The main legal point established in the judgment is the interpretation and application of S.122 of the Indian Evidence Act in relation to the admissibility of communication between spouses in a defamation case.

1. 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 person does not amount in law to publication, since the husband and wife are one in the eye of the law. In so holding, he relied upon the judgment in Wennhak v. Morgan and Wife (1888) 20 QB. D. 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 person 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 Ponnan 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 Para.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 has voluntarily placed them, the imputations therein fell outside the court's cognizance and no charge under S.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 person by words either spoken or intended to be readier 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 person 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 QB. D. 635, Manistry, J, observed:

"the maxim and principle acted on for centuries is still in existence, viz