M.C. Verghese v. T.J. Ponnan & Anr. AIR 1970 SC 1876

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

Whether the letters sent to the wife admissible in evidence per Section 122 of the Indian Evidence Act?
Whether uttering a libel by a husband to his wife amount to “publication”?

Section 122 of the Indian Evidence Act prohibits disclosing in Court communications made between spouses during marriage. Still, it does not prevent such communications from being introduced as evidence by a third party, such as a non-spouse recipient.

In the above case, the first respondent wrote letters to his wife, the appellant’s daughter. The letters contained defamatory imputations concerning the appellant.
The letters were handed over to the appellant, who filed a complaint for defamation against the first respondent.
The Magistrate held that communication between spouses of a matter defamatory of another did not amount to publication and that no evidence could be given of it under Section 122 of the Evidence Act, 1872, against the first respondent and discharged him.
The Court of Session 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 and set aside the order of Magistrate.
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.
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 grounds of his impotence.

The Supreme Court held that the accused, T.J. Ponnan, should not have been discharged by the lower courts.
The Court noted that if the appellant, M.C. Verghese, were to rely solely on the testimony of Ponnan’s wife (Rathi) to support his defamation claim, Section 122 of the Indian Evidence Act would bar her from disclosing marital communications without Ponnan’s consent.
Additionally, the Court emphasized that the timing of the marriage and the proceedings for nullity were crucial, as the Indian Divorce Act does not render such a marriage void ab initio; the marriage remains valid until a decree of nullity is pronounced.
Therefore, if the defamation proceedings were to continue and the wife was called as a witness to testify about the communications with her husband, she would be barred from doing so under Section 122 without his consent since the marriage was subsisting when the communications were made.
However, the Court pointed out that the letters containing the alleged defamatory content were in the appellant’s possession and could be introduced as evidence through other means. Hence, the discharge of the accused was unwarranted, and the matter required further trial.