In the eyes of law, husband and wife are one person and the communication of a defamatory matter from the husband to the wife or vice versa is no publication. In T.J. Ponnen V. M.C. Verghese, the question which had arisen was whether a letter from the husband to the wife containing defamatory matter concerning the father in law (wife’s father) could be proved in an action by the father-in-law against his son-in-law. In that case, one T.J.
Ponnen wrote a number of letters to his wife, Rathi, containing some defamatory imputations concerning Rathi’s father, M.C. Verghese. Rathi passed on those letters to her father. The father-in-law launched a prosecution against his son in law complaining the defamatory matter contained in those letters. Ponnen contended that the letters addressed by him to his wife are not, except with his consent, admissible in evidence by virtue of Section 122, Indian Evidence Act, and since the wife is not permitted to disclose those letters, no offence of defamation could be made out. It may be relevant here to quote Section 122, Indian Evidence Act, which reads as follows:
“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.”
The Kerala High Court held that the letters meant for the wife could not be proved in the Court either by her or through any relation of her to the prejudice of her husband because such communications are precluded by law to be disclosed and what cannot be or is not proved in a court has to be assumed as non-existent in the eyes of law. Ponnen was, therefore, held not liable.
The Supreme Court reversed the decision of the Kerala High Court. It was held that even though in view of Section 122, Indian Evidence Act, the complainant cannot seek to support his case upon the evidence of the wife of the accused, but if the communication between the husband and the wife have fallen to his hands, the same can be proved in any other way. According to Shah, J.3
“The complainant claims that he has been defamed by the writing of the letters. The letters are in his possession and are available for being tendered in evidence. We see no reason why inquiry into that complaint should, or the preliminary contentions raised, be prohibited. If the complainant seeks to support his case only upon the evidence of the wife of the accused, he may be met with the bar of Section 122 of the Indian Evidence Act. Whether he will be able to prove the letters in any other manner is a matter which must be left to be determined at the trial and cannot be made the subject-matter of an enquiry at this stage.”
Communication of a matter defamatory of one spouse to the other is sufficient publication. In Theaker v. Richardson, the defendant wrote a letter to the plaintiff making false allegations of her being a prostitute and a brothel keeper. The letter was sent under the circumstances that the plaintiff’s husband in all probability would have read the same. The plaintiff’s husband opened and read it. The defendant was held liable.