This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides a case analysis of MC Verghese v. T J Ponnen (1970).
This article has been published by Sneha Mahawar.
Table of Contents
Introduction
In the landmark case of M C Verghese v. T J Ponnen (1970 AIR 1876, 1969 SCR (2) 692), a Bench of Justices J.C. Shah, V Ramaswami, and A.N. Grover of the Supreme Court of India affirmed the law of defamation with respect to a married couple. The Apex Court interestingly differentiated between the English Common Law’s take on defamation with that of defamation in the Indian scenario, thereby concluding the common saying that “husband and wife are one in the eye of the law” has not been adopted in the Indian defamation jurisprudence. The present article is a case analysis of this well-known case law.
Facts of the case
T.J. Ponnan (Respondent) married Rathi, M.C. Verghese’s daughter. From Bombay, Ponnan had addressed letters to Rathi, who was then staying with her parents in Trivandrum on July 18, 1964, July 25, 1964, and July 30, 1964. These letters were claimed to include defamatory imputations against Verghese (Petitioner). Verghese then filed a suit against Ponnan in the Court of the District Magistrate in Trivandrum, accusing him of defamation. Ponnan filed an application in which he made two preliminary claims:
- That the letters that formed the only basis of the complaint were inadmissible in evidence because they were either forbidden from disclosure by law or were expressly prohibited by law; and
- That a husband’s utterance of a libel to his wife was not “publication” under Indian law, and hence could not establish a defamation accusation, and requested for a blanket order of dismissal, and applied that he be dismissed.
The Magistrate found that communication between spouses on a thing defamatory to another did not amount to publishing as the husband and wife are one in the eye of the law. The Magistrate also took into concern that no evidence could be produced against the respondent with respect to the defamatory letters under Section 122 of the Indian Evidence Act, 1872, and therefore released him.
The ruling was set aside and additional investigation into the complaint was directed in a revision application filed by Verghese before the Court of Session. The learned Sessions Judge believed that the English common law doctrine that communication by one spouse to another of a matter defamatory of another person does not amount to publication, did not apply in India and that Section 122 of the Indian Evidence Act, 1872 does not prevent the complainant from proving the letters written by Ponnan to his wife before the Court. After that, the matter was appealed to the Kerala High Court. The High Court overturned the Court of Session’s decision and reinstated the District Magistrate’s decision.
The High Court held 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 of the Indian Penal Code, 1860“ could be brought. The present case is an appeal from the judgment and order dated November 1, 1966, of the Kerala High Court in Criminal Revision Petition No. 191 of 1966.
Issues raised
- Whether the letters which formed the sole basis of the complaint are admissible in evidence or are they barred by law or expressly prohibited by law from disclosure?
- Whether uttering a libel by a husband to his wife amounts to “publication” under the Indian laws or not?
Contentions of the parties
The arguments presented before the Supreme Court of India by both the parties to the case have been discussed hereunder.
Submissions by the petitioner/ respondent
The respondent in his letters to his wife, petitioner’s daughter, according to the petitioner, had defamed him. He further claimed that the letters were in his possession and could be used in the Court as proof.
Submissions by the respondent/ appellant
Ponnan, the respondent, on the other hand, claimed that the letters he sent to his wife are not admissible in evidence unless he consents, under Section 122 of the Indian Evidence Act, 1872, and that since the only publication pled is a publication to his wife, and she is prohibited by law from exposing those letters, no case of defamation can be brought out.
Judgment
A judgment of a case is made up of the ratio decidendi and obiter dicta. The judgment in the present case has both of these ingredients with an interesting note. The same has received its discussion below.
Ratio decidendi
In order for an offence of defamation to be committed under the Indian Penal Code, 1860, there must be the making or publication of any imputation concerning any person, whether by words spoken or intended to be read, or by signs or visible representations, with the intent to harm, or knowing or having reason to believe that such imputation will harm that person’s reputation. To be considered defamatory, an imputation about a person must be made or published, and the imputation must be made or published with the purpose to injure, or knowing or having cause to suspect that such imputation would hurt, that person’s reputation. There can’t be a defamation offence until there’s publishing.
Obiter dicta
The appellant’s counsel had argued that since the present case came before the Supreme Court, Rathi had obtained a declaration of nullity of marriage against Ponnan on the basis of his impotency and that whatever bar existed during the marriage can no longer constitute Rathi an incompetent witness. However, the argument is clearly in violation of Section 122 of the Indian Evidence Act of 1872 as the bar imposed by Section 122 will apply if the marriage was still alive at the time the communications were made.
Landmark cases mentioned in the judgment
The landmark cases that are referred by the Apex Court while deciding the present case have been discussed hereunder.
Wennhak v. Morgan and Wife (1888)
Wennhak v. Morgan and Wife (1888) is a landmark case in English defamation law, in which it was observed that contact with one’s own spouse is not deemed “published” for defamation reasons. The District Magistrate relied on the judgment of this case while deciding the 1970 case of M C Verghese v. T J Ponnen, thereby concluding 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.
Queen Empress v. Butch (1893)
In the case of Queen Empress v. Butch (1893), it was decided that there is no legal presumption in India that the wife and husband are one person for the purposes of criminal law. The woman is guilty of theft if she removes the husband’s possessions from his home with dishonest intent. In many cases, her shared possession may give rise to a presumption that she had authorization from her husband to transfer the property away, although this is a factual presumption that can be refuted. The aim with which the husband’s property is taken is a factual matter, and where a dishonest conversion is intended, it plainly amounts to theft.
Abdul Khadar v. Taib Begum (1956)
The Madras High Court concluded in Abdul Khadar v. Taib Begum (1956) that there is no legal presumption in India that a woman and her husband are one person for the purposes of criminal law, and so the English Common Law notion of absolute privilege cannot apply in India. It’s important to recall that the Indian Penal Code, 1860 thoroughly codifies the legislation relevant to the offences it addresses.
Tiruvengadda Mudali v. Tripurasundari Ammal (1926)
A full bench of the Madras High Court had observed in the case of Tiruvengadda Mudali v. Tripurasundari Ammal (1926), that the exceptions to Section 499 of the Indian Penal Code, 1860 must be regarded as exhaustive in terms of the cases they purport to cover, and that recourse to English common law cannot be used to “add new grounds of exception to those contained in the statute.” In a criminal process for defamation, a person who makes libelous comments in his complaint filed in court is not completely protected, since, under the eighth exception and the illustration to Section 499, remarks are only shielded when made in good faith. There is, therefore, support for the idea that while considering the illegality of an act under the Indian Penal Code, 1860, courts will not expand the scope of special exclusions by using the English common law rule that the husband and wife are considered one person.
Rumping v. Director of Public Prosecutions (1964)
Rumping, a Dutch ship’s mate, was prosecuted for a murder committed on board in the present case of Rumping v. Director of Public Prosecutions (1964). A letter sent by Rumping to his wife in Holland, which amounted to a confession, was included as part of the prosecution’s evidence at the trial. Rumping had written the letter on the day of the murder and had given it to a member of the crew in a sealed envelope, instructing him to send it as soon as the ship reached the port outside of England. The member of the crew had passed the same to the captain of the ship, who handed it over to the police when the appellant was detained. 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 a witness.
The letter was found to be acceptable as evidence. Lord Reid, Lord Morris of Borth-Y-Gest, Lord Hodson, and Lord Pearce believed that there had never been a separate concept or rule of common law that communications between a husband and wife during the marriage were inadmissible as evidence due to public policy concerns.
Moss v. Moss (1942)
In Moss v. Moss (1942), it was held that a spouse is incompetent to give evidence against the other in criminal cases, subject to certain common law and statutory exceptions and that this incompetence continues after a decree absolute for divorce or a decree of nullity (where the marriage was merely voidable) in respect of matters is arising during coverture.
Observations of the Supreme Court
The observations made by the Supreme Court of India in the present case has been laid down hereunder:
- The appeal was allowed and the order passed by the Kerala High Court was set aside. The respondent was ordered to be discharged under Section 253(2) of the Code of Criminal Procedure, 1973.
- If the defamation case went forward and ‘the wife’ was called as a witness to testify about the communication made to her by her husband, the communication could not be deposed, unless the respondent consented because, if the marriage was still going strong at the time the communication was made, the bar imposed by Section 122 would apply. But the letters were in the appellant’s possession and could be presented in evidence, and he could not prove them in any other way. As a result, the defendant should not have been released.
Analysis
Section 122 of the Indian Evidence Act, 1872 is found in Chapter IX of the statute, which deals with witness testimony in court proceedings. There are two forks in this section, namely,
- A married person is not obligated to reveal any communication made to him by his spouse during the marriage; and
- Except in two limited circumstances, the married person is not entitled to reveal the communication by giving testimony in court unless the person who made it, or his representative in interest, consents.
Ponnan and Rathi were married at the time he wrote the letters to Rathi. The restriction to the admission in evidence of communications made during marriage applies at the time of the communication, and its admissibility will be determined in light of the status of the marriage at the time of the communication rather than the status at the time when evidence is requested to be provided in court.
Conclusion
As we reach the conclusion of this article, it is evident to say that the present case law recognizes that although the majority of the Indian laws have been breathing with the help of English common law, the former has its own recognition when it comes to specific subject matters such as cases of defamation.
References
- https://www.lawctopus.com/academike/case-briefs-m-c-mehta-section-122-iea-defamation-ipc-and-compensation/.
- https://www.delhilawacademy.com/m-c-verghese-v-t-j-poonan-1969-sc/.
- https://edurev.in/studytube/M-C–Verghese-v–T-J–Poonan–1969-SC-/d77f6e24-e835-4a75-a001-041638f7f157_t.
- https://indiankanoon.org/doc/1120728/#:~:text=Verghese%20was%20married%20to%20T.J.%20Ponnan.&text=The%20District%20Magistrate%20held%20that,the%20eye%20of%20the%20law.
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