T J PONNEN Vs. M C VARGHESE

JUDGEMENT

(1.) THE material question involved in this Crl. R. P. , which centres round Section 122 of the Evidence Act, is of considerable general importance, but not of easy solution. Though I have been treated with elaborate discussions by counsel, displaying considerable learning and research, I must confess that I do not feel clarified of all obscurity about it.

(2.) THIS motion is in a prosecution for defamation launched on September 17, 1965, before the District Magistrate, Trivandrum, by a father-in-law (hereinafter the complainant), against one of his sons-in-law (hereinafter the accused on account of imputations made in three letters sent by the latter on July 18, 28 and 30. 1964, from Bombay, his place of employment to his wife in Trivandrum, who handed them over to the complainant in about September, 1966, when dissensions arose between her and the accused.

(3.) COUNSEL for the accused before the District Magistrate raised a preliminary objection to the prosecution on the ground that the words that are complained to be defamatory being part of marital communications between the accused and his wife, cannot be permitted to be disclosed in Court and therefore cannot form the basis of a prosecution, and also on the ground that a communication between husband and wife cannot be a publication in law both on account of the unity of the spouses and the prohibition of disclosure in Section 122 of the Evidence Act. The District Magistrate upheld the objection, held the prosecution unsustainable and therefore discharged the accused under Section 268 (9), Crl. P. C. On a motion by the complainant, the First Additional Sessions Judge, Trivandrum, revised that order of discharge, held "that communicating a defamatory matter by the husband to his wife is publication in the eye of law" and "that the privilege contemplated under Section 122 of the Evidence Act can be claimed only by the husband or the wife when they are called to depose as witnesses, and that the communications as such are not privileged" and, therefore set aside the order of the District magistrate and remitted the case for "further enquiry into the complaint. " The accused has come up in revision against the latter order