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SUPREME COURT OF INDIA
J.C. SHAH, V. RAMASWAMI AND A.N. GROVER, JJ.
M. C. Verghese, Appellant
Versus
T. J. Ponnan and another, Respondents.
Criminal Appeal No. 46 of 1967, D/- 13-11-1968.
Advocates appeared
Miss Lily Thomas, Advocate, for Appellant; Dr. W. S. Barlingay, Senior Advocate, (Mr. Gapat Rai, Advocate, with him) (for No. 1) and A. G,. Pudissery, Advocate (for No. 2), for Respondents.
Code of Criminal Procedure,1973 - Seciton 253 (2) - Indian Evidence Act – Section 122 - Divorce Act - Sections 18 & 19 - Application - Writing of defamatory matter - Married and wrote from Bombay letters to who was then residing with her parents which it is claimed contained defamatory imputations concerning Verghese - Verghese then filed a complaint in Court of District Magistrate, against charging him with offence of defamatio - Submitted an application raising two preliminary contentions-(1) that letters which formed sole basis of the complaint were inadmissible in evidence as they were barred by law or expressly prohibited by law from disclosure- held that a communication by a husband to his wife or by a wife to her husband of a matter defamatory of another persons does not amount in law to publication, since husband and wife are one in eye of law - Whether complainant in this case is an agent of wife because he has received the letter from wife and may be permitted to give evidence is a matter on which no opinion at this stage can be expressed - Held, One more question which was raised by counsel for appellant may be briefly referred to - It was urged that since matter reached this Court, has obtained a decree for nullity of marriage against Ponnan on ground of his impotency, and whatever bar existed during subsistence of marriage cannot now operate to render an incompetent witness - But argument is plainly contrary to terms of section 12 - When letters were written, they were husband and wife - Bar to admissibility in evidence of communications made during marriage attaches at time when communication is made and its admissibility will be adjudged in light of status at that date and not status at date when evidence is sought to be given in Court - Appeal allowed.
Certainly. Based on the provided legal document, here are the key points:
The case concerns a defamation complaint arising from letters written by a husband (Ponnan) to his wife (Rathi), which allegedly contained defamatory imputations concerning Verghese (!) (!) .
The primary legal issue revolves around whether communications between spouses during marriage can be considered "publication" under the law of India, which is essential for establishing the offence of defamation (!) (!) .
The initial order by the District Magistrate discharged the accused, Ponnan, on the grounds that such communications are legally privileged and do not amount to publication because husband and wife are regarded as one in the eye of law (!) (!) .
The Court of Session reversed this order, emphasizing that the doctrine of the common law that spouses are one does not fully apply in Indian law, and that evidence of such letters can be admissible in court (!) (!) .
The High Court of Kerala reinstated the original order, holding that the letters written by Ponnan to his wife do not constitute publication in law, and if such letters cannot be proved in court, the defamation charge cannot stand (!) .
It is clarified that for a criminal offence of defamation, there must be an act of publication with intent to harm or knowledge that harm would result; mere communication between spouses during marriage does not fulfill this requirement (!) (!) .
The law in India does not recognize the full application of the English common law principle that spouses are one person, and the Indian Penal Code's provisions are considered exhaustive in defining offences and exceptions related to defamation (!) (!) .
Section 122 of the Indian Evidence Act prohibits compelled disclosure of communications made during marriage, but this does not prevent the admissibility of evidence obtained through other lawful means or the use of such communications in proceedings, provided they are admissible under other laws (!) (!) .
The admissibility of evidence of such communications depends on the timing and the legal status of the marriage at the time the communication was made; if the marriage was subsisting, the privilege applies, but if the marriage was nullified or dissolved, the privilege may not apply (!) (!) .
The court emphasizes that the question of whether the complainant is an agent of the wife or whether the letters can be proved in court is a matter for trial, not for a preliminary order of discharge (!) .
The appeal is allowed, the order of the High Court is set aside, and the case is remanded for further proceedings consistent with these principles (!) .
Please let me know if you need further analysis or specific legal advice regarding this case.
Judgment
SHAH, J.: Rathi daughter of M. C. Verghese was married to T. J. Ponnan. On July 18, 1964, July 25, 1964 and July, 30, 1964, Ponnan wrote from Bombay letters to Rathi who was then residing with her parents at Trivandrum which it is claimed contained defamatory imputations concerning Verghese. Verghese then filed a complaint in the Court of the District Magistrate, Trivandrum. against Ponnan charging him with offence of defamation,. Ponnan submitted an application raising two preliminary contentions-(1) that the letters which formed the sole basis of the complaint were inadmissible in evidence as they were barred by law or expressly prohibited by law from disclosure; and (2) that uttering of a libel by a husband to his wife was not "publication" under the law of India and hence cannot support a charge for defamation, and prayed for an order of discharge, and applied that he may be discharged.
2. The District Magistrate held that a communication by a husband to his wife or by a wife to her husband of a matter defamatory of another persons does not amount in law to publication, since the husband and wife are one in the eye of law. In so holding, he relied upon the judgment, in Wennhak v. Morgan (1888) 20 QBD 635. He also held that the communication was privileged, and no evidence could be given in court in relation to that communication. He accordingly ordered that Ponnan be discharged under S. 253 (2), Code of Criminal Procedure.
3. In a revision application filed by Verghese before the Court of Session, the order was set aside and further enquiry into the complaint was directed. In the view of the learned Sessions Judge the doctrine of the common law of England that a communication by one spouse to another of a matter defamatory of another persons does not amount to publication has no application in India, and S. 122 of the Indian Evidence Act does not prohibit proof in the Court by the complainant of the letters written by Ponnay to his wife.
4. The case was then carried to the High Court of Kerala in revision. The High Court set aside the order of the Court of Session and restored the order of the District Magistrate. The High Court held that from the averments made in paragraphs 9 to 11 of the complaint it was clear that the writing of defamatory matter by Ponnan to his wife Rathi was not in law publication, and that "if the letters written by Ponnan to his wife cannot be proved in court either by herself directly or through her father in whose hands she had voluntarily placed them, the imputations therein fell outside the court s cognizance and no charge under Section 500, Indian Penal Code could be deemed to be made out". Against the order passed by the High Court discharging Ponnan, this appeal is preferred with certificate granted by the High Court.
5. It was assumed throughout these proceedings that the letters are defamatory of the complainant. Under the Indian Penal Code in order that an offence of defamation may be committed there must be making or publication of any imputation concerning any persons by words either spoken or intended to be read, or by signs or by visible representations, intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person. To constitute the offence of defamation there must therefore be making or publication of an imputation concerning any persons and the making or publication must be with intent to harm or knowing or having reason to believe that such imputation will harm, the reputation of such person. Unless there is publication there can be no offence of defamation committed.
6. In England the rule appears to be well settled that except in certain well defined matters, the husband and wife are regarded as one and in an action for libel disclosure by the husband of the libel to his wife is not publication. In Wennhak s case, (1888) 20 QBD 635, Manisty, J., observed :
"...the maxim and principle acted on for centuries is still in
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