# ' M. C. VERGHESE v. T. J'. PONNAN & ANR

- **Citation:** [1969] 2 S.C.R. 692
- **Court:** Supreme Court of India
- **Decided:** 1968-11-13
- **Case number:** Criminal Appeal No. 46 of 1967
- **Bench:** C. Shah, V. Ramaswami, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-c-verghese-v-t-j-ponnan-anr-4583
- **Pages:** 7

## Headnote

B
Evidence Act (1 of 1872), s. 122-Letters from husband to wife con-
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taining defamarory matter of third
persons-Hu.rband prosecuted
for
defamation~Whether letters can be proved against husband-Subsequent
declaration of nullity of marriage-If removes the bar against disclosure.
The first respondent wrote le.tiers to his wife who is the daughter of
the appellant.
The letters contained defamatory imputations
concerning the appellant.
The letters were handed over to the appellant and
he filed a complaint fot defamation against the first resirondent. The
Magistrate held that a communication between spouses of a matter de.-
famatory 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 imp'Otency.
HELD : If the appellant sought to support his case only upon the
evidence of the wife of the first respondent, s. 122 of the Evidence Act
would be a bar.
Further, a marriage with a person impotent 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 resoondent consented. because. if the marriage was subsisting at
thetime when the communication was made the bar prescribed by s. 122
would operate.
But the 1etters were in apoellant's possession and were
available for being tendered in evidence, an.cl he could prove the letters
in any other manner.
Therefo'e. the accused (first respondent) should
not have been discharged. [696 H; 697 A~; 698 A-Bl
Rumvin~ v. Director of Public Prosecutions, [1962] 3 All E.R.
256,
(H.L.) applied.

## Text

'
M. C. VERGHESE
A
v.
T. J'. PONNAN & ANR.
November 13, 1968
(J, C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.]
B
Evidence Act (1 of 1872), s. 122-Letters from husband to wife con-
,i.l
taining defamarory matter of third
persons-Hu.rband prosecuted
for
defamation~Whether letters can be proved against husband-Subsequent
declaration of nullity of marriage-If removes the bar against disclosure.
The first respondent wrote le.tiers to his wife who is the daughter of
the appellant.
The letters contained defamatory imputations
concerning the appellant.
The letters were handed over to the appellant and
he filed a complaint fot defamation against the first resirondent. The
Magistrate held that a communication between spouses of a matter de.-
famatory 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 imp'Otency.
HELD : If the appellant sought to support his case only upon the
evidence of the wife of the first respondent, s. 122 of the Evidence Act
would be a bar.
Further, a marriage with a person impotent 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 resoondent consented. because. if the marriage was subsisting at
thetime when the communication was made the bar prescribed by s. 122
would operate.
But the 1etters were in apoellant's possession and were
available for being tendered in evidence, an.cl he could prove the letters
in any other manner.
Therefo'e. the accused (first respondent) should
not have been discharged. [696 H; 697 A~; 698 A-Bl
Rumvin~ v. Director of Public Prosecutions, [1962] 3 All E.R.
256,
(H.L.) applied.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
46 of 1967.
Appeal from the iudgment and' order dated November 1, 1966.
of tbe 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.
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M. C. VERGHESE v. T. J, PONNAN (Shah, J.)
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 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.
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 ,Jaw 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(').
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 En~land 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 complaina111t 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 Sess~on
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 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, 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 offenc<~ 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 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.
It must be remembered that the Indian Penal Code exhaustively codifies the law relating to offences with which it deals and
(ll [1888) 20 Q.B.P. 635.
~
(2) I.L.R. 17 MM!, 401.
(3) A.J.R. 1957 Mad. 339,
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M. C. VERGHESE V. T. J. PONNAN (Shah, J.)
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(') '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 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 bv 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 onlv publication pleaded is
publication to his wife. and she is prohibited bv 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 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 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 anv communication made to
him during marriage by his spouse; and (2) that the married person shall not exceot In two special classes of proceedings be permitted to disclose by giving evidence in Court the communication,
(l) I.L.R. 49 Mad. 728.
696
SUPREME COURT REPORTS
[1969] 2 S.C.R.
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 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 communication made by the husband to the wife. If Ra(hi 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('), 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 captain 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 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 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
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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.
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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 appeliant 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 can·
not 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('), 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(') 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
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the marriage and at the time of the institution of
the suit;
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(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 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.
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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 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, uniess a decree
of nullity is pronounced during the me-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 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 proceedings will be remanded for trial to the District Magistrate according
to law.
V.P.S.
Appeal allowed.
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