Bombay High Court: While hearing a case of defamation filed by the complainant-husband, as the petitioner-wife made allegations of impotency against him, a Single Judge Bench of S.M Modak, J., opined that in divorce proceedings under the Hindu Marriage Act, 1955 (‘HMA’), when the wife made allegations regarding her husband’s impotency, she was justified in making those allegations, as they were relevant to support her interest. Thus, such allegations fall within the exception Ninth to Section 499 of the Penal Code, 1860 (‘IPC’) and would not qualify as defamation.
Background
The wife had made allegations of impotency against her husband in the divorce and maintenance proceedings, and the FIR filed by her. The husband, therefore, filed a complaint before the Magistrate under Sections 500 and 506 read with Section 34 of IPC, against his wife alleging the offence of defamation due to the statements made by her in matrimonial proceedings.
The Magistrate dismissed the complaint stating that impotency was a ground for divorce under HMA. Thus, the husband filed a Revision Application before the Sessions Court wherein the Additional Sessions Judge (‘ASJ’) remanded the matter to the Trial Court for further inquiry under Section 202 of the Criminal Procedure Code, 1973, and to decide afresh regarding the issuance of process in the said defamation case.
Aggrieved by the order of the ASJ, the wife approached the Court.
Analysis, Law, and Decision
The Court observed that firstly, the ASJ did not give any finding on the reasons given by the Trial Court for the dismissal of the case and secondly, ASJ remanded the matter on the ground which was not even mentioned in the Revision Application.
It was pointed out that the matter was remanded on the ground that the husband did not get the opportunity to examine the witnesses mentioned in the witness list, which was not a grievance in the Revision Application. The Court opined that if the complainant wanted to examine the witness, the request should have been made by him before the Trial Court itself, and the Trial Court was not duty bound to ask whether the complainant wanted to examine the witness.
The Court opined that when the complaint was dismissed stating that impotency was a ground of divorce, the Revisional Court while remanding the matter ought to have made some prima-facie allegations about the said finding, because the revision application was not allowed. The Court stated that if the ASJ could have issued the process, then he was supposed to go in detail about the said observation, but some prima-facie observations were required, or at least certain directions to the Magistrate to go into that reasoning were required, but the same were missing.
The Court referred to Section 499 of IPC and stated that if the harm was caused by making imputation to the reputation of such person, it amounted to defamation of that person and in the present case, imputation was by way of written words before the police and before the judicial authorities. Thus, such imputation would amount to defamation when the case did not fall within either of the ten exceptions to Section 499.
The Court noted that the wife’s case was that her husband was not capable of intercourse, which, as per the husband, had damaged his reputation. The Court further noted that the parties had a son. Thus, the Court emphasised that it was not deciding whether the allegations made by wife were true or not, but it would only decide whether the said allegations were made without good faith and not for protecting the interest of the maker.
Accordingly, the Court set aside the order passed by the ASJ, dismissed the defamation complaint filed by the husband and held that when the litigation was between both the spouses arising out of a matrimonial relationship, the wife was justified in making those allegations to support her interest. The ground of impotency might not be primarily necessary; the allegations were based on incidents that took place between their matrimonial life. Thus, the allegations fall within the exception Ninth to Section 499 of IPC.
[X v. Y, 2025 SCC OnLine Bom 2790, decided on: 17-7-2025]
Advocates who appeared in this case:
Advocate for the Petitioners- Shyam Dewani, Sachet Makhija, Dashang Doshi i/b Dewani Associates, Advocates
Advocate for the Respondents- H.J. Dedhia, APP; Ghanshyam Mishra, Ekta Bhalerao i/b Ekta Mistry, Advocates
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