M. C. VERGHESE v. T. J'. PONNAN & Anr.

The case was then carried to the High Court of Kerala in revi sion. The High Court set aside the order of the Court of Sess~on The High and restored the order of the District Magistrate. Court held that from the averments made in paragraphs 9 to 11 of the complaint it wa• clear that the writing of de!a~atoty matter by Ponnan to his wife Rathi was not in law pubhcat10n, and th~t "if the letters written by Ponnan to his wife cannot be J2roved m court either by herself directly or through h~ fathe~, m who~e hands slie liad voluntarily placed them,. tlie !Il1ptitat1011s tlierem fel! outside the court's cognizance and no cliarge under s. ~00 Indian Penal Code could be deemed to be made out"; Agamst (i) [1888J 20 Q.B.D. 63S. ::- , 694 SUPREME COURT REPORTS • [1969] 2 $.C.R. the order passed by the High Court discharging Ponnan, 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 offenc<~ of defamation may be committed there must be making or publication of any imputation concern ing any person by words either spoken or intended to be read, or by signs or by visible representations, intending to harm, or know ing or having reason to believe that such imputation will harm, the reputation of such person. To constitute the offence of defa mation there must therefore be making or publication of an impu tation 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 ) Manisty, J., observed: In Wennhak's case(1 is not publication.

" ...... the maxim and principle acted on for cen- turies 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 criminaJ jurisprudence. In Queen Empress v. Butch(') it was held that th.ere is no presumption of Jaw that the wife and husband constitute one person in India for the purpose of the criminal Jaw. 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(•) the Madras High Court again held that tl1ere is no presumption of law in India that a wife and husband co::istitute one person for the purpose of criminal law, and therefore the English common law doctrine of absolute privilege cannot prevail in India. ~ - A B c D E F G It must be remembered that the Indian Penal Code exhaus tively codifies the law relating to offences with which it deals and H (ll [1888) 20 Q.B.P. 635. ~ (3) A.J.R. 1957 Mad.

339, (2) I.L.R. 17 MM!, 401. M. C. VERGHESE V. T. J. PONNAN (Shah, J.) 695 A the rules of the common law cannot be resorted to for inventing exemptions which are not expressly enacted. B c In Tiruvengadda Mudali v. Tripurasundari Ammal(') '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 En<rlish common law to add new grounds of exception to those contained in the statute. A person making libellous statements in his complaint filed in court is not absolutely protected in a criminal proceeding for defamation, for under the Eighth Excep tion and the illustration to s. 499 the statements are privileged only when they are made in good faith. There is therefore autho rity 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.

D 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 bv the three letters which Ponnan wrote to Rathi. Ponnan, however, that the letters addressed by him to his wife are not-except with his consent-admissible in evidence by virtue of s. 122 of Indian Evidence Act. and since the onlv publication pleaded is publication to his wife. and she is prohibited bv law from disclos ing those letters, no offence of defamation could be made out. So stated, the proposition is. in our judgment, not sustainable. Sec tion 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 com to him pelled to disclose any communication made during marriage by anv person to whom he is or has been married: nor shall he be permitted to disclose any such communication. unless the person who made it, or his representative in interest, consents, except in suits be tween 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 anv communication made to him during marriage by his spouse; and (2) that the married per son shall not exceot In two special classes of proceedings be per mitted to disclose by giving evidence in Court the communication, (l) I.L.R. 49 Mad. 728. E F G H • ·'· 696 SUPREME COURT REPORTS [1969] 2 S.C.R. unless the person· who made it, or· his representative in interest, consents thereto. A A prima facie case was set up in the complaint by Verghese. That complaint has not been tried ait}d 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 commu If Ra(hi appears in nication made by the husband to the wife. the witness box to give evidence about the communications made to her husband, prima facie the communications may not be per mitted 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('), 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 amounte_d to a confession. Rumping had written the letter on the day of the killing, and had handed the Jetter 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 cap tain of the ship who handr.d 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 com muniCation is made is a witness and claims privilege from dis closure 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. . . B c D E F G • The auestion whether the complainant in this case is an agent of the wife because he ha, 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 writirtg of the letters. The letters are · H in his ~ossession and rtr~ av~ilaJ;>le for bei.ng ten~ered ill evidence. We see n<r reason why mqmry into that complaint sho\Ild, on the (I) [1962] 3 All E.R. 256. A B c D E F G H M. C. VER.GHESE v. T. J, PQNNAN (Shah, J.) 697 preliminary cont~tions raise\!, be prohibited. If the (;Qlllplainaµt 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 appel It was urged that since the matter iant may be briefly referred to. 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 can· not now operate to render Rathi an incompetent witness.

But the argument is plainly contrary to the terms of s. 122. If the mar riage was subsisting at the time when the communications were In Moss v. made, the bar prescribed by s. 122 will operate. Moss('), it was held that in criminal cases, subject to certain com mon 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 enun ciated in Moss's case(') has no application India because under ss. 18 & 19 of the Divorce Act no distinction is made be tween 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 time of the marriage; ( 4) that th~ former hu?band or wife or either party was !1V1ng at the time of the marriage, and the marriage v.ith 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 SUPREME COURT REPORtS (1969) 2 S.C.R. on the ground that the consent of either party was ob tained 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 mar riage 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, uniess a decree of nullity is pronounced during the me-time of 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 ailld not the status at the date when evidence is sough~ 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 ings will be remanded for trial to the District Magistrate according to law. V.P.S. Appeal allowed. A B c -I D • ' . - •