TMI Blog1968 (11) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... Verghese. Verghese then filed a complaint in the Court of the District Magistrate, Trivandrum, against Poonan charging him with offence of defamation. Poonan 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 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ands she had voluntarily placed them, the imputations therein fell outside the court's cognizance and no charge under Section 500, Indian Penal Code could be deemed to be made out . Against the order passed by the High Court discharging Poonan, this appeal is preferred with certificate granted by the High Court. 5. It was assumed throughout these proceedings that the letters are defamatory of the complainant. Under the Indian Penal Code in order that an offence of defamation may be committed there must be making or publication of any imputation concerning any person by words either spoken or intended to be read, or by signs or by visible representations, intending to harm, or knowing or having reason to believe that such imputa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s house, does so with dishonest intention, she is guilty of theft. 10. In Abdul Khadar v. Taib Begum AIR1957Mad339 the Madras High Court again held that there is no presumption of law in India that a wife and husband constitute one person for the purpose of criminal law, and therefore the English common law doctrine of absolute privilege cannot prevail in India. 11. It must be remembered that 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. 12. In Tiruvengadda Mudali v. Tripurasundari Ammal ILR 49 Mad 728 a Full Bench of the Madras High Court observed that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 122 of the Indian Evidence Act falls in Chapter IX which deals with evidence witnesses in proceeding before the Court. That section provides - No person who is or has been married shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other. 15. The section consists of two branches - (1) that a married person shall not be compelled to disclose any communication made to him du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oon as the ship arrived at the port outside England. After the appellant was arrested, the member of the crew handed the envelop to the captain of the ship who handed it over to the police. 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 witness. It was held that the letter was admissible in evidence. Lord Reid, Lord Morris of Borth-Y-Gest, Lord Hodson and Lord Pearce were of the view that at common law there had never been a separate principle or rule that communications between a husband and wife during marriage were inadmissible in evidence on the ground of public policy. Accordingly except where the spouse to whole the communication is made is a witness and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thi an incompetent witness. But the argument is plainly contrary to the terms of Section 122. If the marriage was subsisting at the time when the communications were made, the bar prescribed by Section 122 will operate. In Moss v. Moss (1963) 2 QBD 829 it was held that in criminal cases, subject to certain common law and statutory exceptions, a spouse is incompetent to give evidence against the other, and that incompetence continues after a decree absolute for divorce or a decree of nullity (where the marriage was annulled was merely voidable) in respect of matters arising during cover time. 20. Counsel for the appellant however urged that the rule enunciated in Moss's case (1963) 2 QBD 829 has no application in India, because ..... X X X X Extracts X X X X X X X X Extracts X X X X
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