Decided on November 13,1968

M C VARGHESE Appellant
P J PONNAN Respondents


- (1.) 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.
(2.) 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 v. Morgan and Wife 1888 (20) QB D 635. 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.
(3.) 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 S.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.;

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