M. C. VERGHESE versus T. J. PONNAN & ANR.

Citation: [1969] 2 S.C.R. 692 · Decided: 13-11-1968 · Supreme Court of India · Bench: J.C. SHAH · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

' 
M. C. VERGHESE 
A 
v. 
T. J'. PONNAN & ANR. 
November 13, 1968 
(J, C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.] 
B 
Evidence Act (1 of 1872), s. 122-Letters from husband to wife con-
,i.l 
taining defamarory matter of third 
persons-Hu.rband prosecuted 
for 
defamation~Whether letters can be proved against husband-Subsequent 
declaration of nullity of marriage-If removes the bar against disclosure. 
The first respondent wrote le.tiers to his wife who is the daughter of 
the appellant. 
The letters contained defamatory imputations 
concern-
ing the appellant. 
The letters were handed over to the appellant and 
he filed a complaint fot defamation against the first resirondent. The 
Magistrate held that a communication between spouses of a matter de.-
famatory of another did not amount to publication and that no evidence 
could be given of it under s. 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 imp'Otency. 
HELD : If the appellant sought to support his case only upon the 
evidence of the wife of the first respondent, s. 122 of the Evidence Act 
would be a bar. 
Further, a marriage with a person impotent 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 resoondent consented. because. if the marriage was subsisting at 
thetime when the communication was made the bar prescribed by s. 122 
would operate. 
But the 1etters were in apoellant's possession and were 
available for being tendered in evidence, an.cl he could prove the letters 
in any other manner. 
Therefo'e. the accused (first respondent) should 
not have been discharged. [696 H; 697 A~; 698 A-Bl 
Rumvin~ v. Director of Public Prosecutions, [1962] 3 All E.R. 
256, 
(H.L.) applied. 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 
46 of 1967. 
Appeal from the iudgment and' order dated November 1, 1966. 
of tbe Kerala High Court in Criminal Revision Petition No. 191 
of 1966. 
Lily Thomas,. for the appellant. 
W. S. Barlingay and Ganpat Rai, for respondent No. 1. 
A. G. Pudissery, for respondent No. 2. 
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• 
M. C. VERGHESE v. T. J, PONNAN (Shah, J.) 
693 
The Judgment of the Court was delivered by 
Shah, J. 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 con-
tained defamatory imputations concerning Verghese. 
Verghese 
then filed a complaint in the Court of the District Magistrate, 
Trivandrum, against Ponnan charging him with offence of defama-
tion. 
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 "publica-
tion" 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. 
The District Magistrate held that a communication by a hus-
band to .his wife or by a wife to her husband of a matter defama-
tory of another person does not amount in ,Jaw 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('). 
He also held that the communication was privileged, 
and no evidence could be given in court in relation to that com-
munication. 
He accordingly ordered that Ponnan be discharged 
under s. 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 Sessio

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