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Cries and clamors and voices of condemnation could be heard throughout the State of Tamil Nadu subsequent to the controversial comments of a famed cine celebrity made during her interviews to a famous Magazine and a popular Tamil Daily about premarital sex & Indian Society and Tamil culture and, as the feelings of the members of the commonalty had been outraged, the waves of reflex could swiftly cross even the boundaries of the State. The fuming aura due to sweeping protests and obstinate agitations got eased only when doors of the court were knocked at various districts of Tamil Nadu, of course in North India also at Indore, by filing private complaints against the actress and there derived a positivity that law would take its own course. The present batch of petitions have been preferred to quash the proceedings pending before various courts of Magistrates in the State on the ground that there was illegality on the part of the trial courts in taking cognizance of the offences alleged in the baseless private complaints and subsequently issuing summons against the petitioner. Actually, some of the petitions have been filed before this Court while others before the Madurai Bench and in order to have one touch and give a quietus, all the petitions have been clubbed together and posted before this court for hearing and disposal.

(d) Offences under the Act are made punishable with imprisonment of either description for a term extending to two years and fine extending to two thousand rupees on first conviction. Second and subsequent convictions will attract a higher punishment."

5. Learned Senior Counsel for the petitioner/accused at the outset submits that the offences aforementioned are not made out. According to him, prima facie materials made available in the complaints are not sufficient to attract the penal provisions under the IPC and the Act. The petitioner is a famous film actress in several languages and earned good reputation amongst public. She is a married women, has got children and leading a family life. Only due to animosity and jealousy, the complaints have been filed with a view to tarnish her image. India Today conducted a survey on the subject of premarital sex of girls in big cities all over India by interviewing celebrities like the petitioner and when comments were invited from her, she had offered her fair opinion on the issue involved. What she has stated is, sex is not merely a physical relationship but also it is a matter concerning with disposition of mind and desire; Indian society should get reformed thereby virginity should not be expected from a bride at the time of marriage; educated men should not expect that the bride must be virgin and, in that lines, advised that persons having premarital intercourse should adopt proper safety measures to avoid pregnancy and venereal diseases. A fair and unbiased reading of those comments would suggest that there is nothing wrong in giving her own opinion and making comments on the subject matter. Actually, the petitioner had no intention to insult or cause injury to the feelings of any sect or community or to defame their customs, traditions and culture but made her statements only in good faith. That being so, misleading information has been published in Dhina Thanthi, edition dated 24.09.2005, and finding that a distorted version had been given, legal notice was issued to the said Newspaper. He submitted that the statement of the petitioner as published in India Today falls within the parameters of freedom of speech and expression as enshrined in Article 19(1)(a) of the Constitution of India. Certain group of persons misconstrued the statement of the petitioner and, without appreciating the same in a proper perspective, they preferred private complaints before various courts. It is false to allege that such statements issued by the petitioner would amount to defamation or criticising the chastity and virginity of the women in Tamil Nadu as well as the cherished Tamil culture. As a matter of fact, nothing has been stated about the women of Tamil Nadu in particular and the petitioner only referred to the social custom prevailing in Indian Society. Nowhere she has referred either the culture of Tamil ladies or any other specific community or people. The respondents/complainants are not aggrieved persons within the meaning of Section 199(1) Cr.P.C. to maintain private complaints. Though in some of the complaints, it has been mentioned that those complaints had been filed in representative capacity, the procedure adopted being erroneous, the same are not maintainable. The comments made by the petitioner cannot be said to be defamatory against the member of any class or body to which he or she belongs to. Inasmuch as the so-called offensive statement is nothing but a personal opinion and fair comment of the petitioner, her action is protected by more than one exceptions appended to Section 499 IPC. Only for the purpose of harassing the petitioner, with mala fide intention, the private complaints have been filed and the same is an abuse of process of law and ex facie illegal. To prosecute the petitioner under Section 505 IPC., as per Section 196(a) Cr.P.C., sanction must be obtained from the Central or State Government and it could be seen that, in Crl.O.P. No.31394 of 2005, no such sanction has been obtained, therefore, the cognizance taken by the Magistrate is erroneous. By submitting that, as per Section 199 (1) Cr.P.C., no court shall take cognizance of the offence under Sections 499 and 500 IPC unless the complaint is filed by a person aggrieved, learned Senior Counsel argued that the private complaints have been filed by women against whom nothing has been stated in individual capacity, therefore, they have no locus standi to prefer the complaints. Similarly, unless there is intentional insult to provoke breach of peace, offence under Section 504 IPC. will not be made out. In the cases on hand, no allegation has been made in the private complaints to the effect that such statement of the petitioner caused breach of peace. Section 509 IPC. speaks about intending insult to the modesty of a woman through word, gesture or act and the statement made cannot be construed to fit in with the ingredients of the said Section. Likewise, to make out an offence under Section 505 IPC., a person must have issued statements conducing to public mischief with an intention to cause fear or alarm to the public or to any section of the public whereby any person might have been induced to commit an offence against the State or against public tranquility, and in the cases on hand, it can never be said that such mischief has been caused due to the comments made. Section 3 of the Act is applicable only to the publisher. Section 153 IPC. in respect of wantonly giving provocation with intent to cause riot and Section 153-A IPC. dealing with promoting enmity between different groups on grounds of religion, race, place of birth, residence, language etc. and doing acts prejudicial to maintenance of harmony, are not attracted in the case of the petitioner. Again, it is submitted that the complainants, most of whom are women, have not stated as to how they were affected by the statement made by the petitioner and nowhere it has been specifically averred that the complaints have been filed on behalf of a group or association. Though it has been bluntly stated that the statement of the petitioner disgraced the women in Tamil Nadu, no substantive material has been produced in that regard.

10. Admittedly, the petitioner herein is a cine actress, who gained popularity in Tamil Nadu to such a level that her fans went to the extreme extent of constructing a temple for her. She is not an academician or a researcher in sexology to preach the subject in the fashion understood by her. It seems that she had studied only upto VIII Standard. Apart from the field of cinema, she does not have any expertise or scholarly knowledge in the area of sociology or sexology. She is neither a member of any social or women organization fighting for the cause of women or their upliftment nor involved in public life. Thus, she cannot be categorised as an expert in sexology or any connected branch of that subject. In such circumstances, the comments made at the interview to India Today on the subject of premarital sex have to be assessed. While expressing her individual opinion, she has stated that, in the Indian Society stuffed with conservative taboos, woman is gradually flapping her wings; that the society should get liberated from the thinking that women should not lose their virginity till marriage and that educated persons should not expect their life partners to be with virginity at the time of marriage. She even went ahead to state that if a girl is very serious about her relationship with her opposite sex, the parents should allow such relationship and that, while indulging in premarital sex, care should be taken to avoid pregnancy and venereal diseases. Had the petitioner stated that she as a parent and member of a family would introduce and teach such lifestyle amongst her family members, then it is her personal opinion. But, the problem arose when she addressed the society at large to bring up the children in a fashion heralded and suggested by her in the name of liberation of women and not to care about being virgin, and further stated that a groom should not expect his prospective bride to be with virginity. Not stopping therewith, after publication of her statement in India Today, when a clarification was sought for by a reporter of Dhina Thanthi stating that such statement would lead to cultural degradation, the petitioner questioned as to which culture they are referring to and asked as to how many men and women are in Tamil Nadu who did not indulge in pre-marital sex. She was proud enough to say that she used to be transparent and open in her speech and she does not bother about those who do not understand her comments. Though it is stated that she has not given any such reply or clarification and that a legal notice was issued to the Newspaper, it seems that no further action has been pursued thereafter. It must be pointed out that the comments made at the first instance would have gone vanished in course of time if the petitioner withdrew her statement by showing immediate reaction having regard to the intensity of the situation. Learned Senior Counsel again pointed out that a legal notice was issued to the Daily to publish her objections immediately and to make it clear that she did not actually mean what has been widely understood; therefore, it is repeated that the matter was not pursued further and that it is a disputed area where this court does not desire to enter into. If she was so much serious, she could have very well called for a press meet and clarified her position.

It is the perpetual understanding of a right mind that both premarital and extramarital relationships are molecules of immorality. Largely, such relationship advocated to be adopted by the petitioner can also be termed as 'cohabitation' and the definition available for the term is 'a non-marital heterosexual arrangement or a semi-permanent heterosexual relationship outside the scope of marriage'. The petitioner addressed the society in particular the younger generation to acquire the right of cohabitation. With a fair approach and unbiased mind, one has to judge the issue between the two conflicting views on the right of cohabitation/premarital or extramarital sex. According to one view, rather a traditional view, such relationship is completely wrong and promotes sexual promiscuity which is injurious to physical and mental health. It is pertinent to point out that such view is still reflected in the adultery laws which make extramarital sex illegal. On the other extreme, there is sexual anarchy which advocates the removal of all sexual taboos and controls with full and universal availability of sex, the only restriction being the prohibition of sexual violence. In between these two poles, the judicious and balanced view is humanistic liberalism which holds that morality inheres in one's deeds rather than the commission or omission of the act itself. Immorality in the present context seems to refer to nothing more or less than extra-marital or pre-marital relationships.