Christ University Law Journal

2017, Vol. 6, No. 2, 61-75

ISSN 2278-4332X│https://doi.org/10.12728/culj.11.4

Comparative Analysis of Cyber Stalking

Legislations in UK, US and India

Arunbaby Stephen

Abstract

The Internet, with its vast connectivity and ample

resources, provides an easy platform for committing
crimes. Cyber stalking is one such offence, which has
grown in the last two decades with the advent of cheap
and fast internet connectivity. The Internet provides
various means by which cyber stalking can occur. The
lack of boundaries on the internet creates more risk for
the users and as more and more people start using
internet, the scope and complexity of this problem will
only increase. More and more states are passing exclusive
statutes for tackling Cyber Stalking, believing that their
offline stalking statutes are not enough to handle different
aspects of this issue. This paper analyses the different
legislations passed across the world to tackle cyber
stalking. With stalking itself being a comparatively fresh
offence in India, it has been a late entry into the field of
cyber stalking, with the first provision being made in
2013, in the form of Section 354 D of the Indian Penal
Code. The article examines the shortfalls of this provision
and the ways in which they can be tackled.
Keywords: Criminal Law Amendment, Cyber Stalking, Internet,
Privacy, Section 354D of Indian Penal Code

 NALSAR University of Law, Hyderabad, India; [email protected]

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I. Introduction

Internet is the most efficient new age tool for communication and
sharing of information. It has reduced the distance between people,
and has made any information accessible with a few mouse clicks.
While new technology makes our lives easier and helps in better
sharing of ideas, it has also resulted in some negative
consequences. As it is with every innovation, human ingenuity has
identified ways to misuse the internet for one’s own selfish needs
and for achieving ulterior motives. Cyber stalking is one such
abuse of the internet’s immense potential which is the primary
concern of this paper. Cyber stalking may occur when a person
consistently tries to contact another person with the intention of
controlling the victim’s life or instilling fear in them. It is true that
even males can be the victims of this, but studies show that
majority of the victims are female. Women are the minority in the
cyber world and hence, there is fierce competition among men for
their attention.1 It is different from stalking in the physical world,
due to the increased potential of abuse because of the added
dimension of virtual world. Even the act of physical stalking is
comparatively a fresh entry into legislations with the first anti-
stalking legislation being passed in California after a TV star
Rebecca Schaeffer was murdered by her stalker.2
The Internet provides various means by which cyber stalking can
occur. It can be in the form of a persistent online communication,
posting messages on online platforms or chat groups which violate
the victim’s privacy, or by monitoring the online activities of the
victim. As the use of technology increases it would result in more
incidents of cyber stalking happening and hence, legal systems
across the world have codified laws exclusively to handle cyber
stalking. The lack of norms, the privilege of anonymity, and
relatively low risk of facing consequences emboldens the stalker to
go about his business in the cyberspace. The lack of boundaries on

1 NANDAN KAMATH, Cyber stalking a web of obsession, in LAW RELATING TO

COMPUTERS INTERNET & E-COMMERCE249 (Universal Publishing Co.,
5thed).
2 Naomi Harlin Goodno, Cyberstalkinga New Crime: Evaluating Effectiveness

of Current State and Federal Laws, 72 MISSOURI L. R. 125(2007).

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the internet creates more risk for the users and as more and more
people start using internet, the scope and complexity of this
problem would only increase.

II. Definition and Nature of Cyber Stalking

Cyber Stalking can be defined as a behavior by which an individual

or group of individuals use internet and communication
technology to harass another individual or group. It involves
engaging in a course of conduct, to communicate or causes to be
communicated words, images, or language through the use of
electronic mail or electronic communication, directed at a specific
person, causing substantial emotional distress to that person and
serving no legitimate purpose.3 It is promoted by a delusional and
narcissistic perception of a relationship and intended to empower
the ‘predator’ to feel omnipotent and in control, while reducing the
prey’s emotional state to vulnerability and fear.4 It includes online
harassment by sending unwanted, abusive, or obscene emails or
communications or jeopardizing the system by sending computer
viruses or even by impersonating the victim in cyber space. Cyber
stalking essentially violates the privacy of an individual. Providing
personal information about the victim on public online platforms,
or publishing altered or offensive pictures in online platforms also
falls under cyber stalking. The stalker acts in a way that
undermines the ability of the victim to take a decision in his/her
own life.
Generally, cyber stalking is a course of conduct that takes place
over a period of time and involves deliberate repeated attempts to
cause distress to the victim. It consists of repetitious conduct which
would cause fear in a reasonable person. A mere unsolicited
communication does not amount to cyber stalking, but it involves
methodical, deliberate and persistent efforts on the part of the
stalker and would continue even after the victim has asked the
stalker to stop communicating with him/her. Victims may be
totally unaware of the physical location of the stalker which makes
it more fearful for the victim. It totally disrupts the normal life of

3Florida Statute § 784.048(1)(d).

4Supra note 1, at 248.
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the victim and affects the peace of mind. With the advent of social
media, stalkers have the ability to post comments about the victim
for the whole world to see which can harass the victim in front of a
larger audience. It might also affect the professional life of the
victim as she has to keep away from online activities for a while to
stop this unwanted communication. The stalker might also assume
the personality of the victim on online discussion forums or social
media and might post hateful messages the backlash of which
would be faced by the victim. There are high chances that online
stalking might lead to violence in the real world. Online
harassment might also include sexual harassment and might be
indicative of obsessive nature of the stalker. In the infamous
incident of Amy Boyer, her stalker had been running a website
fully dedicated to her without her knowledge for two years. He
published information about what she wore, what she did, what
she said, etc., and ultimately committed suicide after killing her.
Some stalkers go to the extent of installing key loggers in the
system of the victim (especially when victim shared an intimate
relationship with the stalker at one point of time) which supplies
them with endless source of information. Nandan Kamath has
classified Cyber Stalkers generally into three categories:5
 Simple obsessional
 Erotomanic
 Love obsessional
In ‘simple obsessional’ stalker behavior, a prior relationship exists
between the stalker and the victim. The victim could be an
acquaintance, colleague, or co-worker. The stalking begins when
the relationship has deteriorated or terminated or when the stalker
feels he has been mistreated. He attempts to restore the same level
of intimacy or tries to harass the victim as retribution. This type of
stalking can turn out to be the most dangerous type. In case of an
‘erotomanic’ the subject believes that the victim loves him
passionately when they have not even met. This type of behavior
does not result in any harm because the stalker will have the best
interest of the victim in mind. In case of ‘love obsessionals’ they

5Supra note 1, at 250 – 52.

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may not know the subject of obsession personally, usually they

become aware through media and their goal is to get their subjects
to respond to their expressions of love. 6

III. Difference between Offline and Cyber Stalking

The objective of the stalker in both cyber as well as physical

stalking is the same; it is the desire to exert control over the victim.7
Even then cyber stalking and offline stalking differ in many ways.
Anonymity is one condition which empowers human beings to do
acts which otherwise they would not dare to do because they feel
they have protection of the ‘veil of anonymity’.8 This condition is
easily satisfied by cyber world where a distinct identity can be
created in a matter of minutes. Anonymity helps to overcome
inhibitions and inabilities of the stalker which would also prompt
stalker to indulge in harassing behavior which he otherwise would
not have indulged in real life. With the spread of internet and web
enabled devices any person can abuse another within the veil of
anonymity, and within a matter of seconds the entire world can
view the offensive information. Anonymity can be easily achieved
by using remailer technology. It removes all identification features
from a mail and uses a random header. The trail created would be
so complex that unprecedented anonymity would be granted.
Unlike in physical stalking the time and effort required by the
stalker is minimal and the cost is also negligent. For example, an
offline stalker may harass by making repeated phone calls but each
of such phone call requires his time and effort while in cyber
stalking he can program his system to send an offensive message to
a particular person at regular intervals without any further effort
from his part. While in physical stalking, the victim and the stalker
need to be in the same geographical location, in case of cyber
stalking the act can be done from thousands of miles away. The
easy and cheap access to internet due to technological development
improves the ability of the stalker to commit his activities behind a
veil of anonymity from a far off place without ever being in the

6 Id.
7Supra note 2.
8 Merrit Baer, Cyberscapingand the landscape you have created15 Va. J.L. &
Tech. 153, Fall, 2010, 156
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presence of the victim. Cyber stalking from another country also

makes investigation, collection of evidence, and prosecution more
difficult.
Unlike in the offline world, in the cyber world the stalker can easily
impersonate the victim. The stalker can easily post inflammatory or
obscene messages in an online bulletin board under victim’s name
which would result in victim being at the receiving end of hate
mails or lewd messages. Another fundamental difference between
offline and cyber stalking is that in cyber stalking, innocent third
party can be incited to commit harassment. For instance, a cyber
stalker after being repeatedly rejected by the victim posed as the
victim and posted in an online discussion forum that she fantasized
of being raped. He published the name and address of the victim
along with her phone number which resulted in men arriving at
her house on numerous occasions to fulfill her wish.9 So in a way
cyber stalking is more frightening than offline stalking because it
requires only minimum effort, minimum cost, provides
instantaneous connectivity and anonymity, and also ample
opportunities to pose as a third person.

IV. Legal Framework around the World

IV. 1 United Kingdom

There is no specific legislation in UK which deals with cyber
stalking as such. Instead there are three major laws used to counter
harassment which are also used in case of stalking.
Telecommunications Act 1984, Malicious Communications Act,
1988 and Protection from Harassment Act 1997, are the three major
statutes used to tackle the issue of stalking as well as cyber stalking.
The Telecommunications Act 1984, makes it an offence to send a
message which is inappropriate, threatening, or indecent. The 1988
Act, which is wider in its ambit is an Act for punishing those who
send letters or deliver articles for the purpose of causing anxiety or
distress. Section 1 of the Protection from Harassment Act 1997,
states that, a person must not pursue a course of conduct which

9BillWallace, Stalkers Find a New Tool--The Internet, S.F. CHRON., (Jul. 10,
2000), http://www.sfgate.com/cgi-bin/article.cgi?file=/ chronicle/
archive/2000/07/10/MN39633.DTL

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amounts to harassment of another or which he knows or ought to

know amounts to harassment of other. Section 2A of the Act states
that in order to constitute stalking three conditions have to be
satisfied:
1) Course of conduct
2) Course of conduct in breach of Section1 under the Act
3) Course of conduct which amounts to stalking.
The Harassment Act does not try to define stalking, instead in
Section 2A (3) certain activities which would amount to stalking are
listed:
 Following a person
 Attempting to contact or contacting a person
 Publishing any statement or other material relating or
purporting to relate to a person
 Monitoring the use of internet or electronic communication
of any person
 Watching or spying on a person
 Interfering with property in possession of a person.
The list provided is not an exhaustive list, and whether the course
of conduct would amount to stalking has to be determined by
checking whether the conduct would cause harassment to a
reasonable person. The offence under Section 2A is a summary
offence and if found guilty, the stalker would be punished with
imprisonment for a period not exceeding six month or with fine.
The more serious offence is under Section 4A which involves the
following elements:
 Course of conduct
 Which amounts to stalking
 This causes another to fear on at least two occasions that
violence will be used against him or her or causes serious
alarm or distress which has a substantial adverse effect on
his or her day to day activities.
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Substantial adverse effect would involve the victim changing his

way to work, pattern of work or employment itself, or deterioration
of victim’s physical and mental health, etc. Such activities are
punishable by imprisonment for a maximum period of five years
and Court is also enabled to pass a restraining order under Section
5 to prevent further contact of offender. The Act also enables a
victim to file for injunction in civil court to prevent future
harassment and to obtain damages. But recently the Act has been
criticized for becoming a tool for curbing free speech as a result of
misuse of the Act by corporations. Peaceful protesters are at the
receiving end of civil injunctions which violate their right to
express and protest.10
Before the enactment of 1997 there have been few interesting
decisions from UK Courts where stalking has been brought under
the ambit of offences like ‘assault’ ‘grievous body harm’ and ‘public
nuisance’. In Burstow11 the Crown Court convicted the accused for
causing serious body harm to the victim by a campaign of silent
phone calls. The depression suffered by victim was held as inflicted
upon her by the accused. The Court of Appeals affirmed the ruling.
In R v. Ireland, 12 the Court of Appeals stretched the meaning of
Assault to hold a series of calls followed by silence would
constitute assault. Usually assault is constituted when force can be
applied immediately but the Court in Ireland gave rise to prospect
of long distance assaults. In R v. Johnson 13 Court of Appeal
confirmed the conviction of an appellant of public nuisance based
on his numerous obscene telephone calls over a period of five and a
half years. These curious judgments seems to be stemming from the
fact that there was no special law for tackling stalking which in
turn seems to have triggered the 1997 Act.

10 Protection of Harrassment Act, 1997, THE GUARDIAN (Jun. 9,

2009),https://www.theguardian.com/commentisfree/libertycentral/20
09/jun/01/liberty-central-protection-harassment.
11R v. Burstow, (1996) Crim LR 331.
12R v. Ireland, (1997) 1 All ER 112.
13R v. Johnson, (1997) 1 WLR 367.

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IV. 2 United States of America

In the United States due to its federal nature there exist state laws
as well as federal laws which deal with problem of stalking. State
legislations can be broadly divided into three categories:
 Statutes that do not address cyber stalking
 Statutes that cover some aspects of cyber stalking
 Statutes that specifically deal with issue of cyber stalking
State statutes that do not address cyber stalking are the ones which
require physical pursuit requirements or which do not recognize
stalking through electronic communication methods. An example
would be anti-stalking legislation of Maryland which insists on
physical pursuit requirements.14 Some states might have telephone
harassment statute which is wholly adequate to tackle cyber
stalking. Some states have tried to solve this problem by amending
the existing state laws to bring within its ambit electronic
communication.
The second set of laws is the one with legislations which covers
some aspects of cyber stalking. Electronic communication might be
included in stalking laws but they fail to address issues like third
party harassment and messages sent not directly to the victim. The
New York state law addresses the issue of stalking over electronic
devices but fails to address two different situations:
 Where the stalker publishes information in some blog post
or website and not directly to the victim(as happened in
Amy Boyer’s case)
 Where the stalker incites third party to harass the victim.
Also, some statutes require fulfilling the ‘credible threat’
requirement to constitute the act of stalking.15 State legislations of
Louisiana and North Carolina require harassing electronic
communication to be sent to victim. Florida and Mississippi statues
also have the same issue, since they require the communication to

14 AilyShimzu, Towards creation of cyber stalking statute, 28 BERKELEY J.

GENDER L. & JUST.(2013).
15 Id, at 135

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be directed to a specific person.16These statutes fail to address third

party harassment through stalking.
The third category of state statutes contains legislations that
address all aspects of cyber stalking. Washington, Ohio, and Rhode
Island are the only three states with legislation that address the
aspect of third party harassment as a result of cyber stalking. These
three states have passed laws exclusively dealing with cyber
stalking despite the existence of separate statutes for offline
stalking.
Civil protection orders are also available against cyber stalkers
depending on the nature of state statutes governing civil protection
orders. Protection orders prohibits the stalker from making further
contact, possessing firearm, prohibits harassment and abuse, and
any other order the Court may find suitable. If violated, the Court
can initiate contempt of court proceedings against the violator.
Florida and New York allows for issuance of civil protection orders
on the basis of cyber stalkers acts.17
There are also three major Federal legislations which deal with
harassing behavior. They are:
 Interstate Communications Act
 Federal Telephone Harassment Statute
 Federal Interstate Stalking Punishment and Prevention Act
The Interstate Communications Act prohibits interstate threats to
harm another person. But the condition is that threat must be to
injure or kidnap a person. The communication should be of such a
nature that a reasonable person would take it of a serious nature.
But the statute fails to address cyber stalking which causes
harassment without any threat of injury. In United States
v.Alkhabaz, 18 the defendant posted violent sexual fantasies about
one of his classmate’s son, wherein the internet. Court held he has

16Supranote 2, at 146.
17Supranote 13, at 121.
18United States v. Alkhabaz, 1997 U.S.App.1353.

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not violated the statute since there was no element of threat in the
communication.19
The Federal Telephone Harassment Statute passed in 1934 was
amended in 2006 to address the problem of cyber stalking. The
definition of Telecommunication devices was expanded to include
any device or software which communicates using internet. The
statute imposes imprisonment of two years for using a
telecommunication device to annoy abuse or threaten any person.
However, the Act has some serious drawbacks the major one being
the requirement that communication must be anonymous.
Secondly, the statute comes into play only on a direct
communication and fails to address the concept of third party
harassment incited by the Cyber Stalker. Some critics have also
argued that the word ‘annoy’ in the Act is overboard.20
The Federal Interstate Stalking Punishment and Prevention Act,
1996 specifically accounts for cyber stalking. It prohibits any
individual with the intent to injure, kill, harass, or cause substantial
emotional distress from using any interactive computer device to
cause these. Initially one condition was that the defendant should
have travelled across state line which was removed by 2006
amendment. The statute is comparatively better than other federal
statues because it does not insist on credible threat requirement and
nor does it apply only in case of anonymous messages.21 However,
the statute is ineffective in handling third party harassment.

IV. 3 India
Before 2013 there was no legal definition for stalking or cyber-
stalking in India. Stalking was recognized as an offence in India
after the 2013 Criminal Law Amendment Act, which introduced S.
354D to the Indian Penal Code (IPC). Section 354D of IPC defines
stalking as follows:
‘Any man who 1) follows a woman and contacts, or
attempts to contact such woman to foster personal
interaction repeatedly despite a clear indication of

19Supra note 2, at 148.

20Id, at 149.
21Id.

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disinterest by such woman; or 2) monitors the use by

a woman of the internet, email or any other form of
electronic communication, commits the offence of
stalking:
Provided that such conduct shall not amount to
stalking if the man who pursued it proves that i) it
was pursued for the purpose of preventing or
detecting crime and the man accused of stalking had
been entrusted with the responsibility of prevention
and detection of crime by the state ii) it was pursued
under any law or to comply with any condition or
requirement imposed by any person under any law
iii) in the particular circumstances such conduct was
reasonable and justified.’
This definition of Cyber Stalking in comparison with the UK or US
laws is very limited in its ambit. The wordings of Section 354D
make it clear that offline and online stalking may happen together
or as separate acts. The section as such does not try to define cyber
stalking but the meaning has to be read from the text of the Section
especially Section 354D (2).22 Subsection (2) does not indicate how
the victim can be ‘monitored’ or ‘watched’ or what constitutes these
acts. It is clear that the section contains the concept of breaching
privacy but it has been left to the Courts to expand the meaning of
these words. Section 354D is also silent about how the personal
information should not be used in online platforms so as to create
fear or anxiety to the victim. Another provision which the law
should have considered was power to give restraining order like
the 1997 UK statute.
Section 354D (2) makes the offence punishable with imprisonment
for a period not exceeding three years with fine in case of first
conviction. It is cognizable and bailable at this stage but, in case of
second conviction, the punishment would be for a period of
maximum five years with fine. The offence would be non-bailable
in the second chance. The provision is also silent about removing

22 Debarthi Halder, Cyber stalking victimization of women: Evaluating

effectiveness of current laws in India from restorative justice and therapeutic
Jurisprudential perspectives, http://ssrn.com/abstract=2745352.

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an offensive post or message in cyber space and fails to address the

mental and psychological harm done to the victim. Proviso to
Section 354D has excluded certain conduct from definition of
stalking. These exceptions are inspired from Section 1(3) of
Protection from Harassment Act 1997, which is UK legislation
dealing with harassment. But, it remains to be seen the broad terms
of the exception would stand the test of constitutionality especially
the last provision which indirectly allows for breach of privacy and
confidentiality on grounds that, such conduct was reasonable and
justified in the circumstances. This Section suffers from the defect
of vagueness and provides law enforcing authority with arbitrary
powers to interfere in a person’s privacy. There seems to be a direct
conflict with this provision and the ration given in landmark case
of PUCL v. Union of India,23 where the Court laid down guidelines
to regulate the power vested in State under Section 5 of Telegraph
Act. The Court held that the tapping of telephone calls infringes the
right to privacy and powers under Section 5 can only be used in
case of public emergency or where public safety demands it. Even
then the guidelines have to be followed.
There is no reason why these procedural safeguards should not be
extended to online communications and then, the very exception
carved out goes against the standard set by the judgment. Also, the
first proviso goes to the extent of saying that a man entrusted with
the duty of prevention of crime by the State can commit cyber
stalking for the purpose of preventing or detecting a crime. The
Supreme Court, in Kharak Singh v. State of Uttar Pradesh,24 struck
down as unconstitutional the part of Regulation 236 of U.P. Police
Regulations, which allowed for domiciliary visit, because it
violated Article 21 of the Constitution. Court quoted extensively
from 4th amendment of the US Constitution and held police
interference into the sanctity and security of a person’s home
violates personal liberty mentioned under Article 21 citing
Frankfurt.J, from Wolf v. Colorado25holding, security of one’s privacy
against arbitrary intrusion by police is basic to a free society and
implied in ordered liberty. It will be interesting to see how this

23 PUCL v. Union of India, AIR 1997 SC 568.

24 Kharak Singh v. State of Uttar Pradesh, 1964 SCR (1) 332.
25 Wolf v. Colorado, 338 U.S 25 (1949).

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notion of privacy is reconciled with the exceptions provided under

Section 354D.
Another criticism which is raised against the provision is that its
benefits are available only to female members of society. Even
though majority of victims of cyber stalking and offline stalking are
female, male victims are not something unheard of and in
unfortunate incidents like Megan Meier 26 another woman was
responsible for her suicide. Also, the range of actions which fall
under cyber stalking is more than the ones mentioned under
Section 354D. This Section covers only a part of cyber stalking and
to address the entire issue of cyber stalking depending on the facts
and circumstances of the case, we might have to use Section 67A of
Information Technology Act 2000, or Section 503 of IPC.

V. Conclusion

The 2013 amendment which resulted in Section 354 D of IPC, does

not address all aspects of cyber stalking. There is no attempt on the
part of the legislation to define the term cyber stalking or to explain
what amounts to monitoring the use of any electronic
communication. The legislation only addresses the aspect of breach
of privacy but does not address other aspects like communicating
threats or posting harassing messages in social media. It also does
not address the issue of third party harassment due to actions of
the Stalker. The constitutional validity of the exceptions provided
under the act is yet to be tested and it would be interesting to see
how the exceptions would be reconciled with the idea of right to
privacy under Article 21. The Indian provisions unlike the UK
legislation does not grant a remedy of restraining orders which
would have ensured better provisions to the victim especially
considering what happened to Swathi. 27 In short the 2013

26 Megan meier was an american teenager who committed suicide due to

cyber bullying through MySpace. It was later found the fake account was
created by her friends mother. See also, http://
www.meganmeierfoundation.org/megans-story.html.
27 Swathi was an Infosys techie who got hacked to death on June 24 2016

at Nungambakkam railway station for refusing to be friends with her

killer. The attacker Ramkumar was infatuated with her and stalked her
for months and finally killed her after she rejected him. He committed

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amendment is a step in right direction to tackle the issue of cyber

stalking, but it is wholly inadequate. It leaves too much burden on
the Judiciary to interpret and reinterpret the law to suit the
circumstances of each case and Section 354D alone cannot ensure
effective justice to the victim. It has to be used along with Section
69A of Information Technology Act or other relevant sections of
IPC like 499 and 503 to ensure complete justice to the victim. So in
my opinion, cyber stalking law in India has a lot of drawbacks to
overcome, to become an efficient piece of legislation.

suicide in Police custody; See also, http://www.deccanchronicle.com/

nation/crime/150716/saw-swathi-fell-in-love-stalked-her-says-
ramkumar.html.
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