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PETITIONER: M.C. VERGHESE

       Vs.

RESPONDENT: T.J. PONNAN & ANR.

DATE OF JUDGMENT: 13/11/1968

BENCH: SHAH, J.C. BENCH: SHAH, J.C. RAMASWAMI, V. GROVER, A.N.

CITATION:  1970 AIR 1876            1969 SCR  (2) 692

ACT: Evidence  Act (1 of 1872), s. 122--Letters from  husband  to wife containing defamatory matter of third  persons--Husband prosecuted   to  defamation--Whether letters can  be  proved against   husband--Subsequent  declaration  of  nullity   of marriage--If removes the bar against disclosure

HEADNOTE: The  first respondent wrote letters to his wife who  is  the daughter c the appellant.  The letters contained  defamatory imputations   concerning  the appellant.  The  letters  were handed  over to the  appellant  and he filed a complaint for defamation  against  the first respondent.   The  Magistrate held  that  a communication between spouses of a  matter  de (amatory  of another did not amount to publication and  that no  evidence  could  be  given of it under  s.  122  of  the Evidence  Act,  1872,  against  the  first  respondent,  and discharged  him.  The Court of Session set aside  the  order but  the High Court restored it.  While the  appeal  against the order of discharge was pending in this Court a decree of nullity of marriage was passed against the first  respondent on the ground of his impotency.     HELD:  If the appellant sought to support his case  only upon  the evidence of the wife of the first  respondent,  8. 122 of the Evidence Act would be a bar.  Further a  marriage with  a person important at the time of marriage and at  the time of institution of proceedings for nullity is under  the Indian Divorce Act not ab initio void; it is valid till  the decree   of  nullity  is  pronounced.   Therefore,  if   the defamation  case were  to proceed  and  ’the  wife’   should appear   as   a  witness   to   give  evidence   about   the communication   made   to  her by her   husband  (the  first respondent),  the  communication  could not  be  deposed  to unless  the  first  respondent  consented  because,  if  the marriage  was subsisting at the time when the  communication was  made the bar prescribed by s. 122 would  operate.   But the   letters  were  in  appellant’s  possession  and   were available for being tendered in evidence, and he could prove the  letters  in any other manner.  Therefore,  the  accused (first  respondent) should not have been discharged. [696 H; 697 A--C; 698 A--B]

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   Rumping   v. Director of Public Prosecutions,  [1962]  3 All  E.R.  256, (H.L.) applied.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 46  of 1967.     Appeal  from  the judgment and order dated  November  1, 1966 of the Kerala High Court in Criminal Revision  Petition No. 191 of 1966. Lily Thomas, for the appellant. W.S. Barlingay and Ganpat Rai, for respondent No. 1. A.G. Pudissery, for respondent No. 2. 693 The Judgment of the Court was delivered by     Shah, J. Rathi daughter of M.C. Verghese was married  to T.J.  Ponnan.  On July 18, 1964, July 25, 1964  and  July30, 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 fan order of discharge, and applied that he may be discharged.     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(1).  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.     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.     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  s. 500 Indian Penal Code could be deemed to  be  made out".  Against (1)[1888] 120.Q.B.D. 635.

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694 the order passed by the High Court discharging Ponnan,  this appeal  is  preferred with certificate granted by  the  High Court.     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  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 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.     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(1) Manisty, J., observed:       "   ......   the  maxim and  principle  acted  on  for centuries  is still in existence viz., that as regards  this Case, husband and wife ’are in point of law one person." The  learned Judge examined the foundation of the  rule  and stated that it was, after, all, a question of public  policy or, social policy.     But the rule that husband and wife are one in the eye of law has not been adopted in its full force under our  system of law and certainly not in our criminal jurisprudence.     In  Queen Empress v. Butch(2) it was held that there  is no  presumption of law that the wife and husband  constitute one person in India for the purpose of the criminal law.  If the  wife, removing the husband’s property from  his  house, does so  with dishonest intention, she is guilty of theft.     In  Abdul Khadar v. Taib Begum(5) the Madras High  Court again held that there is no presumption of law in India that a wife and husband constitute one person for the purpose  of criminal law, and therefore the English common law  doctrine of absolute privilege cannot prevail in India.     It  must  be  remembered  that  the  Indian  Penal  Code exhaustively  codifies  the law relating  to  offences  with which it deals and (1) [1888] 20 Q.B.D. 635. (2) I.L.R. 17 Mad. 401. (3) A.T.R. 1957 Mad. 339. 695      the rules of the common law cannot be  resorted  to for inventing exemptions which are not expressly enacted.     In Tiruvengadda Mudali v. Tripurasundari Ammal(1) a Full Bench of the Madras High Court observed that the  exceptions to s. 499 I.P. Code must be regarded as exhaustive as to the cases  which they purport to cover ,and recourse  cannot  be had  to  the  English  common law to  ’add  new  grounds  of exception  to  those  contained in the  statute.   A  person making  libelous  statements     in his complaint  filed  in court  is not absolutely protected in a criminal  proceeding for  defamation,  for under the Eighth  Exception  ,and  the illustration  to s. 499 the statements are  privileged  only when  they  are  made  in good  faith.  There  is  therefore authority  for  the  proposition  that  in  determining  the criminality of an act under the Indian Penal Code the courts will not extend the scope of special exceptions by resorting

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to the rule peculiar to EngLish common law that the  husband and wife are regarded as one.     But  we  do not deem it necessary to  record  any  final opinion  on  this question because, in  our  judgment.  this enquiry  has to be made when the complaint is  tried  before the Magistrate.     Verghese has complained that he was defamed by the three letters which Ponnan wrote to Rathi  Ponnan,  however,  says that   the  letters  addressed  by  him  to  his  wife   are not--except  with  his consent--admissible  in  evidence  by virtue of s. 122  of the Indian Evidence Act, and since  the only publication pleaded is publication to his wife and  she is  prohibited  by  law from disclosing  those  letters.  no offence  of  defamation could be made out.   So  stated  the proposition  is in our judgment, not  sustainable.   Section 122  of the Indian Evidence Act falls in Ch. IX which  deals with  evidence of witnesses in proceeding before the  court. That section provides:                      "No  person who is or has been  married               shall    be   compelled   to   disclose    any               communication made  to  him   during  marriage               by  any  person  to whom he  is  or  has  been               married;  nor shall be permitted  to  disclose               any such communication. unless the person  who               made  it, or his representative  in  interest,               consents,  except  in  suits  between  married               persons, or proceedings in which  one  married               person  is prosecuted for any crime  committed               against the other." The  section  consists of two branches--(1) that  a  married person shall not be compelled to disclose any  communication made to him during marriage by his spouse; and (2) that  the married  person shall not except in two special  classes  of proceedings  be permitted to disclose by giving evidence  in court the communication, (1) I.L.R. 49 Mad. 728. 696 unless  the  person who made it, or  his  representative  in interest, consents thereto.     A  prima  facie  case was set up  in  the  complaint  by Verghese.  That complaint has not been tried and we  do  not see  how,  without  recording  any  evidence,  the   learned District Magistrate could pass any order discharging Ponnan. Section 122 of the Evidence Act only prevents disclosure  in giving  evidence in court of the communication made  by  the husband to the wife.  If Rathi appears in the witness box to give evidence ’about the communications made to her husband, prima  facie the communications may not be permitted  to  be deposed  to or disclosed unless Ponnan consents.  That  does not,  however,  mean  that no other evidence  which  is  not barred under s. 122 of the Evidence Act or other  provisions of the Act can be given.     In  a recent judgment of the House of Lords  Rumping  v. Director  of Public Prosecutions(1), Rumping the mate  of  a Dutch ship was tried for murder committed on board the ship. Part  of the evidence for the prosecution ,admitted  at  the trial consisted of a letter that Rumping had written to  his wife in Holland which amounted to a confession. Rumping  had written the letter on the day of the killing, and had handed the  letter  in a closed envelope to a member  of  the  crew requesting him to post it as soon as the ship arrived at the port outside England.  After the appellant was arrested, the member of the crew handed the envelope to the captain of the ship  who  handed it over to the police. The member  of  the crew,  the  captain and the translator of  the  letter  gave

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evidence  at  the  trial, but the wife  was  not  called  as witness.   It  was held that the letter  was  admissible  in evidence.  Lord  Reid,  Lord Morris  of  Borth-Y-Gest,  Lord Hodson  and Lord Pearce were of the view that at common  law there  had  never  been a separate principle  or  rule  that communications between a husband and  wife  during  marriage were  inadmissible  in  evidence on  the  ground  of  public policy.   Accordingly  except where the spouse to  whom  the communication is made is a witness and claims privilege from disclosure under the Criminal Evidence Act. 1898,  (of which the  terms are similar to s. 122 of the Indian Evidence  Act though not identical), evidence as to communications between husband  and wife during marriage is admissible in  criminal proceedings.     The question whether the complainant in this case is  an agent  of the wife because he has received the letters  from the  wife and may be permitted to give evidence is a  matter on  which  no opinion at this stage can  be  expressed.  The complainant  claims that he has been defamed by the  writing of  the letters.  The letters are in his possession and  are available  for being tendered in evidence. We see no  reason why inquiry into that complaint should, on the (1) [1962] All E.R. 256. 697 preliminary  contentions  raised,  be  prohibited.  If   the complainant seeks to support his case only upon the evidence of the wife of the accused, he may be met with the bar of s. 122   of  the Indian Evidence Act.  Whether he will be  able to  prove the letters in any other manner is a matter  which must  be left to be determined at the trial ’and  cannot  be made the subject-matter of an enquiry at this stage.     One  more question which was raised by counsel  for  the appellant  may be briefly referred to.  It was  urged’  that since  the matter reached this Court, Rathi has  obtained  a decree for nullity of marriage ’against Ponnan on the ground of  his  impotency,  and whatever  bar  existed  during  the subsistence  of  the marriage cannot now operate  to  render Rathi  an incompetent witness.  But the argument is  plainly contrary  to  the  terms of s. 122.   If  the  marriage  was subsisting  at the time when the communications  were  made, the  bar  prescribed ’by s. 122 will operate.   In  Moss  v. Moss(1),  it  was held that in criminal  cases,  subject  to certain  common  law and statutory exceptions, a  spouse  is incompetent  to  give evidence against the other,  and  that incompetence  continues after a decree absolute for  divorce or  a  decree of nullity (where the  marriage  annulled  was merely  voidable)  in  respect  of  matters  arising  during coverture.     Counsel  for the appellant however urged that  the  rule enunciated  in Moss’s case(1) has no application  in   India because under ss. 18 & 19 of the Divorce Act no  distinction is  made  between marriage void and voidable.  By  s.  18  a husband  or  a wife may present a petition  for  nullity  of marriage:to the appropriate court and the court has under s. 19 power to make the decree on the following grounds:                  "(1)  that the respondent was  impotent  at               the  time of the marriage ’and at the time  of               the institution of the suit;                   (2)  that  the  parties  are  within   the               prohibited  degrees of consanguinity  (whether               natural or legal) or affinity;                   (3  ) that either party was a  lunatic  or               idiot at  the time of the marriage;                   (4)  that  the former husband or  wife  or               either  party  was living at the time  of  the

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             marriage,  and the marriage with  such  former               husband or wife was then in force.                        Nothing in this section shall  affect               the  jurisdiction       of the High  Court  to               make decrees of nullity of marriage               (1.) [1963] 2 Q.B.D. 829.               698               on the ground that the consent of either party               was obtained by force or fraud."               Marriage with the respondent who was  impotent               at the time of the marriage  or at the time of               the  institution of the suit is not ab  initio               void:  it is voidable.  As stated in Latey  on               Divorce, 14th Edn., at p. 194, Art. 353:                   "Where impotence is proved the ceremony of               marriage  is void only on the decree  absolute               of  nullity, but then it is void ab initio  to               ,all intents and purposes’. Such a marriage is               valid  for all purposes, unless a decree    of               nullity  is  pronounced during  the  life-time               of  the parties." When  the  letters were written by Ponnan  to  Rathi,   they were  husband  and wife.  The bar to  the  admissibility  in evidence of communications made during marriage attaches  at the   time   when  the  communication  is  made,   and   its admissibility will be adjudged in the light of the status at the  date  and not the status at the date when  evidence  is sought to be given in court.     We  are, therefore, of the view that the appeal must  be allowed  and the order passed by the High Court  set  aside. The proceed Lugs will be remanded for trial to the  District Magistrate according to law. V.P.S.                                       Appeal allowed. 699