Bombay High Court Quashes Defamation Complaint Against Wife Alleging Impotency in Matrimonial Pleadings | Says Allegations Fall Within Legal Exceptions and Made to Protect Her Interest
Safiya Malik
The High Court of Bombay Single Bench of Justice S.M. Modak held that allegations made in matrimonial proceedings, including those related to impotency, fall within the exception to defamation under Section 499 of the Indian Penal Code. The Court observed that imputations made in judicial proceedings arising from matrimonial disputes are protected when made in good faith and in pursuance of legal rights. It further stated that the revisional court had erred in remanding the matter for further inquiry under Section 202 of the Criminal Procedure Code without recording any prima facie disagreement with the findings of the trial court. Accordingly, the High Court set aside the revisional court's order and dismissed the complaint filed under Sections 500 and 506 read with Section 34 of IPC. The writ petition challenging the remand order was allowed.
The petition was filed by three individuals residing in Mowa, Raipur, Chhattisgarh, identified as the accused in a complaint lodged by a complainant residing in Chembur (East), Mumbai. The complaint alleged offences under Sections 500 and 506 read with Section 34 of the Indian Penal Code.
The dispute stemmed from statements allegedly made by the complainant’s wife (Accused No.1) and her relatives (Accused Nos. 2 and 3) in various matrimonial proceedings, including a divorce petition, a maintenance case, and a transfer petition before the Hon'ble Supreme Court. The core allegations involved imputations of impotency made by the wife.
Initially, the 11th Additional Chief Metropolitan Magistrate, Kurla, Mumbai, dismissed the complaint by invoking Section 203 of the Criminal Procedure Code. The Magistrate found that no prima facie case was made out to issue process for defamation or criminal intimidation. The dismissal order, dated 15th April 2023, stated:
"However, to my mind, complainant has failed to make out prima facie case to issue process against accused persons for the aforesaid offences. It is for the reason that whatever defamatory statements alleged to have been made by proposed accused No.1 against the complainant are made by the accused No.1 i.e. wife of the present complainant in matrimonial proceedings like divorce and other proceedings. Admittedly, impotency is one of the ground of the divorce. There is nothing on record to show that at any point of time the accused persons have given criminal intimidation to the complainant."
The complainant then filed a Criminal Revision Application before the Additional Sessions Judge, Greater Mumbai, who passed an order on 3rd April 2024 remanding the matter to the trial court. Direction No.3 of the revisional order stated: "The learned Metropolitan Magistrate is directed to conduct the inquiry under section 202 of Cr.P.C. and then decide afresh the point of issuance of process against respondents No.2 to 4 i.e. accused No.1 to 3 in the complaint case."
The petitioners challenged this remand order before the High Court. It was contended that the revisional court's direction to conduct an inquiry under Section 202 was unwarranted and that the order of dismissal by the Magistrate was proper. Advocate Mr. Dewani, representing the petitioners, made multiple submissions:
(i) The complainant had not raised any grievance in the revision application regarding denial of an opportunity to examine witnesses prior to issuance of process.
(ii) The revision application explicitly mentioned that verification of the complainant was recorded and the advocate was heard before passing the impugned order.
(iii) The revisional court failed to address the trial court's findings that impotency was a ground in the divorce proceedings and that no material was available regarding criminal intimidation.
(iv) Statements made in judicial proceedings or to lawful authorities do not amount to defamation and are covered by exceptions under Section 499 IPC.
(v) Judgments relied upon included Aroon Purie v. State of NCT of Delhi and Iveco Magirus Branschutztechnik GMBH v. Nirmal Kishore Bhartiya.
The complainant's advocate opposed the petition, arguing that:
(a) The writ petition was premature since no process had been issued.
(b) The complainant deserved an opportunity to substantiate the allegations and seek issuance of process.
(c) An inquiry under Section 202 CrPC was necessary as the accused resided outside the jurisdiction.
(d) Allegations of impotency were not warranted in the referenced proceedings and were made in bad faith.
(e) The imputations, even if made in judicial proceedings, were in the public domain and thus per se defamatory.
(f) Delay in judicial determination could lead to limitation issues.
(g) The judgment in X v. Y was cited in support.
Justice S.M. Modak reviewed the contentions and held that the revisional court's remand was unsustainable. The court stated: "It is certain that while remanding the matter, the learned Additional Sessions Judge has not given any finding on the reasons given by the trial Court. No doubt the trial Court has not specifically opined that these allegations come within the exception to defamation but when he has said that these allegations are made in a divorce proceeding, he mean to convey the same thing."
The Court noted that the complainant did not request an opportunity to examine witnesses before the trial Magistrate nor did he raise this grievance in the revision application: "From the memo of revision, it is not pointed out to me that the Complainant has expressed desire before the learned Magistrate for examining the witnesses and the trial Court has refused it. In fact the reasoning given by the Revisional Court in Para No.13 of their judgment is erroneous."
The High Court stated the necessity of prima facie observations when a matter is remanded: "When the complaint was dismissed for the reason that impotency is a ground of divorce, the learned Revisional Court while remanding the matter ought to have made some prima-facie allegations about the said finding... I find they are missing."
Discussing the scope of High Court's powers under Article 227 and Section 482 CrPC, the Court recorded: "This Court is certainly empowered to ascertain about the allegations in the complaint and the defence of exception taken in the petition... if the offence is not made out, the accused should not be made to undergo the ordeal of trial."
On the content of the allegations, the Court examined the nature and context in which the alleged defamatory statements were made: "In a Hindu Marriage Petition, the allegations of impotency are very much relevant. That is to say when the wife alleges due to impotency it has caused mental cruelty to the wife, she is certainly justified in making those allegations."
It further stated: "So the grounds of impotency even though may not be primarily necessary, the allegations are on the basis of incidents that took place between their matrimonial life. As such they are very much necessary."
Concerning the exception under Section 499 IPC, the Court concluded: "This Court feels that when the litigation is in between both the spouses arising out of a matrimonial relationship, the wife is justified in making those allegations to support her interest... these allegations fall within the exception Ninth to Section 499 of IPC."
On the participation of Accused Nos. 2 and 3, the Court recorded: "The Accused No.2 is a father of Accused No.1 and Accused No.3 is the brother. It is their case that they have been joined unnecessarily in that particular case."
Citing Supreme Court judgments, the High Court stated: "The power under Section 482 of the Code and Article 227 of the Constitution has to be exercised when there is a misuse of the process of the Court... this issue has already been clarified by the Supreme Court in above two judgments."
On the judgment in X v. Y, the Court observed:"The ratio in case of X v. Y will not be helpful to the Complainant for the reason the Supreme Court has already clarified the issue on this aspect."
Justice S.M. Modak issued the following directions: “The Writ Petition is allowed."
"The order dated 3rd April 2024 passed by the Court of Additional Sessions Judge in a Criminal Revision Application No.446/2023 is set aside. The complaint filed for offences under Section 500,506 read with Section 34 of IPC stand dismissed."
Advocates Representing the Parties:
For the Petitioners: Mr. Shyam Dewani, Advocate, along with Advocate Sachet Makhija
For the Respondents: Mr. Ghanshyam Mishra, Advocate, along with Advocate Ekta Bhalerao; Mr. H.J. Dedhia, APP for Respondent No.2
Case Title: XXX v YYY
Neutral Citation: 2025: BHC-AS:32358
Case Number: Criminal Writ Petition No.2686 of 2024
Bench: Justice S.M. Modak
