AIR 1970 SUPREME COURT 1876

AIR 1970 SUPREME COURT 1876

SUPREME COURT
(From : AIR 1967 Kerala 228)

J. C. SHAH, J. and V. RAMASWAMI, J. and A. N. GROVER, J.

Criminal Appeal No. 46 of 1967, D/- 13-11-1968

M. C. VergheseAppellant v.T. J. Ponnan and anotherRespondents.

(A) Evidence Act (1 of 1872),S.122- Communication between spouses during marriage cannot
be disclosed and deposed to by the spouse without consent of the other who made
communication - Communication and be proved in any other way.

Section 122 of the Evidence Act only prevents disclosure in giving evidence in court of the
communication made by one spouse to the other. If the wife appears in the witness-box to give
evidence about the communications made to her by husband, prima facie the communications may
not be permitted to deposed to or disclosed unless the husband 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. (1962) 3 All ER 256, Rel. on. The communication to wife if it
falls in the hands of the complainant, her father, can be proved by him in any other way than by
putting the wife in the witness-box.

(B) Evidence Act (1 of 1872),S.122- Prohibition under S. 122 continues even after marriage is
declared a nullity.

If the marriage was subsisting at the time when the communications were made, the bar prescribed by
section 122 will operate even after the wife has obtained the decree for nullity of her marriage. 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
that date and not the status at the date when evidence is sought to be given in Court.

(C) Penal Code (45 of 1860),S.499- Publication-Libel by husband through letters written to wife
is publication - Husband and wife are not one person under Indian law.

AIR 1967 Ker 228, Reversed.

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. 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. (1888)20 Q.B.D.
635, Not applied. The Indian Penal Code exhaustively codifies the law relating to offences with
which it deals and the rules of the common law cannot be resorted to for inventing exemptions which
are not expressly enacted. The exceptions to section 499 I. P. 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 persons making libellous statement
in communication to his wife is not absolutely protected in a criminal proceeding for defamation, for
under the Eighth Exception and the illustration to S. 499 the statements are privileged only when they
are made in good faith. 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. AIR 1967 Ker 228, Reversed.

(D) Penal Code (45 of 1860),Preamble- Rules of English Common Law cannot be imported in
interpreting provisions of Code.

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 AIR 1970 SUPREME COURT 1876

Cases Referred Chronological Paras

(1963) 1963-2 All ER 829:(1963) 2 QB 799, Moss v. Moss 17
(1962) 1962-3 All ER 256:1964 AC 814, Rumping v.
Director of Public Prosecutions 15
(1957) AIR 1957 Mad 339 (V 44):1957-1 Mad LJ (Cri)
149, Abdul Khadar v. Taib Begum 9

Cases Referred Chronological Paras

(1926) AIR 1926 Mad 906 (V 13):ILR 49 Mad 728:27 Cri
LJ 1026 (FB), Tiruvengada Mudali v. Tripurasundari
Ammal 11
(1894) ILR 17 Mad 401:1 Weir 409, Queen Empress v.
Butchi 8
(1888) 20 QBD 635:57 LJ QB 241, Wennhak v. Morgan 2,6
The following Judgment of the Court was delivered by

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