Evidence Law

M.C. Verghese v. T.J. Ponnan

AIR 1970 SC 1876; (1970) 1 SCC 37

Facts

T.J. Ponnan wrote several letters to his wife, Rathi.
Rathi was the daughter of M.C. Verghese.
The letters allegedly contained defamatory statements about Verghese.
Rathi handed the letters to her father.
Verghese filed a criminal complaint for defamation against Ponnan.
Ponnan sought discharge on the grounds that:
communications between spouses were privileged under Section 122 of the Evidence Act;
communication only to one’s wife did not amount to publication for defamation.
The Magistrate discharged him.
The Sessions Court ordered further inquiry.
The Kerala High Court restored the discharge.
During the proceedings, Rathi obtained a decree declaring the marriage null because of Ponnan’s impotency.
Verghese argued that:
the letters were physically in his possession;
he could prove them independently;
the later nullity decree removed the marital privilege.

Whether Rathi could disclose letters communicated to her by her husband during marriage.
Whether Section 122 made the letters themselves inadmissible from every possible source.
Whether subsequent nullity of the marriage removed the protection.

Section 122 of the Evidence Act protects communications made between spouses during marriage.
A spouse:
cannot be compelled to disclose such communications;
cannot voluntarily disclose them without the maker’s consent, except in proceedings:
between the spouses; or
concerning an offence committed by one spouse against the other.
The privilege continues even after the marriage ends, provided the communication was made during a legally subsisting marriage.
The section restricts disclosure by the spouse who received the communication.
It does not necessarily make the communication itself inadmissible when it can be proved through an independent source.
A letter may be proved through:
handwriting evidence;
admission by the writer;
possession and surrounding circumstances;
another legally competent witness.
Whether the independent proof is sufficient is determined at trial.

Rathi could not enter the witness box and disclose what Ponnan had communicated to her during marriage.
The defamation case was not:
a proceeding between the spouses;
a prosecution for an offence committed by one spouse against the other.
Therefore, the statutory exceptions did not apply.
The subsequent decree of nullity did not retrospectively erase the marriage.
The marriage remained legally effective until the decree was passed.
Communications made before the decree remained protected.
However, the lower courts went too far by treating the letters as completely inadmissible.
Section 122 protects the spouse from disclosing the communication.
It does not declare that:
the document ceases to exist;
no other person may prove it;
handwriting or authorship evidence becomes irrelevant.
Verghese already possessed the letters.
He might be able to establish that:
Ponnan wrote them;
they contained the defamatory allegations;
they had been communicated beyond Ponnan’s mind, without relying upon Rathi’s prohibited testimony.
Whether he could actually prove these matters was a question for trial.
The complaint should therefore not have been dismissed before evidence was recorded.
The Court carefully distinguished:
the testimonial privilege of the receiving spouse;
the evidentiary admissibility of the communication when proved independently.
The judgment protects marital confidence without creating a universal exclusion of every document passing between spouses.

The Supreme Court held that Rathi could not disclose the marital communications without Ponnan’s consent.
The later decree of nullity did not remove the protection.
However, Section 122 did not prohibit the letters from being proved through independent admissible evidence.
The complaint should not have been dismissed at the preliminary stage.
The discharge order was set aside, and further inquiry was directed.