S. Sivakumar vs Jayaraman and Another

Arunachalam, J.—Petitioner Sivakumar, preferred this petition on 30th June, 1995 pleading for issue of a habeas, for production of Padmini,

daughter of first Respondent Jayaraman, who, according to him, was kept in illegal custody, by the first Respondent.

The further prayer is for setting at liberty, the detenu, on such production. In support of his prayer, the Petitioner has sworn to an affidavit which

contains the following details:

According to the Petitioner, on 21.3.1995 he married Padmini according to Seerthirutha Form, in the presence of his friends and relations. He had

known Padmini for the last two or three years, since she was his neighbors. Both of them were friendly and the intimacy between them got

strengthened. Both of them, then decided to get married in accordance with Hindu customs. Petitioner was able to convince his mother that she

should approach the parents of the girl, to seek Padmini in marriage. Accordingly, his mother along with other relations met the first Respondent,

but he would not accede to the request on the ground of difference in caste. Even Padmini was not able to convince her father. First Respondent

attempted to separate both of them. Petitioner would have it, that both of them felt that they had no option other than getting married and that was

how they became husband and wife on 21.3.1995 in consequence of a Seerthirutha marriage performed before a small gathering. On the same

evening, after performance of matrimony, Padmini had given an undertaking in writing, before a Notary Public, at his office. The affidavit would

further read that heeding to the advice of friends, both of them chose to return to their homes waiting for an opportune moment to have the

problems settled and thereafter have a regular marriage performed. The further averment in the affidavit is that the first Respondent, on becoming

aware of the Seerthirutha marriage as well as the declaration made by his daughter before the Notary Public, had taken to violence and

commenced to beat his (Petitioner''s) wife, who fell down unconscious. Padmini was even denied medical attention and the Petitioner complained

to the local police, which was of no avail. Meanwhile, first Respondent removed Padmini to a remote and secluded place in Chingleput District.

Her whereabouts were not known to the Petitioner till the date of filing of the impugned habeas corpus petition. Petitioner has expressed his

apprehension, that the first Respondent may even get rid of his daughter, Alleging that his wife was in illegal custody, he has pleaded for issue of a

habeas, underlining the fact, that his wife aged 19 years and he aged about 26 years, were majors and there was no impediment whatsoever for

their getting married. In the affidavit, he has further categorically stated, that no one can dispute the said marriage. He had chosen to enclose along

with the affidavit, a photograph of his wife and the undertaking given by her before a Notary.

On 3.7.1995, this habeas corpus petition was taken on file by this Court and notice was ordered to the Respondents. After an adjournment in

between, on 20.7.1995 detenu Padmini was produced before us by the first Respondent. On the same day, first Respondent as well as Padmini,

chose to swear to two different affidavits, which were handed over directly in court. First Respondent, has stated in his affidavit, that his daughter

Padmini had never married the Petitioner and it was false to state that the Petitioner was known to his daughter for the last two or three years.

According to him, he was previously residing at Mugapair and shifted his residence to Tondiarpet area, only during May, 1994. Hence the claim of

the Petitioner that he had known his daughter for the last two or three years was utter falsehood. He dubbed as false, the statement of the

Petitioner that he and his daughter were in friendly terms and liked each other. First Respondent would have it, that the Petitioner was living in the

house opposite to him and was frequently asking his daughter to give her consent for his one sided love. This proposal was vehemently refused by

his daughter. On such refusal, on several occasions, the Petitioner had threatened to forcibly abduct his daughter and spoil her reputation. The

affidavit of the first Respondent further discloses, that the Petitioner had chosen to file the present habeas corpus petition only for the purpose of

spoiling the image and reputation not only of his daughter, but the entire family. He has specifically stated in his affidavit, that his daughter had never

signed any undertaking before any Notary Public. He denied having inflicted cruelty on his daughter, as well as having denied her, medical

attention. His daughter was happily living with him and the whole case trotted out by the Petitioner was false and fabricated. He has further added,

that even after receipt of notice, from this Court for production of his daughter, the Petitioner indulged in threatening him and his family members,

that the detenu must agree, of having married him, for otherwise the entire family, may have to face dire consequences.

In her affidavit, detenu Padmini has stated, that she never married the Petitioner on 21.3.1995 or any other point of time, in any manner as

alleged by the Petitioner. The allegation, according to her, is totally false and fabricated. She has confirmed the statement of her father, that the

Petitioner, who was living in the opposite house, had made frequent attempts to obtain her consent for his one sided love, which she virtually

refused and on such refusal, Petitioner threatened her and her family members on several occasions, and that any cost, he would abduct her and

spoil here reputation and that of her family. She is equally categorical, that she never executed any undertaking before a Notary Public at any point

of time. According to her affidavit, she was happily living with her parents, who had never treated here cruelly nor had refused to provide medical

treatment to her, at any point of time. She had not taken any photograph with the Petitioner. She has expressed in her affidavit, her desire to live

with her parents.

On production of the detenu, we questioned her on 20.7.1995, on the basis of the averments made by the Petitioner, in his affidavit. She

reiterated the contents of her counter affidavit and was certain that no marriage ever took place between her and the Petitioner, much less on the

presence of friends and relations of the Petitioner. When we questioned the Petitioner he was equally certain that he had married the Petitioner as

clearly averred by him in his affidavit. Petitioner, through his counsel, to substantiate his case, produced the original declaration allegedly signed by

her, before Notary K. Balagopal as well as a chit allegedly received by him, from the detenu. A mere perusal, of the declaration allegedly made by

Padmini, before the Notary Public, denotes, that she had stayed with the Petitioner for more than a week thereafter when both of them lived as

husband and wife at his place, and accordingly the marriage was consummated. This statement in the declaration must obviously be false, since the

declaration was sworn to on 21 March, 1995, the date of alleged marriage, and her having lived thereafter for a week could not have formed part

of this declaration. The contents of this declaration are also contrary to the contents of the affidavit sworn to by the Petitioner in support of his

habeas corpus petition, wherein he has stated, that after matrimony, on the advice of friends, both of them were at their respective homes, waiting

for an opportunity, to have the problem sorted out. One other important fact stated in the affidavit cannot be easily overlooked. The said averment

reads as follows:

...and also to get a regular marriage to take place.

If a marriage had taken place in Seerthirutha form in accordance with law, the question of another regular marriage prima facie cannot arise. This is

one more aspect, which made us doubt about the Petitioner having entered into matrimony on 21.3.1995 as alleged, more so when the first

Respondent and Padmini have categorically placed in writing before us, that no such marriage had ever taken place and the Petitioner was virtually

engaging himself in blackmailing operations to somehow or other have his one sided love approbated.

We looked with care, at the signatures of the detenue affixed in her affidavit before us as well as her signatures in the declaration before the

Notary Public as well the slip produced before us by Petitioner''s counsel allegedly containing her signature. Even to the naked eye there were

visible and clinching variations between the signatures of Padmini admitted by her and disputed by her. We directed Padmini to sign before us in a

white piece of paper thrice. Her admitted signatures are those found in her affidavit presented before us and the signatures affixed by her in open

court. The disputed signatures are those found in the declaration before the Notary and the one in the chit produced by Petitioner''s counsel.

On noticing such discrepancy, we specifically questioned die Petitioner to speak the truth, as to whether Padmini had ever affixed her signature

at all before the Notary Public, in the alleged declaration or in the chit produced by Petitioner''s Counsel. We also pointed out, that prima facie

there are vital variations in these two sets of signatures. After perusing the documents, he asserted that the signatures of Padmini found in the

documents produced by him were made by her, in his presence. We also satisfied ourselves, by questioning Padmini, that she had not affixed those

signatures. In that background, we deemed it necessary to forward the admitted and disputed signatures, to the Handwriting Expert, State

Forensic Department, for his opinion on comparison of those sets of signatures. The Handwriting Expert has offered his opinion, through his report

dated 1.8.1995. The admitted signatures were stamped and marked as ''S-1 to S-5'', while the disputed signatures were stamped and marked as

''Q-1 to Q-3'', by him, His opinion reads as follows:

The person who wrote the red enclosed signatures stamped and marked S-1 to S-5 did not write the red enclosed signatures similarly stamped

and marked Q-1 to Q-3.

He had enclosed along with his opinion, the reasoning sheet. The reasons stated by him, read as hereunder:

The standard signatures have been freely written and agree in the handwriting characteristics on intense comparison. The questioned signatures

have been partially initiated, exhibit inherent signs of forgery like defective line quality, hesitation, concealed pen lifts etc., and they differ

significantly from the standard in the handwriting characteristics. The characteristic differences include among other things the following:

The alignment of the letters in the signatures ""J. Padmini.

The manner of connecting the letters ''a'', ''d'', ''m'', i, ''n'' and i;.

The manner of terminating the letters ''J'', ''p'', i.

The relative sizing between the letters ''J'', ''P'' and ''d'', ''a'' and i.

The location and manner of making ''J'' crossing.

On the detailed designs, such as the beginning and formation of loops and curves in the letters ''J'', ''P'', a d, m. Our prima facie impression, that

Padmini, in all probability, had not affixed her signatures in the alleged declaration before the Notary Public, as well as in the chit, stood confirmed

by the opinion of the Handwriting Expert. We are quite aware of the legal position, that the opinion of the Handwriting Expert is not always

conclusive, but we have taken the opinion of the Handwriting Expert, only to lend assurance to the opinion we had formed, on the basis of our

scrutiny, of the admitted and disputed signatures. As we have already stated, the scrutiny of these signatures, had to be undertaken, in view of the

violent contradictions between the declaration and the contents of the affidavit of the Petitioner as well as the impossibility of that part of the

statement having been made in the declaration dated 21.3.1995, that she had lived with the Petitioner for a week, thereby meaning that they had

lived together till about 28.3.1995. Such living could not have formed part of the document executed on 21.3.1995. It is therefore apparent, that

the declaration produced by the Petitioner cannot be true and apparently, with an ulterior motive, Petitioner had fabricated the said document.

It is rather unfortunate, that even after the documents were sent for comparison, to the Handwriting Expert, the Petitioner had again attempted to

create pin-pricks to the first Respondent and the members of his family. An additional affidavit was presented before us on 16.8.1995 by the first

Respondent, wherein he has stated that on 31.7.1995, Petitioner along with ten other anti-social elements threatened and assaulted him and Ethiraj,

his son, while they were proceeding to a hotel. It was admitted by the Petitioner, that on a complaint given by the first Respondent to H-5 police,

he was arrested and produced before the concerned Magistrate on the next day, before whom he pleaded guilty and paid the sentence of fine

imposed on him. Though the Petitioner stated that the case was false, he had no answer as to why he did not state so before the trial Magistrate

and exposed the falsity of the complaint by pleading not guilty and insisting on conduct of a trial.

On these conspectus offsets, we were initially of the opinion, that this Court must take action, for prosecuting the Petitioner, for having

fabricated false evidence and used the same before us. At this stage, Mr. Ashok Kumar, learned Counsel appearing on behalf of the Petitioner,

made a fervent plea, not to direct initiation of a prosecution, stating that the Petitioner is an erstwhile student of Sir Theagaraja College as well the

Secretary of the Union. He is just aged 26 years. He has no antecedents and if he were to be prosecuted, his whole future would be marred. He

pleaded for sympathy, while assuring that an unconditional apology will be made in writing by the Petitioner, who will not henceforth interfere in any

manner with the peaceful living of the first Respondent and his family members, inclusive of the detenu. We are satisfied, that totally exonerating the

Petitioner on the. ground of sympathy, would be totally misplaced, more so, when the first Respondent''s daughter has been put to shame and

mental anguish by initiation of this habeas corpus petition by the Petitioner, based on false record. Not only the first Respondent, but also the

detenu has been put to mental anguish, and untold suffering. They have also been forced to present themselves before this Court, on a few

occasions, apart from engaging a counsel to put-forth their version. By the Act of the Petitioner, dragging the detenu to this Court, alleging that he

had married her, which now appears to be fake, we are able to comprehend, the impact, that this proceeding will have, on the smooth life of the

detenu not only at the present stage, but in future as well. The society, at least-a part of it, will be prepared to believe any rumour and make

mountains out of molehills. The first Respondent and the detenu, will have to put up with all sorts of enquiries, which are bound to be made, due to

initiation of this habeas corpus petition, by the Petitioner. The amount of agony, the members of the family of the detenu may have to undergo, will

be totally immeasurable. We are of the opinion that the Petitioner should make amends at least to a limited extent, though that may not be total

panacea for the ill, so mat he and persons placed similarly like him, shall not indulge in anti-social acts, and bring disrespect not only to the families

of the detenues, but their families as well. Since the-Petitioner has lost his father, obviously, there has been no control and his mother probably is

not able to manage her own son.

To add insult to all that we had stated, it is rather unfortunate, that a Tamil Daily ''Dinakafan'' had chosen to publish a boxed news item, in its

edition dated 12.8.1995, which reads that this Court had already imposed a fine of Rs. 10,000/- on the Petitioner, in default of payment of which,

this Court had directed him to undergo two months incarceration. Such a judgment was delivered, according to the news item, by one of us,

Justice Arunachalam. Needless to state that the habeas corpus petition was then pending and no orders had been pronounced. Further, the matter

was pending before a Division Bench and not before a single Judge. The entire news item published, prominently, was total distortion of facts. This

news item was brought to our notice by Mr. Ashok Kumar, learned Counsel representing the Petitioner. When we questioned the first Respondent

on this news report, he stated that he was totally unaware of the said publication. After further interrogation, we were certain, that he had no

connection whatever with the publication of the said news. We deemed it necessary to direct the learned Public Prosecutor to find out from the

said daily, the source for such publication. Prima facie, we were satisfied, that ''Dhinakaran'' Tamil Daily had committed contempt of court. We did

not deem it necessary to issue a show cause notice at that stage, for we felt, that on information that was likely to be furnished by the learned

Public Prosecutor, after contacting the said Tamil Daily, we will have still time enough to decide the need or otherwise of issuing a show cause

notice, for contempt.

To day N.B. Sethuraman, Reporter, ""Dhinakaran"" Tamil Daily, who was assigned to report about court matters on 9.8.1995, since the usual

reporter Thiru T. Sekar was on leave, has sworn to an affidavit, wherein he has stated that on 9.8.1995 when he came down to this Court, he

heard out side court hall No. 3, from some persons, who were discussing about the above case, that this Court has punished the Petitioner, on the

basis of false letters and since the matter involved human interest, in absolute good faith, he had sent the news item, to the daily, for publication,

since he firmly believed that the information he had received in the premises of this Court was correct. He expressed unconditional apology for the

grave mistake committed by him, since he was new to the assignment and he could not have verified its propriety, since the mistake committed by

him was genuine. He has also undertaken not to commit such blunders-we cannot call it a mistake, in future, in respect of court proceedings. We

have no reason, not to accept the unconditional apology tendered by the news reporter. We have also warned him in open court, that he has to be

diligent, and no matter should be reported without proper verification, for unauthenticated items, can affect the reputation of individuals, which

cannot easily be repaired.

Even on the least occasion, we felt that the Petitioner must be directed to pay a compensation to the detenu as well to the first Respondent,

who have been harmed by the proceedings, initiated by him. The detenu and the first Respondent have been put to untold mental agony, apart from

monetary suffering. We had observed that the Petitioner may have to pay at least a sum of Rs. 10,000/- by way of damages and expenses to the

first Respondent and the detenu, in which event we would be able to consider if it would be expedient in the interests of justice, not to initiate a

prosecution against the Petitioner. After pleading for grant of some time to arrange for funds, the Petitioner has to day paid before us, Rs. 10,000/-

in cash to the detenu. The detenu has acknowledged receipt of Rs. 10,000/- after counting the currency. Petitioner has filed a declaration in open

court today, which reads as hereunder:

I, Sivakumar, son of Srinivasan, residing at No. 1, P.P. Amman Koil Second Street, Madras-81, do hereby tender unconditional apology and I

hereby undertake that I will not indulge in such activities in future and accordingly I swear to the above declaration.

It has been signed by him in open court in the presence of his Advocate. This declaration shall also form part of this order.

We are, at this stage, satisfied, that the Petitioner bona fide feels repentant for all those acts -not legal - committed by him and the payment of

Rs. 10,000/- as damages and expenses to the detenu, which he had to raise after sufficient suffering, will be an eye opener not only to him, but

persons similarly placed like him to desist from indulging in blackmailing activity. Quite often, it has come to our notice, that habeas corpus

petitions, are preferred day in and day out, seeking for production of minor girls on the verge of attaining majority, or some time ''just majors''

claiming that those seekers of ""habeas"" had in fact entered into matrimony with those alleged detenus, Equally, quite often, we have found that

infatuation arising out of either feigned voluntariness or coercion, had led to desertion of parents and ultimately, except on rare cases, these girls

land up in the parental house, after a few months, on being neglected by those romeos, who are obviously more interested in physical happiness

rather than the sacred objective of a marital tie. As a matter of fact, another Division Bench of this Court, had occasion to come across a similar

instance. As has been observed by the other Division Bench, the attempt made by the Petitioner herein as well as Petitioners in similar such

petitions, appear to be a sort of blackmailing endeavor. On the one side, the girls and boys who are in an impressionable age, desist control by the

parents, even if attempted, and on the other, the media quite often projects fancifully glory simmering thoughts and the eyes ""not discerning"" fall a

prey, only to realize belatedly, that all that they had dreamed, had cracked down beyond repair. Questionable activities of boys attempting to

abduct girls and luring them into presumed matrimony and later leaving them uncared for, cannot be allowed to be perpetuated. Such menace will

have to be put down with an iron hand. Otherwise, the society will be the ultimate suffered.

This is a clear instance where we are satisfied that the Petitioner had., without any basis, claimed the detenu to be his wife, and even after

preferring this habeas corpus petition, had further attempted to cause trouble to the detenu and her parents, during the pendency of this habeas

corpus petition. We are of the opinion, on all that we have stated above, that prosecution of the Petitioner, at the instance of this Court, may not be

expedient in the interests of justice, especially in view of the unconditional apology tendered by the Petitioner in writing as well as the suffering he

had undergone in raising Rs. 10,000/- to pay it to the detenu, by way of damages/compensation/expenses, coupled with the possible scope for

reformation. We hope that this case will be an eye opener not only to the younger generation, but also to the elder, that in spite of modernity of

ideas and thoughts, mere should be a sort of supervision over children of impressionable age - not that reasonable freedom of independence of the

wards should be curbed. The past culture cannot be totally lost sight of, for ultimately it is the community that would be put to shame and suffering.

The detenu is admittedly not in illegal custody and she is happily living with her parents. There cannot be a second opinion, on the available facts,

that the Petitioner had not married the detenu. Mere production of a photograph of Padmini, will not show, that the Petitioner had married her. Not

even a photograph showing both of them together on the alleged marriage day has been placed before us. To reiterate, if the marriage had taken

place in Seerthirutha form, there can be no scope for another regular marriage, as sought to be projected by the Petitioner in his affidavit. This

habeas corpus petition shall stand dismissed, of course, subject to all that we have stated above.

The documents handed over by Petitioner''s counsel shall form part of court record.