SELVAM Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE prayer in the writ petition is.... ".....to issue a writ, order, direction and in particular a writ of mandamus as: (a) directing the first respondent to pay the petitioners a fair and just amount of compensation for the death of Mr.Ponnusamy, (b) Directing the first respondent to give any other relief to the petitioners as this Hon"ble Court may consider fit and proper: and (c) Ordering cost of this petition".

(2.) THE first petitioner is the widow, who has filed the writ petition on behalf of herself and her minor daughter, the second petitioner. Her husband was arrested and remanded to judicial custody on 14.4.1990. It is alleged that he died under suspicious circumstances, while he was in Sub-Jail, Namakkal on 20.4.1990. It is stated in the affidavit filed in support of the writ petition that the first petitioner's husband was .evading the process of the court in execution proceedings taken by the petitioner for maintenance. It is stated that the death took place due to the negligence and default of the prison officials concerned It is stated in the affidavit that the petitioner was married to one Ponnusamy during 1977 and a daughter was born in 1978. When she was in the advance stage of pregnancy, it is alleged that she was chased out of the matrimonial home of the deceased husband. Though a trial was made to settle the matter, the petitioner initiated criminal proceedings against the deceased husband for bigamy and in turn, he filed a petition under the Hindu Marriage Act for restitution of conjugal rights. In that petition, the first petitioner seems to have filed an application for interim maintenance and when he failed to appear before Court, the matter was dismissed for default. At this stage, in 1987, the first petitioner filed a petition for maintenance in M.C.No.3 of 1987 before the Judicial First Class Magistrate, Namakkal and after contest, an order was passed in favour of the first petitioner, fixing maintenance at Rs.300 per month to the first petitioner and at Rs. 100 for the daughter. When, the application was taken for executing the order on 17.3.1989, it seems the first petitioner's husband refused to receive the notice and he was evading arrest. Ultimately he filed a revision petition before the Sessions Court and obtained a stay, on condition that he should deposit half of the arrears When that condition was not complied with, his revision petition was dismissed by the Sessions Court on 22.9.1989. THE first petitioner seems to have filed a Crl.R.C.No.128 of 1989 before this Court for enhancement of the maintenance amount. When the husband of the first petitioner was not appearing before the Judicial Magistrate, Namakkal, a non-bailable warrant was issued for arrest .THE efforts made by the first petitioner to get her husband arrested were not successful. So the first petitioner approached this Court in Crl.M.P.No.2807 of 1990 for directing the first respondent to execute the said warrant. An order was passed by this Court in the Criminal Side on 14.3.1990 fixing a time limit. Ultimately, the first petitioner's husband was arrested and produced before the Judicial Magistrate, Namakkal on 14.4.1990. THEreupon, he was remanded to the Judicial Custody and he was kept in Sub-Jail Namakkal. At this point, the first petitioner received a message that her husband's body was taken from a well near the Sub-Jail, Namakkal. THE background of the death of the first petitioner's husband was not known.

(3.) I have heard Mr.R.Rathinam, learned counsel appearing for the petitioners in extenso and have gone through the affidavit filed by the first petitioner and also the counter-affidavit filed by the respondents 1 to 3. It is a case of a husband, who was kept on remand on the persistent attempts made by the first petitioner wife to get him behind the bars, had died. The husband died against whom the first petitioner has filed a petition for maintenance and for the default committed by the deceased husband, she, so to say, got her husband kept in custody in the Sub-Jail, Namakkal. From the facts, it is very clear that the well is covered by wiremesh and a hole is left out for taking the water, which is absolutely necessary for the prisoners. It is also very clear that the well is also covered by a tin-sheet cover and the incident had happened so suddenly and unexpectedly when the three personnel of Jail Administration, who were in charge, were helpless. Not only those three personnel, who were Warders and the Superintendent of the Sub-Jail, Namakkal were helpless; but also the other co-prisoners, who were also equally helpless, to save the first petitioner's husband from-the fall into the well. The first petitioner's husband chose to fall into"the well purposefully and committed suicide. To say that the respondents 1 to 3 are careless and negligent is too much to contend on the part of the first petitioner, that too in a petition under Art.226 of the Constitution of India. What happened on that day and how the first petitioner's husband fell into the well and how the officials of the State were negligent and who was responsible for this are all matters for evidence in a properly laid suit in a civil forum. Surely, Art.226 of the Constitution cannot be taken as a substitute for granting compensation in such matters, on the peculiar facts of this case. I am of the view that such matters cannot be decided merely on affidavits and counter-affidavits. It is hot as if the petitioners has no remedy at all in law. The remedy of the petitioners is under common law, that is to say, to sue the State for tort, especially on the ground of negligence, if she is advised to do so.