IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:28.06.2011 CORAM THE HONOURABLE MS. JUSTICE R.MALA CRL.R.C.No. 784 of 2009 Geetha .. Petitioner/Complainant ..Vs.. A.K.Dhamodharan .. Respondent/Accused Prayer:- This Criminal Revision Case is filed under Sections 397 read with 401 of Cr.P.C., to revise the order dated 07.07.2009, passed in Crl.M.P.No.2714 of 2008, on the file of the Judicial Magistrate's Court No.I, Tindivanam. For Petitioner : Mr.R.Thanjan For Respondent : Mr.S.Saravana Kumar ORDER This criminal revision has been preferred against the dismissal of the private complaint filed under Section 200 Cr.P.C. by the petitioner/wife against the respondent/husband for the offence under Sections 499, 500 and 501 I.P.C. 2.The learned counsel for the petitioner/wife submitted that both the petitioner/wife and the respondent/husband fell in love and their marriage was performed on 17.02.1989. In Thindivanam, they purchased a house property in the name of the petitioner/wife. The respondent/husband forced the petitioner/wife to transfer the property stands in her name, thereby linking the friend of complainant's elder son. In pursuance of the same, the respondent/husband filed H.M.O.P.No.56/2008, on the file of Sub- Court, Tindivanam, for dissolution of marriage on the ground of adultery. He also filed a suit in O.S.No.59/2008 before the Sub- Court, Tindivanam, for declaration of title to the suit property (i.e.) the house property, which stands in the name of the petitioner/wife. So the petitioner/wife preferred private complaint, but the learned Judicial Magistrate No.I, Tindivanam, has not considered the aspects in proper perspective, dismissed the private complaint stating that no prima facie case has been made out. Furthermore, the learned Magistrate misconstrued Fifth Exception of https://hcservices.ecourts.gov.in/hcservices/ Section 499 I.P.C. is applicable to the case. Hence, he prayed for setting aside the order of dismissal of private complaint and for allowing of this revision. 3.The learned counsel for the respondent submitted that the respondent herein filed H.M.O.P.No.56/2008 for dissolution of marriage on the ground of adultery and also filed a suit in O.S.No.59/2008 for declaration of title to the suit property and both were pending before the Sub-Court, Tindivanam. Since the cases are subjudice, the petitioner can invoke exception under Section 499 I.P.C. That factum has been correctly considered by the learned Magistrate and came to the correct conclusion that no prima facie case has been made against the respondent to take private complaint. So the dismissal order passed by the Court below does not warrant any interference and therefore, he prayed for the dismissal of the revision. 4.Considered the submissions made on both sides and the materials available on record. 5.Admitted facts are the revision petitioner and the respondent are husband and wife. The respondent/husband herein has filed H.M.O.P.No.56/2008 for divorce on the ground of adultery and cruelty under Sections 13(1)(i) and 13(1)(i)(a) of Hindu Marriage Act and the copy of the petition was marked as Ex.P1. The respondent/husband also filed a suit in O.S.No.59/2008 for declaration of title and the copy of the plaint was marked as Ex.P2. Before preferring private complaint, the petitioner/accused issued Ex.P3 notice to the respondent/husband and the postal acknowledgement card was marked as Ex.P4. The revision petitioner examined herself as P.W.1 and in her evidence, she stated that without any evidence, her husband pleaded that she is having adultery life with one Anju alias Prakash, who is none other than friend of her elder son. Since the respondent/husband filed a suit with false and perverse allegations by making derogatory statements against the petitioner/accused, she preferred private complaint. 6.On perusal of the divorce petition under Ex.P1, it was specifically mentioned that the wife is leading adultery life with Anju alias Prakash, who was added as second respondent therein. In the suit also, the respondent/husband referred to her wife is leading adultery life with Anju alias Prakash. 7.At this juncture, it is appropriate to consider Section 499 I.P.C. , which is extracted as follows: "499-Defamation: 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 https://hcservices.ecourts.gov.in/hcservices/ believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, of defame that person. Explanation 1-It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2-It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3-An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 4-No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful." As per chapter XXI, Sections 499, 500, 501 and 502 I.P.C., provide protection to a man's reputation. Reputation is nothing but opinion of others about himself. There will be no defamation unless there is publication. There are certain exceptions of defamation. Truth is important defence for defamation. 8.Now it is appropriate to incorporate Fifth Exception of Section 499 I.P.C., which is as follows: "Fifth Exception:-Merits of case decided in Court conduct of witnesses and others concerned:--It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further." Here, it is pertinent to note that admittedly, the case is subjudice and it is yet to be disposed of. It is confined to comments on cases which are decided by Court and not to those cases which are subjudice. It does not cover pending matters in Court. Pending matters are immune from comments. Considering the same, the respondent/husband herein has filed a divorce petition on the ground https://hcservices.ecourts.gov.in/hcservices/ of adultery and cruelty. He also filed a suit and made an allegation against her wife, stating that she is leading adultery life with one Anju @ Prakash, who is none other than friend of her elder son. He also pleaded that it is an illegal act and the case is yet to be disposed of. In such circumstances, whether the fact has been true or not is yet to be decided. Hence, whether the statement is true or defamatory and that has been decided after the disposal of the case. In such circumstances, I am of the opinion, as per the dictum of 1987 (3) SCC 34, pending matters are immune from comments made by the parties. The averments mentioned in the pleadings filed before the judicial forum is not coming under the purview of Section 499 I.P.C., wherein the proceedings are pending and subjudice. Hence, there is no prima facie case has been made out for taking cognizable offence under Sections 499, 500, 501 and 502 I.P.C. against the respondent/husband. So the learned Magistrate has considered all the aspects in proper perspective and came to the correct conclusion and hence, the criminal revision is dismissed as devoid of merits. 9.In fine, • The Criminal Revision is dismissed. • The order passed by the learned Judicial Magistrate No.I, Tindivanam, is hereby confirmed. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar kj To 1.The Judicial Magistrate No.I, Tindivanam. 2.Do Thro The Chief Judicial Magistrate, Villupuram. 1 cc to Mr. B.Thanjan, Advocate, Sr.No.35940 1 cc to Mr. S.Saravana Kumar, Advocate, Sr.No.37563 CRL.R.C.No. 784 of 2009 ng(co) pmk.7.7.2011 https://hcservices.ecourts.gov.in/hcservices/