Introduction
The offence of defamation has long been challenged as being a relic of India's colonial past. It is argued by many proponents of this position that defamation must be either done away with completely or at least be decriminalised. A private members’ bill was also introduced in early 2017 to decriminalise defamation. The reason being that the offence of defamation is an unwarranted restriction on the right to free speech and must be re-looked. It is put forth that a civil action for defamation must be enough for the effective protection of the right to reputation and that the restriction fails the constitutional test of reasonableness.
However, it is the belief of the author
that the provision for a wife to institute defamation proceedings against her
husband is one that is very much essential even today. Primarily, the basis for
this assertion is that the presence of this provision is an enabling factor for
women to fight and break free from abusive relationships that they may have
gotten stuck into. The social fabric of the country is one in which the husband
and his family enjoy a dominant position over the wife. It would not be wrong
to say that marriage as an institution has been a fancy name for a transaction
which simply transfers the custody of a woman from her parents to her husband
and in-laws. Traditionally, the demand for dowry has been an integral component
of this transaction and shows just how the family of the husband enjoys a
position of privilege as against the family of the wife.
In such a scenario, it is very likely
that the husband and his family would abuse their privileged status to extract
the maximum benefit from the transaction of marriage. In this process, it is
the wife who suffers the brunt of the toxicity, in the form of domestic
violence – economic, emotional, physical, mental abuse inflicted upon a spouse
– which data shows to be fairly
common
in India. The wife and her family are often publicly called out and shamed for
failing to meet the demands of the husband. Therefore, it becomes of utmost
importance to place the tool of defamation in the hands of the wife to take her
husband and his family to task for their actions. Thus, through this article,
this author will go on to argue that while the criminal offence of defamation
has many arguments against it, it would be in best interest to retain the same
for wives as a means to defend themselves from their husbands. This is
particularly in light of India’s social environment which necessitates wives
having a course of action against their husbands for defamation.
The offence of defamation against one’s own partner in a marital relationship makes it a very sensitive issue as there are numerous feelings and emotions attached to the relationship. One of the essential requirements of defamation is that the statement be maliciously published in order to cause harm to the reputation of another person. In spousal defamation, it must be remembered that causing hurt to the feelings of the spouse would not constitute defamation, rather, what the courts will look for is whether there is a loss of reputation.
For
instance, in a marriage, a loss of reputation of the wife can occur when the
husband makes adverse remarks about the character of his wife to another person
or persons. The actual communication of such remarks to someone is absolutely
essential for qualifying as defamation, as has been held in Mahender Ram v. Harnandan Prasad.
It must be clarified in this regard that comments made during a fight between husband
and wife would not come under the ambit of defamation as it is merely a
conversation between the two parties, and not one in which the comments are
relayed to a third-party.
The
parties then engaged in rounds of allegations and counter-allegations against
each other, with the husband resorting to mudslinging and character
assassination of the wife. Matters came to such a pass, that the husband went
to the extent of lodging a complaint of theft against the wife. All of this had
led to the filing of defamation charges under the Indian Penal Code, 1860 by
the wife. In their concluding remarks, the Supreme Court noted that the case
should serve as an eye-opener to those who believe that they can get away by
casting aspersions on a woman to serve their ends and to silence her.
In
the Chitnis case, the Supreme Court was of the opinion that defamatory
proceedings instituted by a wife against her husband were essential in the
sense that it allowed her to vindicate her honour and claim compensation for
the mental agony suffered. Thus, the Supreme Court had adopted a very
progressive stance on the issue as their reasoning allowed a wife to step out
of the shadows of her abusive husband and lead an honourable life. By awarding
the wife compensation in the case, the Court ensured that she would never have
to depend upon her husband for finances and could be independent of him. At a
time when women were not generally allowed by their families and husbands to
step out of the house and make careers for themselves, this was a decision of
great value in promoting the interests of a wife.
At
this juncture, it is important to analyse how far the reasoning of the Chitnis
judgement holds true in today’s era. It is the opinion of the author that there
has not been any substantial change in the societal status and position of
women in society. We are still living in an intensely patriarchal world where
women are constantly subjected to the whims and fancies of their male
counterparts. Although the advance of education in the country has begun to
show slight changes in the mindset, the society’s behaviour and attitude
towards women, for all practical purposes, still remains as it was. Therefore,
the Chitnis decision is still of immense value and must be followed in
letter and spirit as it provides for the independence of a wife from her
abusive husband.
Another
facet of the debate around defamation proceedings by a wife against her husband
lies in the provision contained in section 122
of the Indian Evidence Act, 1872. This section mandates that any person who is
married cannot be either compelled or permitted to disclose any such
communication as is made to him/her during the course of marriage by the person
to whom he/she is married. Exceptions to the application of this section are, first,
when the other spouse consents to such disclosure; second, when the suit
is between the two married persons or one spouse is being prosecuted for an
offence against the other. In fact, this was the bone of contention in the case
of M.C. Verghese v. T.J. Ponnan.
Here,
the daughter of the plaintiff was married to the defendant. The defendant wrote
certain letters to his wife and it is claimed that these letters contained
defamatory imputations regarding the plaintiff, who proceeded to press
defamation charges. The defendant submitted that first, the letters were
not admissible as evidence as they were barred by law from being disclosed; and
second, that such statements made between a husband and wife would not
be considered as publication and therefore, there could not be any defamation.
The District Magistrate held that since the husband and wife are considered to
be one under law (relying on the case of Wennhak v. Morgan and Wife),
a communication between them would not amount to publication and that since the
communication was privileged, it could not be admitted as evidence.
The
High Court also affirmed the District Magistrate’s finding that the communications
cannot be considered as publication in eyes of the law. The Supreme Court, analysing
the above English rule, arrived at the conclusion that such a rule had not been
adopted fully in India. In Queen Empress v. Butch,
it was held that there is no presumption of law in India that the wife and
husband constitute one person. In Abdul Khadar v. Taib Begum,
the Madras High Court again held that there is no presumption under Indian law
that a wife and husband constitute one person and therefore, the English common
law doctrine of absolute privilege cannot prevail. Ultimately, the Court stated
that the District Magistrate was not fit in passing any order without conducting
a trial and recording any evidence in the first place.
Conclusion
It is often said that the institution of marriage is sacrosanct and is meant to last for a lifetime. However, marriage does not grant the license to one spouse to cross the boundaries of decency which societal morality demands from each and every one of us. As elucidated in the beginning of this paper, there are growing calls from several sections of society to scrap the law of defamation, or at least for its decriminalisation. It is suggested that the provisions should remain as it is for wives to approach the Court against their husbands. The most important thing to keep in mind here is that this is a way for the wife to seek vindication of her honour and status in society, which is can be very easily destroyed by husband and his family. If a wife is not allowed to regain her honour in society, it would make her vulnerable to further cruelty and harassment.
[October 2020]
Disclaimer - This Article was first published on the Criminal and Constitutional Law Blog and has been reproduced with due permission.
No comments:
Post a Comment