Calling Husband ‘Impotent’ in Pleadings Amounts to ‘Defamation’: X V/s Y (Criminal Application (APL) No. 774/2017, High Court of Bombay, S.B. Shukre, J.)

Abstract

The essentials of offence of defamation are that there should be some imputation harming the reputation of a person and publication of such imputation by communicating it to a person other than the person against whom the imputation is made. The existence of the afore stated two essentials of the offence of defamation, that is, ‘imputation harming the reputation of a person’ and ‘publication of the imputation by communicating it to a person other than the person against whom the imputation is made’, are to be ascertained from the allegations made in the criminal complaint (and other material produced on record, if any) preferred by the aggrieved person against the accused under Section 499 read with Section 500 of the Indian Penal Code, 1860 (‘IPC’) and the court is to apply the test of ‘face value’ or ‘prima facie’ worth of the material on record taken as it is, and, the court is not expected to go into a detailed analysis of the material available on record as the same is not permissible at the stage of issuance of process by the Judicial Magistrate First Class/ Metropolitan Magistrate trying the case relating to the offence of ‘defamation’.

If the wife alleges in the pleadings filed by her in the court of law that her husband is impotent then the requirements contemplated under Section 499 read with Section 500 of the IPC stand fulfilled to the effect that, firstly, there is imputation by the wife against the husband that her husband is ‘impotent’ and secondly, there is publication of the imputation as pleading of imputation by the wife in the court of law is publication of the imputation by her. Whether or not the imputation made by the wife is true and correct is a secondary issue and the same is to be tested in trial on the anvil of evidence produced by the wife and rebutted by the husband, but there is no impediment on the husband there by stopping him from initiating action against his wife accusing her of the offence committed by her under Section 499 read with Section 500 of the IPC. At the stage of issuance of process by the magistrate, what the magistrate has to look into is whether or not prima facie case has been made out by the complainant against the accused person.

Keywords: Shivam Goel, Defamation, Pleadings, Indian Penal Code