1. The plaintiff in this case sues the defendant for slanders imputing unchastity to the plaintiff.
2. The defendant denies that he uttered the words in question, and alleges that, if spoken, they are mere vulgar abuse, and that in any case they are not actionable without proof of special damage, and no special damage is alleged in the plaint.
3. The parties reside in adjoining house. A quarrel broke out between their respective families; in the course of that quarrel the defendant said something, which caused the plaintiff to prosecute him before the Magistrate under Sections 500 and 504 of the Penal Code, on the ground that he had made imputations on her chastity. The defendant appeared to the summons, apologized and expressed his regret; whereupon the charges were withdrawn.
4. It is alleged by the plaintiff that on the following day this dispute broke out again, and that the defendant not only uttered slanderous words about her in the presence of Sarat Chunder Shaw, Sada Nundo Shaw and Behary Lall Shaw, but also requested Sarat Chunder Shaw to warn his father not to accept from or extend hospitality to her on the ground that she was an unchaste woman.
5. The slanderous words alleged to have been spoken in the presence of the Shaws were addressed to the plaintiff in Bengali; translated into English they are 'You are a prostitute. I will publish before all the caste people that you are a prostitute. I took you to the garden-house at Kalighat, and had sexual intercourse with you.' Sarat Chunder Shaw and Behary Lall Shaw depose, that they heard the defendant speak these words to the plaintiff; the defendant on the other hand denies that he ever spoke the words and says, that if the imputations were true, he himself would be liable to be excommunicated.
6. In my opinion the evidence for the plaintiff is to be believed. In the first place it is very unlikely that the plaintiff, who had just accepted an apology from the defendant, would re-open the matter without a fresh cause of offence, and moreover, when tested by cross-examination, she and the witnesses, who were called on her behalf, appeared to be telling a truthful story. The defendant on the other hand says he never abused the plaintiff on any occasion and suggests that the Magistrate was responsible for the apology he is said to have made in the Police Court That I do not believe. I have no doubt that he did abuse the plaintiff and that, when brought up in the Police Court, he did apologize and withdraw what he had said. In view of the way he has given his evidence as to the first quarrel, I am not disposed to give credit to his account, rather than to the plaintiff's account, of the second quarrel.
7. The speaking of the other slander complained of is deposed to by Sarat Chunder Shaw. I think words of the purport alleged were spoken, for the defendant admits in cross-examination that he used to go about saying he would have nothing to do with the plaintiff.
8. On the evidence, therefore, I find as a fact that the slanders complained of were spoken and published concerning the plaintiff.
9. It is asserted that they are mere vulgar abuse. In my opinion they are not. They convey a distinct imputation of unchastity, and allege specific charge of an act of immorality.
10. The next question is, has any special damage been alleged or proved by the plaintiff
11. In the plaint no special damage is alleged: the 8th paragraph only alleges such general damages as would not support an action for slanderous words nor actionable per se, if brought in England.
12. The evidence which has been given is not such as would have supported any statement of special damage, which could have been framed. The plaintiff herself stated in examination in chief that Sarat Chunder Shaw, to whom the slander was published, has accepted her hospitality, since the slander, and that she herself had been invited out just as before. She did indeed state that Jibon Kristo Shaw, Hubbo Churn Shaw and some other person had not been to her house, but she did not connect them with the slanders in any way. As the case stood at the close of the plaintiff's examination-in-chief, there was no sort of evidence of any actual damage of any kind whatever. But the defendant cross-examined on this point and did elicit that a statement had been made in her hearing as to why those persons would not come to her house, and, when asked in re-examination what the statement was, the plaintiff said that it was this, that they had refused to come in response to an invitation, because of the imputations cast on her.
13. Sarat Chunder Shaw is the only person, who is called, who professes to have ceased going to the plaintiff's house, because of the slanders uttered by the defendant. But I disbelieve him on this point. First because he is flatly contradicted by the plaintiff; secondly, because he did not warn his father, as the defendant desired him to, and, as I believe, he would have done, if he had seen any reason for avoiding the plaintiff's house; thirdly becuase he admits he did not believe the slanders, and, if he did not believe them, he had no reason for avoiding the plaintiff's house. There is nothing to show that any words spoken by the defendant induced Jibon Kristo Shaw, Habbo Churn Shaw, or any other man to refuse the plaintiff's hospitality. My conclusion on this part of the case is that no actual damage has been proved to have been caused to the plaintiff, and no evidence moreover has been given to shew that conduct such as that imputed to the plaintiff would have subjected her to any penal or quasi-penal consequences at the hands of the members of her caste. On the facts, therefore, L find that the defendant spoke and published the words complained of by the plaintiff, that those words conveyed the imputation that the plaintiff was unchaste; that they were spoken falsely and maliciously, but that they caused the plaintiff no actual damage whatever.
14. On these facts two contentions are raised by the plaintiff: (i) That the words convey an insult and that, for the mental distress caused by such insult, damages are recoverable, and (ii) that the words are defamatory and are actionable without special damage.
15. The first of these propositions was unsuccessfully propounded in this Court in the Full Bench case of Girish Chunder Hitter v. Jatadhari Sadukhan (1899) I.L.R. 26 Cal. 653. I am bound by the decision of the majority of the Court in that case and with that decision I thoroughly agree.
16. There is no instance in English law in which an action on the case for mental distress caused by a criminal or tortious act will lie. A wrongful act causing death might subject the wrongdoer to punishment for manslaughter; it might cause the acutest mental distress to a. parent or child of the deceased, but it gave no right of action at Common Law., and even under Lord Campbell's Act the damages recoverable for such a wrong are strictly limited to the actual pecuniary loss sustained, and do not include sentimental damages.
17. In Wilkinson v. Downton (1897) 2 Q. B. 57 the lie told must have caused the plaintiff the acutest mental distress, but it was the physical suffering consequent on nervous shock which formed the ground on which damages were claimed.
18. Although mental distress caused to the plaintiff may be taken into consideration in aggravation of damages, alone it gives no right to recover damages. The English Law on the subject was laid down in the House of Lords by Lord Wensleydale in these words: 'Mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone: see Lynch v. Knight (1861) 9 H. L. C. 577. 598; and that statement, since the Full Bench decision to which I have referred, express what is the law here.
19. The next question, namely, whether defamatory words imputing unchastity to a woman are actionable in this country without proof of special damage was left open by the Full Bench case, to which I have referred.
20. Under the Law of England as it stood prior to 1891 such words would not have been actionable without proof of special damage. Is that law to be applied in this country
21. It is stated in Morley'a Digest, Vol. I, p. XXII, that the Common Law of England, as it prevailed in 1726, is the law administered by the Supreme Courts, and that statement is treated as correct by Lord Kings-down in the case of the Advocate-General of Bengal v. Ranee Swnomoye Dassee (1892) 2 Q. B. 254 in which he observes that ' the English Law, civil and criminal, has been usually considered to have been made applicable to natives, within the limits of Calcutta, in the year 1726 by the Charter 13 Geo. I.' This must be taken subject to certain limitations, many provisions of the English Law, as for example that under which bigamy is a felony, were obviously unsuitable to the natives of this country and were therefore not introduced.
22. But there is nothing unreasonable, having regard to the customs of this country, in holding that, that part of the Common Law of England which gave a person injured by slanderous words the right to recover damages in an action has been introduced. In my opinion it is by virtue of the Common Law of England introduced into Calcutta by the Charter of 1726 that the action is maintainable.
23. It may be laid down that under the English Law the malicious publication of any falsehood, oral or written, whether defamatory or not, if it is calculated to produce and does produce actual damage, gives a right of action to the person damaged by such publication: See Ratcliffe v. Evans (1863) 9 Moo. I.A. 387, 426.
24. There are certain conditions under which the false and malicious publication of words gives a right of action notwithstanding that no actual damage is proved to have been produced. These are, when they are defamatory and are committed to writing, when they impute that the plaintiff is guilty of a crime, when they impute that he is suffering from infectious or contagious disease, or when they impute misconduct or incompetence to the plaintiff in the way of his business. These are the exceptions; in all other cases (except those arsing under the Slander of Women Act, 1891) the regular rule is followed, namely, that words to be actionable must be proved to have caused actual damage. The existence of the rule and the exceptions appear to have been recognized by the Legislature of this country when the Limitation Act, Schedule 2, Article 25 was passed.
25. Several cases were cited by the plaintiff, of which the most important is the case of Parvathi v. Mannar (1884) I.L.R. 8 Mad. 175 in which it was held at Madras by Sir Charles Turner, C. J., and Muthusami Ayyer, J., that words imputing unchastity to a woman were actionable without proof of special damage. The learned Judges after pointing out that the cases on the subject are conflicting, condemn the rule of law, which enable damages to be recovered for the publication of written defamatory matter without proof of actual injury, while it calls for that proof in the case of oral slander; and, in holding that the action will lie, say the true test of the right to maintain the suit should be whether the defamatory expressions were sued at a time and under such circumstances as to induce in the person defamed a reasonable apprehension that his reputation has been injured, and to inflict on him the pain consequent on such a belief ' and further they say that the person, who deliberately defames another, ought to be made responsible in damages for the mental suffering his wrong-doing occasions.
26. Kashiram Krishna v. Bhadu Bapuje (1870) 7 Bom. H. C. A. C. 17 which was cited in support of the plaintiff's case, is expressed to be a suit in the mofussil between Hindus, to which English Law is not to be applied. Jogeshwar Sharma v. Dinoram Sharma Bhattacharjee (1898) 2. C.W.N. 123 (Notes) is only cited from the law notes of the C.W.N., and the note is necessarily too much compressed to give the reasons for the judgment.
27. In Dawan Singh v. Mahip Singh (1888) I.L.R. 10 All. 425, 456 the very lengthy judgment, which was delivered by Mahmood, J., turned on the question, whether abuse was actionable.
28. Of the cases cited therefore, the only one, which really supports the plaintiff's case, is that which was decided by the Madras High Court (1884) I.L.R. 8 Mad. 175, and when the test laid down in that case is examined, it is found to involve the proposition that damage ought to be recoverable for mental distress alone, and that is a proposition, which has been shown by the Full Bench decision, to which I have referred, to be untenable.
29. But ought this particular class of slander, i.e., that imputing unchastity to a woman, to be added to the list of exceptions to the general law and to be held to be actionable, where no damage is proved to have been caused
30. It is urged that this should be so, because English Judges in certain cases, notably Lynch v. Knight (1861) 9 H. L. C. 577 and Roberts v. Roberts (1864) 33 L. J. Q. B. 249 have made strong comments on the unsatisfactory state of the English Law. No doubt the law in England previous to the passing of the Slander of Women Act was unsatisfactory: the Courts had placed a very narrow construction on what was the special damage necessary to support the action, and, unless the slanderous words were reduced into writing, the criminal law afforded no redress. But those reasons do not apply here; the slanderer can be punished criminally, whether his slanders are reduced into writing or not. A successful prosecution in the Criminal Courts would dear the character of any slandered lady as effectually, and probably more effectually than it would be cleared, if she were entitled to claim pecuniary compensation for damage, which she was unable to prove she had suffered.
31. Where it is proposed to depart from the rules of English Law, which have been introduced into this country, it must be shown that those rules, if adhered to, in this country, will work an injustice or hardship. Here no injustice is worked by an adherence to those rules, because in cases where the person aggrieved is unable to prove that he has suffered actual damage, he can call in the criminal law to punish the wrong-doer. Prima facie there is nothing repugnant to justice, equity and good conscience in calling on a person, who is claiming pecuniary compensation for damage caused by a wrongful act, to prove that some damage has been caused to him by the act of which he complains.
32. In my opinion the plaintiff has failed to show that the rules of English Law applicable to the present case ought to be departed from, and, inasmuch as the words are not per se actionable and no damage in fact has been alleged or proved, the action must be dismissed with costs.