Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
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]
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
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.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
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