1. This is an appeal against the conviction of the appellant by the Second Presidency Magistrate for an offence under Section 500 I. P. C. The appellant has been sentenced to a fine of Rs. 500, in default to undergo simple imprisonment for three months.
2. The complainant is no other than the wife of the appellant. They belong to the Muslim community. The complainant married the appellant sometime, in May 1930. The relationship appears to have been quite cordial for quite a long time. It is stat-ed that the complainant has borne eight children to the appellant. This fact is not disputed. She has got a son aged about 23 and a daughter aged about 19, though one daughter given in marriage appears to have died and some of the children also have died.
The fact that the appellant has taken an Anglo-Indian girl as his second wife is not also disputed. It is stated that this girl has been converted into a Muslim and thereafter the appellant married her; According to the complainant this Anglo-Indian girl was a typist under the appellant. This is not dispitted by the appellant. It is during her service under him that he has developed intimacy with her which has led to this ultimate marriage. Ordinarily, even when brothers fall out, the enmity is bitter. So seems to be the case when the husband and wife also fall out. The properties, most of them, seem ' to be in the name of the wife, the complainant.
It is alleged by the appellant that all these properties belong to him and that they were purchased benami in the name of his wife, the complainant. But the allegation of the complainant is that the properties belonged to her or that they were given to her by the appellant. We are not concerned in this case with the rights of the parties or their title to the properties, in whosever name they may be, Suffice it to say that after the Anglo-Indian girl crossed the path of the complainant, trouble arose between her and the appellant.
The conduct of a husband carrying on with a typist under him would certainly evoke protest from a wife. Hot words must have passed between the husband and wife over this intimacy between him and this Anglo-Indian girl, who is said to be 30. Apparently, the husband must have attempted to dominate and indulge in outbursts against his wife., As a result of these misunderstandings, the wife left the house and went and remained with another friend. This friend is alleged by this appellant as having illicit intimacy with his wife.
His allegation has gone to this extent that when this friend, Sibatulla, who has been examined as P. W. 3, came one day to effect a reconciliation and stayed with him, that night he slept with her when, the husband was out. The allegation has only to be, made to be rejected. It is quite unnecessary to go into the truth or otherwise of this allegation as it seems to me that the incidents that have been mentioned in the notice have been got up for the purpose of justifying his conduct.
It is difficult to believe that the wife, who has given birth to about 8 children and has got a boy aged about 23 and a daughter aged about 19, should think at this late stage of her life of developing romance with another man and with that object should think of deserting her husband, with whom she has been living happily with all these years.
3. As already stated, when the husband and wife quarrelled, each attacked the other most bitterly and margin must be allowed for the anger which one developed against the other. The husband was very much enraged at the wife leaving him and as the law allows him to marry four wifes he has taken another wife, an Anglo-Indian, who, according to him has been converted into a Muslim. Equally, the complainant who has been his sole wife, must have got very much annoyed with the husband when be took a second wife at this late stage in his life. Her separation cannot for that reason be accounted as due to misconduct on her part. After going through the evidence I am satisfied that unnecessarily much dirt has been thrown at the wife for no sufficient reason.
I am of the opinion that this is not a case which must have come to court at all. There is litigation pending between the husband and wife in regard to the properties and it would have been far better if both the husband and the wife had listened to the good advice of friends and stopped away from coming to court. But having come to court we have to see whether the allegations made against the wife are of such a nature as to fall under exception 9 to Section 499.
The husband has now pronounced divorce, i.e., talak, talak, talak, in a letier which he his written to the wife. Ex. P. 8. Under Exception 9, it is not defamation to make an imputation on the character of another, provided that the imputation be made in good faith for the protection of the interest of the person making it or for the public good. The question is whether this allegation of inchastity is necessary to be made for the protection of the appellant's interests.
4. It seems to me that under the law no reason need be given for pronouncing talak. If that is so, however much religion may enjoin a person to give reasons for pronouncing talak, so long as the law does not require it, it was not necessary for the appellant to have made this allegation when pronouncing the falak. It was not necessary for the protection of his interests. The case, therefore, tioes not fall within-exception 9 to Section 499 I, P. C. As already stated, it is quite unnecessary to go into the truth or otherwise of the allegations. I am satisfied on the evidence that the wife, the complainant, is not proved to have been guilty of the conduct alleged by this appellant.
I may also mention that the proceedings that the wife has taken against the husband with whom she had lived for so long alive are quite unnecessary and uncalled for. A little more restraint on per part would have smoothened matters.
5. A point of law has been taken by Mr. Kasturi that the husband and wife are one in criminal law, therefore, when the husband makes certain imputations against the wife, the wife cannot complain against the husband. He relies on the Full Bench decision of our High Court in In re, Venkatareddi, ILR 36 Mad 216 (A), in support of his contention. No doubt the decision in, ILR 38 Mad 216 (A), supports his contention in that except for the qualified privileges mentioned in the ten exceptions to Section 499, with regard to the other matters the English Common law doctrine of abso-lute privilege still prevails. But this view of the Full Bench has not been approved in Tiruvengada Mudali v. Tripurasundariammal, ILR 49 Mad 728 : (AIR 1926 Mad 906) (B), where a Fuller Beach has dissented from this decision. In coming to their conclusion, the following observatio is have been made by the learned Judges at page 737 (of ILR Mad) : (at P- 909 of AIR):
'We are of opinion that the privilege defined by the exceptions to Section 499 I. P. C. must he regarded as exhaustive as to the casts which they purport to cover and that recourse cannot be had to the English common law to add new grounds of exception to those contained in be statute. A: the same time, we desire to guard ourselves against laying down any principle wider than that necessitated by this reference. The reference relates to the position of a complainant and the 8th exception and the illustration to it show clearly that the exception was meant to apply to complainants. The question of privilege that may attach to an advocate or a witness is no before us and we express to opinion as to whether it might or might not be possible to distinguish their positions.
It is these observations of the learned Judges of the Full Bench that are relied on by Mr. Kasturi in support of his contention that the English common law doctrine of absolute privilege prevails in India. But in Queen Empress v. Butchi, ILR 17 Mad 401 (C), it has been held that there is no presumption of law that a wife and husband constitute one person in India for the purpose of criminal law. So far as this position of a husband and wife is concerned, there is no decision either directly overruling the above 'decision or following it.
So, the contention of Mr. Kasturi based on the principle that husband and wife are one in criminal law and therefore the common law doctrine of England applies to India also cannot-stand in the face of the above decision which lays down that there is no presumption of law that a husband and wife constitute one person in India for the purpose of criminal law. This is a Bench decision of this court, It is on the very question whether husband and wife are one in criminal law. It is, therefore, binding on me. Following that decision I hold that a husband and wife arc not one. It cannot, therefore, be said that a wife cannot complain against the husband and vice versa if one d frames the other. The allegation's being defamatory and not being made for the protection of his interests, the guilt of the appellant is established. The conviction is, therefore, justified.
6. As regards the sentence, the fine of Rs. 500 seems to be far too excessive. It is a quarrel between husband and wife. For the moment both have lost their heads. I think the ends of justice would be met by reducing the fine to Rs. 10.
7. In the result, the conviction is confirmed but the fine is reduced to Rs. 10. The excess fine, if paid, will be refunded.