iminal 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 of 1966
Lily Thomas for the appellant
WS Barlingay and Ganpat Rai for respondent No 1
AG Pudissery for respondent No 2
693 The Judgment of the Court was delivered by Shah J
Rathi daughter of MC Verghese was married to TJ 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 vs Morgan and Wife1
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 section 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 section 122 of the Indian Evidence Act does not prohibit proof in the Court by the complainant 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 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 section 500 Indian Penal Code could be deemed to be made out
Against 11888 120QBD 635
694 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 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 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 case1 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 vs Butch2 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 vs Taib Begum5 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 in India
It must be remembered that the Indian Penal Code exhaustively codifies the law relating to offences with which it deals and 1 2 ILR 3 ATR 695 the rules of the common law cannot be resorted to for inventing exemptions which are not expressly enacted
In Tiruvengadda Mudali vs Tripurasundari Ammal1 a Full Bench of the Madras High Court observed that the exceptions to section 499 IP 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 section 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 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
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 ILR 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 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 vs Director of Public Prosecutions1 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 section 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 1 697 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 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
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 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 vs Moss1 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 case1 has no application in India because under sections 18  19 of the Divorce Act no distinction is made between marriage void and voidable
By section 18 a husband or a wife may present a petition for nullity of marriageto the appropriate court and the court has under section 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 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 1 698 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 article 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
VPS Appeal allowed


Summary:
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 section 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 section 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 H 697 A C 698 A B Rumping vs Director of Public Prosecutions applied