Rathi, daughter of M. C. Verghese, was married to T. J. Poonan. On July 18, 1964, July 25, 1964 and July 30, 1964, Poonan 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 Poonan charging him with offence of defamation.
Poonan 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.
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 law. In so holding, he relied upon the judgment in Wennhak v. Morgan and Wife [1888 QB]. 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 Poonan be discharged under Section 253(2) Code of Criminal Procedure.
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 Poonan to his wife Rathi was not in law publication, and that “if the letters written by Poonan 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 Section 500, Indian Penal Code could be deemed to be made out”.
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 ispublicationthere can be no offence of defamation committed.
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.
Verghese has complained that he was defamed by the three letters which Poonan wrote to Rathi. Poonan, however, says that the letters addressed by him to his wife are not except with his consent – admissible in evidence by virtue of Section 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.
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, 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 District Magistrate could pass any order discharging Poonan. Section 122 of the Evidence Act only prevents disclosure in evidence in court of the communication made by the husband to the wife. If Rathi appears in the witness box to giving evidence about the communications made to her by her husband, prima facie the communications may not be permitted to be deposed to or disclosed unless Poonan consents. That does not, however, mean that no other evidence which is not barred under Section 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 [1962 All ER], 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, 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 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 Section 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.
It was urged that since the matter reached this Court, Rathi has obtained a decree for nullity of marriage against Poonan 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 Section 122. If the marriage was subsisting at the time when the communications were made, the bar prescribed by Section 122 will operate.
In Moss v. Moss [1963 QB], 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 in respect of matters arising during overtime.
When the letters were written by Poonan to Rathi, they were husband and wife. The bar to 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 that 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. The proceedings will be remanded for trial to the District Magistrate according to law.