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shalaka rajput (Advocate)     18 November 2011

Defamation case against wife

wife made allegation of impotency against the husband. can husband file criminal case against wife under sec. 499 & 500 of IPC. pls suggest citations, if any.



 14 Replies

Legal Fighter (Advocate)     18 November 2011

yes, but the burden of proof of the contrary if on you. the averments made in the proceedings before court are of public nature and libel per se is attracted to make a case of defamation.

1 Like

AMAR RANU (Legal consultancy)     18 November 2011

Defamation does not constitute any offence unless and until it is made public.

1 Like

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     18 November 2011

Dear Nutan

if the court acuittal the accused/husband then he can filed defemation suit/compalint

LexCollar Law Firm (Advocate)     18 November 2011

You can file for defamation

Reason to say here is that in the plaint or written statement the other party can write some defamatory statements but they can be upto a limit. If some statement affected you big time which is even not true then you can file a defamation suit against the person...

 

I'll provide you judgments regarding the same in a short while....

N.K.Assumi (Advocate)     18 November 2011

Why defamation case? just face the trial and tell the court that you are ready to go through the potent test and also narrate how you and your wife had s*x*l intercourse and how she enjoyed it, finished: All the best my dear.

2 Like

Jolly James 9447287658 (Advocate)     18 November 2011

 

 
   
 

   
 

 

 

 

 

 

 

Judgement - 10KLC-3578

 

   
   
 

Before V. Ramkumar, J
Monday, the 22nd day of March 2010/1st Chaitra 1932

Party Array / Case No.


 IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 2918 of 2009()


1. SHYBIMON, S/O.DIVAKARAN, PUTHEN
                      ...  Petitioner

                        Vs



1. HARIDAS, S/O.CHELLAPPAN, PUTHAN
                       ...       Respondent

                For Petitioner  :SRI.B.PRAMOD

                For Respondent  :SRI.R.AZAD BABU

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :22/03/2010

Judgement



 O R D E R
                         V. RAMKUMAR, J
               .................................................
                 CRL.R.P. NO. 2918 OF 2009
            ........................................................
              DATED: 22nd day of March, 2010

                                    ORDER

         The revision petitioner who was the complainant in a

 private complaint filed as C.M.P. No. 2480 of 2009 before the

 J.F.C.M. I, Cherthala, alleging            offences       punishable under

 Sections 500 and 501 I.P.C. against the Ist respondent herein,

 challenges the order dated 20-8-2009 passed by the Magistrate

 dismissing the complaint presumably under Section 203 Cr.P.C.

 after recording the sworn statement of the complainant.

     2.    Eventhough the accused to whom no process was

issued by the Magistrate, has no right to be heard in this

revision, since the revision petitioner had made the accused a

party respondent and also since this Court ordered notice to him,

I also heard Advocate Sri.Azad Babu on behalf of the Ist

respondent/accused.

                    THE BACKGROUND FACTS



     3.    The facts leading to the filing of the aforesaid

Crl.r.P. No. 2918 of 2009          -:2:-


complaint can be summarised as follows:



          A) O.S. No. 555 of 2008        before the Munsiff's Court,

             Cherthala was a suit filed by the complainant's mother

             Kaumari      and the complainant against         the Ist

             respondent herein (accused) and      his wife seeking a

             declaration of the right of easement over a way and also

             for consequential injunction.    There was an interim

             prohibitory injunction granted by the Civil Court in

             favour of the complainant and his mother.


          B) Alleging that the interim injunction was violated by

             the defendants by causing obstructions to the way in

             dispute the plaintiffs filed a petition for an interim

             mandatory injunction. Eventhough the said application

             as opposed, the Civil Court allowed the application.

             Accordingly, an interim mandatory injunction was

             granted and the same was implemented and the status

             quo ante was restored.


         C) The defendants filed an application before the Civil

             Court to vacate the orders of interim prohibitory as well

             as      mandatory injunction. That application       was

             supported by an affidavit filed by the Ist defendant (Ist

             respondent) herein. According to the complainant,

Crl.r.P. No. 2918 of 2009            -:3:-


             paragraphs 4, 5 and 9 of the said affidavit contained

             defamatory allegations against the complainant. I am

             only quoting the opening portion of paragraph 9 of the

             said affidavit which reads as follows:-


                  "







                                           "

        Transalation


                      "The second plaintiff (revision petitioner herein)
                     is a thief and a lecher who cannot be permitted
                     to set his foot on the courtyards of houses where
                     ladies of honour and self esteem reside. He is an
                     immoral and anti-social person who has amassed
                     wealth undeservingly through illicit distillation,
                     bootlegging etc. and carries on in the company
                     of such elements.      He is a criminal who is
                     prepared to commit any heinous act".


         D) Eventhough the complainant sent a lawyer notice to
           the accused requesting him to withdraw the false
           imputations made against the complainant, he has not
           only acceded to the said request but has also caused a
           reply notice to be sent through his lawyer reiterating his
           stand and raising untenable contentions. Thereupon the

Crl.r.P. No. 2918 of 2009         -:4:-


           complainant filed the aforesaid private complaint before
           the     Criminal Court alleging that the Ist defendant/Ist
           respondent has committed the offence of defamation as
           defined under Section 499 I.P.C. and punishable under
           Sections 500 and 501 I.P.C.




                        ARGUMENTS FOR THE ACCUSED

        4.     Advocate    Sri.Azad   Babu,   the  learned   counsel

appearing for the Ist respondent/accused made the following

submissions before me in support of the impugned order

dismissing the complaint:-

               The mere filing of an affidavit before the Civil Court

after giving a copy of the same to the complainants' counsel

will not amount to          "publication" for the purpose of Section

499 I.P.C. Even assuming that the statements in the affidavit

are defamatory, as rightly observed by the Court below, those

statements enjoy absolute privilege since they were made in the

course of judicial proceedings.        (Vide Gopalankutty Nair v.

Sankunni Ezhuthassan - 1971 KLT 393 F.B.). There is no

evidence available at present to show that the imputation in

question has lowered the reputation of the complainant in the

Crl.r.P. No. 2918 of 2009         -:5:-


estimation of others as required under Explanation 4 to Section

499 I.P.C. In any view of the matter, the statement in question

may fall under the Fourth, Fifth or Nineth Exception to Section

499 I.P.C. so as to take it out of the offence of defamation.

Moreover,            as was held by the Madras High Court in

Gurubasayya v. Siddalingappa - AIR 1940 Madras 677, the

complaint ought to have been filed by the Civil Court.



                        JUDICIAL EVALUATION

         5.     I am afraid that I find myself unable to agree with

the above submissions made on behalf of the           accused. The

learned Magistrate has also substantially based his order on the

aforementioned grounds.

         6.    "To publish" means to make known to others or to

communicate to a third person. (See Webster's Comprehensive

dictionary - International Edition). Publication will be complete

if after making or printing the defamatory statement, it is made

available to the public. (Vide Collector of Central Excise v.

New Tobacco Company and Others - (1998) 8 SCC 250).

Publication includes pleadings, affidavits etc. which are filed in

Crl.r.P. No. 2918 of 2009         -:6:-


Courts.        (In Re Ajay Kumar Pandey, Advocate (1998) 7

Supreme 473). The filing of an affidavit is publication. An

affidavit is not a secret document. It forms part of the Court

records and is available to and accessible by the Public. (See

J.R. Parashar, Advocate and Others v. Prasant Bhushan,

Advocate and Others (2001) 6 SCC 735). Once a statement

is filed in a Court of law such statement can be taken as

published (See Prabhakaran v. Gangadharan - 2006 (2)

KLT 122).

        7.     If a party to a judicial proceeding is prosecuted for

the criminal offence of defamation in respect of a statement

made in such judicial proceeding either on oath or otherwise,

his criminal liability must be determined by reference to the

provisions of Section 499 I.P.C. alone. The English common law

doctrine of absolute privilege can be set up as a defence only in

a suit for damages under the Law of Torts. No such privilege is

recognized by the Indian Penal Code beyond the limits of the

Exceptions embodied in Section 499 of the Indian Penal Code.

The said provision together with its Exceptions             forms a

Crl.r.P. No. 2918 of 2009        -:7:-


complete Code in itself with regard to the criminal liability of

a person accused of the offence of defamation.               Every

defamatory statement not coming within any of the 10

Exceptions to Section 499 I.P.C. is punishable under Section

500 I.P.C.        The Court cannot engraft thereupon any   further

exceptions derived from the common law of England or based

on grounds of public policy.     (See also Haji Ahmad Hussain

v. State - AIR 1960 Allahabad 623 = 1960 Crl.L.J. 1296).

Ordinarily, the question as to whether the statement in a given

case falls under any of the ten Exceptions to Section 499 I.P.C.

will have to be decided only after trial and the burden to bring the libel or slander under any of those Exceptions is, by virtue ofSection 105 of the Indian Evidence Act, on the accused. The

accused may discharge the said burden by means of

preponderance of probabilities.       (See Chinnakuttan Nair v.

Kumaran Nair - 1963 KLT 845; Jose v. Thankappan - 1963

KLT 1071; Chandrasekhara Pillai v. Karthikeyan - ILR

1964 Kerala 31; Dasgupta v. State of West Bengal -1968

KLT (SN) 21 (SC) and Narayanan v. Gangadharan - 1982

Crl.r.P. No. 2918 of 2009            -:8:-


KLT 378).

        8. As mentioned earlier the English Common law doctrine

of privilege is a defence available in a suit for compensation for

defamation under the Law of Torts. Privilege is of two kinds -

absolute and qualified. In cases of qualified privilege it is the

occasion which protects the man who speaks out his mind fully

and frankly without any fear of consequences.             No    action

under the civil law will lie in respect of a false and defamatory

statement even if made with express malice if such statement is

absolutely privileged. Instances when such statements enjoy the

immunity of absolute privilege are when made in the course of -

                          i) Parliamentary proceedings.
                          ii) Judicial proceedings
                          iii)Military and Naval Proceedings
                          iv)State Proceedings (Eg. communications
                              relating to State matters made by one
                              Minister to another or to the Crown, a
                              report made by a     Police Officer to a
                              Magistrate under Section 202 Cr.P.C.
                              etc.)

[Vide pages 294 and 295 of the Law of Torts _ Ratanlal and

Dhirajlal - 25th Edition.]        Gopalakrishnan Nair v. Sankunni

Ezhuthassan (Supra) and Daniel v. Hymavathy Amma

Crl.r.P. No. 2918 of 2009              -:9:-


-1985 KLT 574) are authorities which elucidate the nature and

extent of absolute privilege. It is pertinent to note that going by

the ratio in Daniel's Case (Supra) even under the civil law of

defamation, if the offending statement was absolutely irrelevant

or was made de hors the matter in hand or had no reference to

the matter under inquiry, such statement cannot enjoy                 the

status of absolute privilege.

        9.     In cases of qualified privilege, it is not enough if the

plaintiff shows that the offending statement             was false   and

defamatory, but the plaintiff will have to further prove that the

statement was made with express malice.

          (1) Communications made -
                         i) in the course of legal, social or moral duty
                         ii) for self protection
                         iii)for protection of common interest
                         iv)for public good
                                       and
          (2) reports of Parliamentary and judicial proceedings and
          proceedings at public meetings etc.


          are instances of qualified privilege if the communications
          or reports are made without malice (Vide Law of Torts
          (supra) - pages 294 to 304).

Crl.r.P. No. 2918 of 2009       -:10:-


       10.     Pargraphs 8 in Narayanan's case (supra) - 1982

KLT 378 will indicate that actual loss of reputation need not be

proved. An accused person, as in this case, who takes shelter

under Exception 9 to Section 499 I.P.C. will have to show that

the imputation was made in good faith. In order to claim good

faith the accused must show that before making the imputation

he had made inquiries with due care and attention and that he

was satisfied about the truth of the imputation made by him.

(Vide Sukra Mahto v. Basudeo Kumar - AIR 1971                 SC

1567).

           11. AIR 1940 Madras 677 relied on by the learned

counsel for the Ist respondent cannot obviously apply to the facts

of the present case. In the Madras case the private complaint

though styled as one alleging defamation was really one

involving       the commission of an offence punishable under

Section 193 I.P.C. If so, by virtue of Section 195 (1) (b) (ii)

Cr.P.C. the Court alone could have figured as the complainant.

        12. The result of the foregoing discussion is that none of

the reasons mentioned by the Cou rt below constitutes a valid

Crl.r.P. No. 2918 of 2009         -:11:-


ground for dismissal of the complaint. The learned Magistrate

who had taken cognizance of the offence should have        issued

process to the accused under Section 204 Cr.P.C. The impugned

order dismissing the complaint is set aside. C.M.P. 2480/2009

will stand restored to file and shall be assigned an appropriate

number and shall be dealt with in accordance with law. This

Court shall not be taken as having made any observation on the

merits of the case.

       In the result, this Crl.R.P. is allowed as above.

       Dated, this the 22nd day of March, 2010.




                                     V.RAMKUMAR, JUDGE



ani/                                      .

Crl.r.P. No. 2918 of 2009    -:12:-





 

 
 
 
 

(Guest)
Originally posted by :nutan ankolekar
"
wife made allegation of impotency against the husband. can husband file criminal case against wife under sec. 499 & 500 of IPC. pls suggest citations, if any.
"

File the case .She'll fall on your feet and beg for pardon. She'll cringe and crawl too.

Sudhir Kumar (Dy Director)     30 January 2013

First of all let the case be decided in your favour. Right now the onus of proof is on her.  DFo not invite onus of proof on youby filing defamation case prematurely.

First let there be a verdict that her allegation are fals eand let her lose appeal as well.

Raj (fr)     09 August 2013

Sir,

If wife has written defamation letter to my employer ,can file civil defamation.Do I justify her alligations to be false pointwise or let her prove the alligation.what is better.As I can't wait for more than 1 year to file as this may cross the time limit time limit to file.

How the defamation amount is decided.

Please guide.

Rgds,

Raj

Rajesh P (Manager (Legal))     23 December 2013

The Madurai Bench of Madras High court  vide its order dt. 16.11.2007 in J. Gnana Kumar Vs Joy Kanmani  held that pleadings filed before the courts of law are not public documents to which any body can have free access and  hence will not amount to publication in order to attract  the offence of defamation under section 499 IPC.  

San (consultant)     08 October 2014

Hi all,

My wife DVC, 498A, 3 & 4 DP etc all possible cases on me. recently she had sent an email to all my sales managers at Onshore, all US embassies in India through her advocate , stating that I am planning to leave to US by absconding all these cases. In that email, it was stated to US emabassies in India to revert back my VISA to US,

In this regard, my employer had straight away sent an email to her as a reply saying that , these issues need to be discussed between wife and husband and warned her saying that he may file a complaint against her if she repeats the same. 

This email caused lot of damage to my name at onshore managers and spoiled my carrer opportunities. But all my colleagues know about me and they are all supporting me to fight against her.

Please let me know if I can file defamation case against her and her advocate?

sansh (not working)     04 July 2015

Originally posted by : Rajesh P

The Madurai Bench of Madras High court  vide its order dt. 16.11.2007 in J. Gnana Kumar Vs Joy Kanmani  held that pleadings filed before the courts of law are not public documents to which any body can have free access and  hence will not amount to publication in order to attract  the offence of defamation under section 499 IPC.  

but all the pleadings and case files are available publicly in stpl, indiakanoon etc. also i assume one can file rti to know the same. by virtue of these doesn't it make all the pleadings public documents?

Warrior_27_India (WARRIOR)     04 July 2015

Respected Exparts

My wife wrote complaint letter against me to  my Employer ( Central Govt. Dept) and gave Defamatory allegations that i have withdraw approx one lac rupee from our joint A/C ( She is the Primary A/C holder) by forging her signature.

During Dept. enquiry I have submitted the bank statement and get relieve.

Do such  Defamatory allegations attract sec 499 / 400 IPC ?

Sudhir Kumar (Dy Director)     05 July 2015

Originally posted by : victim_27_India
Respected Exparts

My wife wrote complaint letter against me to  my Employer ( Central Govt. Dept) and gave Defamatory allegations that i have withdraw approx one lac rupee from our joint A/C ( She is the Primary A/C holder) by forging her signature.

During Dept. enquiry I have submitted the bank statement and get relieve.

Do such  Defamatory allegations attract sec 499 / 400 IPC ?

Nothing is clear from your post to say whether defamation can lie or not.

 

  1. what was the allegation
  2. whether you received chargesheet
  3. whether the deptt inquiry is there
  4. whether she was called as a wtiness and you allowed to cross examine.
  5. whether the findings of inquiry in your favour
  6. whether the appointing authrotiy agreed with report
  7. whteher the appointing authroity signed order of exhoneration.

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