M.C. Verghese Vs. T.J. Ponnan & ANR
 INSC 277 (13 November 1968)
13/11/1968 SHAH, J.C.
CITATION: 1970 AIR 1876 1969 SCR (2) 692
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
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
697 A--C; 698 A--B] Rumping v. Director of Public
Prosecutions,  3 All E.R. 256, (H.L.) applied.
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
Lily Thomas, for the appellant.
W.S. Barlingay and Ganpat Rai, for respondent
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
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) 120.Q.B.D. 635.
694 the order passed by the High Court
discharging Ponnan, this appeal is preferred with certificate granted by the
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
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
It must be remembered that the Indian Penal
Code exhaustively codifies the law relating to offences with which it deals and
(1)  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 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 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)  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
"(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 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.)
 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.