.1993. In spite of he having doubt nobody was able to clear the said doubt and his wife did not come to medical check up and his in-laws refused to send his wife with him. He made great attempts and came to know that in or about the same period a male child was also born in the same Nursing Home, and the child was in the custody of Respondents 1 and 2 who are the husband and wife and the second Respondent, in or about the same time i.e., on 16.3.1993 gave birth to a child in the same Nursing Home and the said female child has been exchanged with the male child delivered by his wife. He has further stated that the deliberate exchange of the babies have taken place at the instance of his in-laws who were bent upon to take revenge on him.

The Petitioner further swore that on the eve of Deepavali 1993, he visited Respondents 1 and 2 to confront them with the truth and recover his male child which was in their custody, and Respondents 1 and 2 fairly uttered falsehood by stating that they did not have any male child. After IS days and again on 16.3.1994 he visited Respondents 1 and 2 and since he did not get proper answer from them, again on 24.10.1994, he along with one Rama Subbu and an Advocate by name Mr. Abdul Hameed went to the place of die said Respondents and tried to Sort out the matter by striking a compromise. Though initially the first Respondent was inclined, subsequently he was adamant holding that they are the parents of male child. The Petitioner also produced a birth certificate of the child of the first Respondent which refers to a female child.

The affidavit further says that all along he was trying his level best with the elders and common people to take his child from the custody of the Respondents 1 and 2 and his complaints to the local police station did not bring fruitful result and hence, having no other option except to invoke the jurisdiction of this Court under Article 226 of the Constitution, he has filed this Habeas Corpus Petition. In the affidavit, he has further stated that for the conspiracy of exchanging his male child to the hands of the Respondents 1 and 2, the third Respondent Dr. Manorama actively assisted the other Respondents. Dr. Manorama is very much aware and was partially instrumental for the conduct of illegal exchange of children and hence, she has been imp leaded as a party to the habeas corpus petition. The Petitioner also produced a true copy of the statement of one Krishna Pandian, the authorship and the genuineness of the said statement has been disputed by the Respondents.

After issue of notice, all the three Respondents appeared through their advocates and filed counter-affidavits.

The first Respondent has filed counter-affidavit on behalf of himself and his wife, the second Respondent. In the said counter he has stated that the petition is not maintainable in law or on facts and the same is nothing but abuse of process of Court. He submits that the male child allegedly born to the Petitioner''s wife was never in their custody and the averment that his wife, the second Respondent gave birth to a child on or about 16.3.1993 is false. In fact, the second Respondent gave birth to a female child on 8.3.1993 itself and both the child and the mother were discharged on 13.3.1993. A certificate of his daughter''s birth issued by the Corporation of Madurai on 18.4.1994 would clearly prove this. He denied the allegation that at the instance of the Petitioner''s in-laws, the male child born to the Petitioner''s wife was exchanged to the female child born to the second Respondent is totally false and made with an ulterior motive. He has further submitted that the Petitioner has neither disclosed as to how he came to know that his wife gave birth to a male child nor he has produced any document in support of these allegations.

In fact, the third Respondent who is a Doctor in the hospital where the second Respondent gave birth to a child has issued a certificate dated 21.3.1994 stating that Mrs. Thilaka, the second Respondent herein was admitted in their hospital i.e., Sumathi Hospital and Institute of Super Specialties on 8.3.1993 at 1.15 A.M. and that she has delivered a live female child on 8.3.1993 at 1.14 P.M. and that the mother and the child were discharged on 13.3.1993. The third Respondent also issued a certificate stating that Mrs. Dhanalakshmi, W/o. Mr. Rajendran (Petitioner) was admitted in their hospital on 16.3.1993 at 9.00A.M. and she delivered a live female child on 16.3.1993 at 5.51 P.M. and that the mother and child were discharged on 23.3.1993. From the above certificate, it would be clear that the second Respondent and the child had been discharged even before the Petitioner''s wife was admitted. In such circumstances, it is evident that the Petitioner''s grievance is imaginary.

The first Respondent also further stated that the Petitioner has been constantly harassing him and his family members asking for a male child allegedly born to his wife and all the documentary and other evidence available with them was also shown to him in the presence of friends and well wishers, But the Petitioner has been adamant and unreasonable. Since the Petitioner is a Sub Inspector of Police he started threatening him and the members of his family at Kodaikanal. Since he apprehended that there is constant danger to their lives from the Petitioner, the first Respondent lodged complaints with the Sub Inspector of Police at Kodaikanal Police Station on 18.3.1994, 20.10.1994 and also sent a written request on 17.12.1994 to the DIG. Madurai Circle, Madurai to intervene in the matter and take immediate action against the Petitioner and the other persons involved. He has also sent telegrams to the Superintendent of Police, Anna District, Dindigul to give police protection to their family members and the illegal activity of the Petitioner has affected his entire family and they are living under constant threat.

He has denied the allegation that the two years old male child is in their possession and stated that the birth certificate mentioned earlier would clearly show that the child born to them is a female child and the case of the Petitioner that his wife had given birth to a male child and that the male child had been exchanged to the female child is nothing but a figment of his imagination and false and without any basis. On these grounds, Respondents 1 and 2 have requested this Court to dismiss the habeas corpus petition with exemplary costs.

In support of the said counter-affidavit, Respondents 1 and 2 also produced certificates issued by the hospital to show that the second Respondent has delivered a female child on 8.3.1993 at 1.14 P.M. and was discharged on 13.3.1993 with the child in good health and also a certificate issued by the same hospital to the effect that the wife of the Petitioner Mrs. Dhanalakshmi was admitted in the hospital on 16.3.1993 at 9A.M. and she delivered a live female child on 16.3.1993 at 5.51P.M. and the mother and the child were discharged on 22.3.1993 with good health. In addition to these certificates, the Respondents also filed two copies of three complaints given by the first Respondent to the Sub Inspector of Police, Kodaikanal about high handed action of the Petitioner and requesting him to take suitable action. It is clear from those complaints that the first Respondent has also shown his female child to the Petitioner. The Respondents also produced a letter addressed by one P.S. Vijayakumar, father-in-law of the first Respondent addressed to the Chief Minister of Tamil Nadu bringing to the notice of the acts committed by the Petitioner on the first Respondent and his family members and praying to protect them as their lives are in danger.

The third Respondent has also filed a counter-affidavit in which she has denied all the allegations made by the Petitioner and has stated that on seeing the child and Petitioner had doubt that the child is two or three days elder than the child which was born on 16.3.1993, and has stated that it cannot be stated even by a clinician and hence, the said allegation of the Petitioner is false. She has denied the allegation that the male child was born during the period when the wife of the Petitioner gave birth in her nursing home and the child was in the custody of Respondents 1 and 2, and the second Respondent gave birth to a child on 16.3.1993.

She has stated that as per the records maintained by the nursing home the second Respondent was admitted in her hospital on 8.3.1993, at 1.15 A.M. and she delivered a female child on the same day at 1.14P.M. and the second Respondent and the child were discharged on 13.3.1993 in good health. After three days i.e. on 16.3.1993, the Petitioner''s wife was admitted in her hospital at 9.a.m. and she delivered a female child at 5.51 P.M. on the same day and the mother and the child were discharged on 22.3.1993 in good health. She has stated that both of them delivered only female children and the allegations to the contra in the affidavit are false and misleading. She has further stated that many police officers came to her hospital and after verifying the records, they have dropped the matter. In paragraph 10 of her counter affidavit, the third Respondent has categorically denied the allegations of the Petitioner that the exchange of babies took place at the instance of in-laws of the Petitioner and the third Respondent actively assisted for the conspiracy in exchanging the male child of the Petitioner to the hands of the Respondents 1 and 2. She has stated that she is a leading medical practitioner commanding very good reputation at Madurai and the said averment in the affidavit wounded her feelings and the Petitioner had to be dealt with from the hands of this Court for the irresponsible, scurrilous allegations uttered against her. She has stated that the petition is a ex facie frivolous and she has been unnecessarily dragged on to the proceedings and hence, the Petitioner is bound and liable to pay exemplary coats.

Heard the learned Counsel appearing on behalf of the parties and perused the papers. The submission on behalf of the Petitioner is that there was a reasonable apprehension in the mind of the Petitioner that a male child was born to them which has been exchanged in the hospital of the third Respondent with the connivance of his parent in law who are in inimical terms and hence under those apprehensions he has filed this habeas corpus petition. He has further submitted that inspire of all his best efforts to find out the truth of the case he was not able to find out and failing in all his enquiries, having no other go except approaching this Court, he has filed this habeas corpus petition.

It is pertinent to mention here that even according to the affidavit filed by the Petitioner, he received an intimation communication on 16.3.1993 that his wife gave birth to a female child at Sumathi Nursing Home, Anna Nagar, Madurai. His wife who has given birth has not come forward either by filing an affidavit or petition to show that she gave birth to a male child. The birth certificate produced by the Petitioner himself in respect of the child of the 1st and 2nd Respondents pertains to a female child. Hence, there is no basis for his reasonable apprehension that the male child given birth by his wife has been exchanged with that of the female child of the second Respondent.

Learned Counsel appearing for the Respondents vehemently contended that the action of the Petitioner in filing this habeas corpus petition and dragging the Respondents to this Court is nothing but abuse of process of law. Learned Counsel has categorically stated that as per the documentary evidence and the affidavit, it is quite clear that the second Respondent was admitted to hospital on 8.3.1993 at 1.15 A.M. and she delivered a live female child on the same day at 1.14 P.M. and both mother and child were discharged on 13.3.1993. He took us through the documents produced along with the counter-affidavit of the first Respondent. He has taken us through the certificates issued by the Sumathi Nursing Home to show that the second Respondent was not present when the Petitioner''s wife gave birth to a female child in the said hospital, and there was no question of exchanging the children. In addition he has also taken us through the complaints given by the first Respondent to the Sub-Inspector of Police at Kodaikanal and the letter addressed by the father-in-law of the first Respondent to the Chief Minister wherein they have clearly mentioned what all transpired between the Petitioner and the first Respondent and the acts committed by the Petitioner on the first Respondent and the family members. In fact, it is quit clear from the allegations in the said complaints that the female child of the first Respondent has been shown to the Petitioner and in spite of that he has not kept quite and still proceeded with the further activities. Not satisfied with all of these, he has filed this Habeas Corpus Petition after nearly a period of 2 years. According to him, his wife has given birth to a male child on 16.3.1993 and now he has come forward with this petition on the allegation that the male child given birth by his wife has been exchanged with the female child of Respondents 1 and 2 with the connivance of the third Respondent. We have failed to understand how he could file such a habeas corpus petition.

After hearing the advocates on both sides and going thorough the records, we see no merit in this habeas corpus petition and we may point out our disapproval of the Act of the Petitioner in filing this petition. Being a Sub Inspector of Police who is supposed to be a model to the public and who has to maintain the law and order has taken law into his own hand and started harassing the Respondents by approaching them frequently and heartening them with dire consequences and making their lives miserable. Not satisfied with all hence he has now come with this petition after a apse of nearly 2 1/2 years. We would have approbated if the Petitioner would have listened to the device rendered to him and kept quiet without approaching this Court by filing this habeas corpus petition. He has unnecessarily, dragged the Respondents before this Court and brought down their image by attributing some kind of illegal acts without any foundation or basis. It is too much to allege that Respondents 1 and 2 have exchanged the female child with the male child of the Petitioner in nursing home when he has failed to prove that his wife has given birth to a male child. Further the documents produced in this case clearly go to show that both of then gave birth to female children. Moreover, the second Respondent was not in nursing home when the Petitioner''s wife gave birth to a female child as she has already been discharged. The Petitioner has not only caused financial loss and mental agony but-also dragged the Respondents before the courts and also brought down their image and good reputation in the eye of the public The third Respondent is a Doctor and the Petitioner by making reckless and irresponsible allegation against her lowered her good reputation.

Under these circumstances, we are compelled to award compensation to the Respondents, while dismissing this habeas corpus petition holding that it is false, frivolous and vexatious. The Petitioner should pay a sum of Rs. 5,000/- to Respondents 1 and 2 and an equal amount to the third Respondent within four (4) weeks from today, failing which the Respondents are at liberty to move this Court for redressed.

After we pronounced the order, the learned Counsel appearing for the Petitioner requested that eight weeks time may be granted for the payment of compensation, instead of four weeks. We are acceding to this request and instead of four weeks'' time for payment of the compensation, eight weeks'' time from to day (6.9.1995) is granted.