M.C. Verghese v. T.J.

Poonam
[ (1969) 1 SCC 37]
-Somya Suman1

FACTS

Rathi, daughter of M.C. Verghese, was married to T.J. Poonam.

Poonam wrote 3 letters from Bombay, to Rathi, who was then residing with her parents at
Trivandrum, on 18th July, 1964, 25th July, 1964 and 3-th July, 1964.
It is claimed that in those letters there contained defamatory imputations2 concerning
Verghese.
When the matter reached to the apex court Rathi has obtained a decree for nullity of
marriage against Poonam on the ground of his impotency.

Verghese filed a complaint in the Court of District Magistrate, Trivandrum, against

Poonam, charging him with offence of defamation.

1. Matter before Court of District Magistrate, Trivandrum

Contentions:

o Poonam raised two important contentions that

i) 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
ii) 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.
o On the basis of these contentions, Poonam prayed for an order of discharge, and applied
that he may be discharged.

1
5th semester B.A.(Hons) LL.B.(Hons); NUSRL, Ranchi; Roll No:93; Section-A
2
the act of ascribing or attribution
Observations and Order:

o 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.
o The decision of the Magistrate was relied upon the judgment in Wennhak v. Morgan and
Wife3 and also held that the communication between Rathi and Poonam was privileged,
and no evidence could be given, in court in relation to that communication.
o The District Magistrate accordingly ordered that Poonam be discharged under section
253(2)4 of the Code of Criminal Procedure.5

A revision application was then filed by M.C. Verghese before the Court of Session
against the order of District Magistrate.

2. Matter before the Court of Session

Observations and Order:

o Learned Sessions Judge was of the view that 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 and has no application in India.
o And hence section 1226 of the Indian Evidence Act7 does not prohibit proof in the Court
by the complaint of letters written by Poonam to his wife.

3
[ (1888) 20 QBD 635 ]
4
The Magistrate may, in his discretion, convict the accused in his absence, on his plea of guilty and sentence him to
pay the fine specified in the summons, and the amount transmitted by the accused shall be adjusted towards that
fine, or where a pleader authorised by the accused in this behalf pleads guilty on behalf of the accused, the
Magistrate shall record the plea as nearly as possible in the words used by the pleader and may, in his discretion,
convict the accused on such plea and sentence him as aforesaid.
5
Code of Criminal Procedure, 1973
6
Communications during marriage.- 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 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.
7
Indian Evidence Act, 1872
 o Sessions Judge finally ordered to set aside the order of District Magistrate and further
enquiry into the complaint was directed.

The matter was then carried to The High Court of Kerala in revision.

3. Revision matter before the High Court of Kerala

Observations and Decision:

o It was observed that the writing of defamatory matter by Poonam to his wife Rathi was not
publication in the eyes of law.
o Also that if the letters written by Poonam to his wife could not be proved in court either by
herself directly or through her father, in whose hands she voluntarily placed them, the
imputations therein fell outside the court's cognizance and hence no charge under section
5008 of the Indian Penal Code9 could be deemed to be made out.
o The High Court set aside the order of Session's Court and restored the order of District
Magistrate.

The matter was then appealed to The Honorable Supreme Court with certificate granted
by High Court.

4. Appeal before Supreme Court

ISSUES

1. Whether the wife i.e. Rathi is to be considered as a competent witness?

2. Whether the letters addressed to Rathi by Poonam are admissible in evidence by virtue
of section 122 of the Indian Evidence Act?

8
Punishment for defamation.-- Whoever defames another shall be punished with simple imprisonment for a term
which may extend to two years, or with fine, or with both.
9
Indian Penal Code, 1860
ARGUMENTS

Arguments presented by respondents ( T.J. Poonam)

o The respondent relied on the rule practiced in England where it is 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.
o Matter of Wennhak v. Morgan and wife10 was again relied upon in which J. Manistry
observed the maxim and principle of husband and wife being one in the eyes of law.
o It was also argued that the letters addressed by Poonam 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 to his wife, and she is prohibited by law from
disclosing those letters, no offence of defamation could be made out.
o Also that if the complainant i.e. M.C. Verghese seeks to support his case only upon the
evidence of his Rathi (wife of accused i.e. Poonam), he shall be met with the bar of
section 122 of the Indian Evidence Act.
o The appellants argued that since Rathi has obtained a decree of nullity of marriage
against Poonam, whatever bar existed during the subsistence of marriage cannot now
operate to render Rathi an incompetent witness. In response to this, the respondents relied
on the case of Moss v. Moss11 in which 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 incompetency continues after a decree absolute for divorce or a
decree of nullity (where the marriage was annulled was merely voidable) in respect of
matters arising during overtime.
o It was argued that when the letters were written by Poonam 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

10
[ (1888) 20 QBD 635]
11
[ (1963) 2 QBD 829]
 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.

Arguments presented by appellants ( M.C. Verghese)

o Contrary to the argument of the respondent that according to rule of England husband and
wife are one and hence bar of section 122 of Indian Evidence Act won't apply, the
appellants contended that the above mentioned rule has not been adopted in its full force
under Indian system of law and certainly not in our criminal jurisprudence.
o Case of Queen Express v. Butchi12 was cited in which it was held that there is no
presumption of law that the husband and wife 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.
o Appellant also relied upon the case of Abdul Khadar v. Taib Begum13 in which also it was
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.
o Also that the Indian Penal Code exhaustively codifies the law relating to offences with
which it deals and the rules of common law cannot be restored to for inventing
exemptions which are not expressly enacted.
o It was submitted that 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 illustration to section 49914 the statements are privileged only when they
are made in good faith, and not otherwise.

12
ILR 17 Mad 339
13
AIR 1957 Mad 339
14
Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or
publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such
imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that
person.
First Exception.- Imputation of truth which public good requires to be made or published.- It is not defamation to
impute anything which is true concerning any person, if it be for the public good that the imputation should be made
or published. Whether or not it is for the public good is a question of fact.
Second Exception.- Public conduct of public servants.- It is not defamation to express in good faith any opinion
whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his
character, so far as his character appears in that conduct, and no further. Third Exception.- Conduct of any person
touching any public question.- It is not defamation to express in good faith any opinion whatever respecting the
 o It was also submitted that except where the spouse to whom the communication is made
is a witness and claims privilege for disclosure under the Criminal Evidence Act, 1898(
the then section 122 of the Indian Evidence Act) , evidence as to communications
between husband and wife during marriage is admissible in criminal proceedings.
o It was also submitted that when the matter reached this court, Rathi has obtained a decree
for nullity of marriage against Poonam 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.

OBSERVATIONS

o Apex Court first observed the definition of defamation that as per Indian Penal Code,
offence of defamation may be committed if there is some publication or alike 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.
o The Court observed that it is not necessary to record any final opinion on the issues
because, such inquiry has to be made when the complaint is tried before the Magistrate.
o Section 122 of the Indian Evidence Act was interpreted as to consist of 2 branches- i) that
a married person shall not be compelled to disclose any communication made to him
during marriage by his spouse; and ii) 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.
o Court also observed that whether M.C. Verghese will be able to prove the letters to be
defamatory 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 i.e. when the trial is
going in apex court.

conduct of any person touching any public question, and respecting his character, so far as his character appears in
that conduct, and no further. Fourth Exception.- Publication of reports of proceedings of courts- It is not defamation
to publish a substantially true report of the proceedings of a Court of Justice, or of the result of any such
proceedings.
 o And finally the Court also observed that nothing in section 1815 and 1916 of the Divorce
Act17 shall effect the jurisdiction of the High Court to make decree of nullity of marriage
on the ground that the consent of either party was obtained by fraud or force.

JUDGEMENT

Considering all the pros and cones of the case, Supreme Court on the basis of the above
mentioned observations allowed the appeal and set aside the order passed by the High Court. It
was directed that the proceedings will be remanded for trial to the District Magistrate according
to law.

CRITICAL ANALYSIS

With due consideration of the facts of the case, the arguments presented from both the sides and
with due respect to the judgment pronounced, I am of the view that section 122 of the Indian
Evidence Act should be given utmost priority while deciding the present case. Considering and
interpreting the facts of the case, the matter should have been decided as according to section
122 of the Indian Evidence Act. I believe that a married person shall not be compelled to disclose
any communications made to him during marriage by his spouse and that the married couple
shall not be permitted to disclose by giving evidence in court the communication, unless the
person who made it, or his representative in interest, consents thereto.

This might not be applicable to each and every case subject to certain conditions and those
conditions depend upon the facts and circumstances of every case which varies accordingly.

15
Petition for decree of nullity.- Any husband or wife may present a petition to the District Court or to the High
Court, praying that his or her marriage may be declared null and void.
16
Grounds of decree.- Such decree may be made on any of 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 of 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 on the ground that the consent of either party was obtained by force or fraud.

17
Indian Divorce Act, 1869
Section 122 of the Indian Evidence Act might not be applicable if the case is of such a nature.
But the present case is entirely personal in nature and the communications is also between
husband and wife which is again private. Those communications does not constitute rarest of the
rare cases and it is even not affecting the public at large neither it is harmful in any manner.

Ambit and scope of section 122 of the Evidence Act must be widened and should be interpreted
on a wider horizon.

And hence by virtue of provisions of section122 of the Indian Evidence Act and also by virtue of
considering the private relation of marriage, Rathi should not be considered as a competent
witness and any statement given by her in such frivolous case should not be considered as
relevant and admissible.

The present case was initiated on no reasonable grounds. The matter taken up by Verghese is
totally baseless and has no grounds. But since such frivolous case was filed, the decision should
ultimately rest on section 122 of the Indian Evidence Act and as such Poonam should not be
charged and convicted for the offence of committing defamation.