Case Briefs| M.C. Mehta, Section 122 IEA, Defamation IPC and Compensation

By Vivek Singh, Institute of Law, Nirma University

Editor’s Note: This paper is in the form of case briefs. The first case is the landmark M.C. Mehta case dealing with the Environment Pollution in the river Ganga. This case falls in the new category of tort where environmental tort has been committed along with constitutional tort. The second case i.e. M.C. Verghese v. T.J. Poonan and Anr. deals with privileged communication under Section 122 of the Evidence Act. The third case viz. Mahender Ram v. Harnandan Prasad deals with defamation under the Indian Penal Code. The next case is Noor Mohammad v. Mohammad Jiajddin, which deals with Section 70 of the Contract Act and the awarding of compensation for a tortuous act.

1. M.C. MEHTA V. UNION OF INDIA & OTHERS

ISSUES

This is a case dealing with Environment pollution control in Ganga and with a view to control pollution of Ganga in Kanpur area Court has directed Municipality to take measures for construction of adequate sewage system and treatment plants in accordance directions have also been given to control pollution caused by industries. Municipality directed not to give licence to any industry unless it makes provisions for treating industrial effluents and direction also given to Central Government to make sure that students are given classes on environmental protection. Court also directed all Municipalities and other local bodies to organise clean city, village week.

Public grievances: The public at large is suffering from diseases mentioned below and aquatic life is also suffering. Water-borne diseases – The classical water-borne diseases are due to highly infective organisms where only rather few are needed to infect someone, relative to the levels of pollution that readily occur. The two chief ones have a high mortality if untreated and are diseases which a community is very anxious to escape: typhoid and cholera. Both are relatively fragile organisms whose sole reservoir is man.

These two diseases occur most dramatically as the “common source out-break” where a community water supply gets contaminated by faces from a person suffering from, or carrying, one of the infections. Many people drink the water and a number of this fall ill from the infection at about the same time.

Typhoid is the most cosmopolitan of the classical water-borne infections. In man it produces a severe high fever with generated systemic, more than intestinal, symptoms. The bacteria are ingested and very few are sufficient to infect. The typhoid patient is usually too ill to go out polluting the water and is not infective prior to falling sick. However, a small proportion of those who recover clinically continue to pass typhoid bacteria in their faces for months or years; these carriers are the source of water-borne infections. Gallstones predispose to the carrier state as the bacteria persist in the inflamed gall bladder. In the tropics, lesions of Schist soma haematobium in the bladder also act as node of infection, producing urinary typhoid carriers, whilst rectal schistosomiasis combined with typhoid leads to a persistent severe fever lasting many months. Typhoid bacteria survive well in water but do not multiply there.

Cholera is in some ways similar to typhoid, but its causative bacteria are more fragile and the clinical course is extremely dramatic. In classical cholera the onset of diarrhoea is sudden and its volume immense so that the untreated victim has a high probability of dying from dehydration within 24 hours or little more.

Several other infections are water borne but are less important than typhoid and cholera. Leptospirosis, due to a spirochete, has its reservoir in wild rodents which pollute the water.

JUDGMENT

There is no doubt that the discharge of the trade effluents from the tanneries into the river Ganga has been causing considerable damage to the life of the people who use the water of the river and also to the aquatic life in the river. The effluents discharged from a tannery are 10times noxious when compared with the domestic sewage which flows into the river from any urban area on its banks. The financial capacity of the tanneries should be considered as irrelevant while requiring them to establish primary treatment plants. Just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery, which cannot set up a primary treatment plant, cannot be permitted to continue to be in existence for the adverse 282 effect on the public at large which is likely to ensue by the discharging of the trade effluents from the tannery to the river Ganga would be immense and it will outweigh any inconvenience that may be caused to the management and the labour employed by it on account of its closure.

It is the obligatory duties of the mahapalika to make reasonable an adequate provision, by any means which it is lawfully competent to it to use or to take, for firstly the collection and removal of sewage, offensive matter and rubbish and treatment and disposal thereof including establishing and maintaining farm or factory. Secondly the management and maintenance of all Mahapalika waterworks and the construction or acquisition of new works necessary for a sufficient supply of water for public and private purposes and finally guarding from pollution water used for human consumption and preventing polluted water from being so used. And effluent treatment plants should be installed by all major polluting industries.

This case falls in the new category of tort where environmental tort has been committed along with constitutional tort. Polluting the river ganga which is harm to the environment the aquatic life of the river and along with that which also causes inconveniences to public at large which puts this case in constitutional tort as well, the right to drink pure water, and right to live in a safe environment is at skate in this case. So, constitutional tort under Right to life is also been committed.

2. M.C. VERGHESE vT.J. PONNAN & ANR.

FACTS OF THE CASE

The first respondent wrote letters to his wife who is the daughter of the appellant. The letters contained defamatory imputations concerning the appellant. The letters were handed over to the appellant and he filed a complaint for defamation against the first respondent. The Magistrate held that a communication between spouses of a matter de (amatory of another did not amount to publication and that no evidence could be given of it under s. 122 of the Evidence Act, 1872, against the first respondent, and discharged him. The Court of Session set aside the order but the High Court restored it. While the appeal against the order of discharge was pending in this Court a decree of nullity of marriage was passed against the first respondent on the ground of his impotency.

Rathi daughter of M.C. Verghese was married to T.J. Ponnan. On July 18, 1964, July 25, 1964 and July30, 1964, Ponnan wrote from Bombayletters to Rathi who was then residing with her parents at Trivandrum which it is claimed contained defamatory imputations concerning Verghese. Verghese then filed a complaint in the Court of the District Magistrate, Trivandrum, against Ponnan charging him with offence of defamation.

ISSUE RAISED

Ponnan submitted an application raising two preliminary contentions—

(1) that the letters which formed the sole basis of the complaint were inadmissible in evidence as they were barred by law or expressly prohibited by law from disclosure; and

(2) that uttering of a libel by a husband to his wife was not “publication” under the law of India and hence cannot support a charge for defamation, and prayed for fan order of discharge, and applied that he may be discharged.

JUDGEMENT

DISTRICT COURT

The District Magistrate held that a communication by a husband to his wife or by a wife to her husband of a matter defamatory of another’ person does not amount in law to publication, since the husband and wife are one in the eye of the law.

In so holding, he relied upon the judgment in Wennhak v. Morgan and Wife(1). He also held that the communication was privileged, and no evidence could be given in court in relation to that communication. He accordingly ordered that Ponnan be discharged under s. 253 (2) Code of Criminal Procedure.[1]

In a revision application filed by Verghese before the Court of Session, the order was set aside and further enquiry into the complaint was directed. In the view of the learned Sessions Judge the doctrine of the common law of England that a communication by one spouse to another of a matter defamatory of another person does not amount to publication has no application in India, and s. 122 of the Indian Evidence Act does not prohibit proof in the Court by the complainant of the letters written by Ponnan to his wife.

HIGH COURT

The case was then carried to the High Court of Kerala in revision. The High Court set aside the order of the Court of Session and restored the order of the District Magistrate. The High Court held that from the averments made in paragraphs 9 to 11 of the complaint it was clear that the writing of defamatory matter by Ponnan to his wife Rathi was not in law publication, and that “if the letters written by Ponnan to his wife cannot be proved in court either by herself directly or through her father, in whose hands she had voluntarily placed them, the imputations therein fell outside the court’s cognizance and no charge under s. 500 Indian Penal Code could be deemed to be made out”.

ANALYSIS OF SUPREME COURT JUDGEMENT

It was assumed throughout these proceedings that the letters are defamatory of the complainant. Under the Indian penal Code in order that an offence of defamation may be committed there must be making or publication of any imputation concerning any person by words either spoken or intended to be read, or by signs or by visible representations, intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person. To constitute the offence of defamation there must therefore be making or publication of an imputation concerning any person and the making or publication must be with intent to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person. Unless there is publication there can be no offence of defamation committed. In England the rule appears to be well settled that except in certain well defined matters. the husband and wife ,are regarded as one and in an action for libel disclosure by the husband of the libel to his wife is not publication. In Wennhak’s case(1) Manisty, J., observed: “ …… the maxim and principle acted on for centuries is still in existence viz., that as regards this Case, husband and wife ‘are in point of law one person.” The learned Judge examined the foundation of the rule and stated that it was, after, all, a question of public policy or, social policy.

But the rule that husband and wife are one in the eye of law has not been adopted in its full force under our system of law and certainly not in our criminal jurisprudence. In Queen Empress v. Butch(2) it was held that there is no presumption of law that the wife and husband constitute one person in India for the purpose of the criminal law. If the wife, removing the husband’s property from his house, does so with dishonest intention, she is guilty of theft. In Abdul Khadar v. Taib Begum(5) the Madras High Court again held that there is no presumption of law in India that a wife and husband constitute one person for the purpose of criminal law, and therefore the English common law doctrine of absolute privilege cannot prevail in India.

Verghese has complained that he was defamed by the three letters which Ponnan wrote to Rathi Ponnan, however, says that the letters addressed by him to his wife are not–except with his consent–admissible in evidence by virtue of s. 122 of the Indian Evidence Act, and since the only publication pleaded is publication to his wife and she is prohibited by law from disclosing those letters. no offence of defamation could be made out. So stated the proposition is in our judgment, not sustainable. Section 122 of the Indian Evidence Act falls in Ch. IX which deals with evidence of witnesses in proceeding before the court. That section provides:

“No person who is or has been married shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall be permitted to disclose any such communication. unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.”

The section consists of two branches—

(1) that a married person shall not be compelled to disclose any communication made to him during marriage by his spouse; and

(2) that the married person shall not except in two special classes of proceedings be permitted to disclose by giving evidence in court the communication, unless the person who made it, or his representative in interest, consents thereto.

When the letters were written by Ponnan to Rathi, they were husband and wife. The bar to the admissibility in evidence of communications made during marriage attaches at the time when the communication is made, and its admissibility will be adjudged in the light of the status at the date and not the status at the date when evidence is sought to be given in court.

Hence Appeal Allowed.

3. MAHENDER RAM V. HARNANDAN PRASAD 

FACTS OF THE CASE

The plaintiff is a respectable man and a man of substantial means and holds on esteem position among the public. The plaintiff’s son had purchased a house contiguous south of the defendant’s house and was constructing the same. The defendant sent a registered notice in urdu from sultanpur to the plaintiff in siwan. The plaintiff was not conversant with urdu script and therefore he made Kurban Ali read the notice in front of several persons.

ISSUES OF THE CASE

It was a defamatory notice and contained false allegations against him and he was very much surprised and pained by them. The defamatory statement lowered the plaintiff in the estimation of the public and harmed his reputation. He suffered both mental and physical injuries.

2ND ISSUE ON THE SIDE OF THE DEFENDANT

Plaintiff had filed a suit in order to harass the defendant in all possible ways. He again argued that the notice was forged and it was fabricated document and the plaintiff had not been lowered in his estimation as the notice was false and fabricated.

Similar cases can be referred:

  1. Dukes of Burnswick V Harmer (1850)
  2. Komul Chunder Bose V Nobin Chunder Ghosh

Defamation:

Any intentional false communication, either  written or spoken, that harms a person’s reputation; decrease the respect, regard or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person.

JUDGMENT

Firstly the case was in front of additional munsiff, first court of siwan, where the suit was tried for the first instance gave the judgment that the notice which was sent by the defendant had words in such order which proved that it was not a note of defamation and under such circumstances through which the letter reached to the plaintiff, the defendant had no intention in defaming the plaintiff rather the plaintiff is responsible for giving the publications of the notice and therefore he decided that the plaintiff is not liable.

Again on appeal the subordinate judge of the second court stated that the notice written by the defendant was a defamatory notice and therefore the defendant was held liable for that. As because the plaintiff did not know urdu and therefore he told Kurban Ali to read the notice as “It is very well known from the principles of torts that the publication of defamation is complete as soon as the letter containing it is posted in a post office.”- Therefore the court held the defendant liable to pay compensation to the plaintiff.

The letter contains the words “ Tum log tohjalia ho. Mokadamabahutkarte ho. Mokadmakarnekobharosehar-dam zabardastikarte ho. Hum aisedhokhebaazaadmikenokankirayadenanahipasandkarege.”

The first part of the letter did not use any defamatory words but the second part is clearly defamatory unless they are brought within any of the exceptions as enumerated in sec. 99 of IPC.

In this particular case the defendant did not succeed in bringing his case within any of the exceptions and therefore the learned subordinate judge hold that Ext. 1 contained defamatory words and would certainly harm the reputation of the person to whom they were written if the words get publication. But then here the plaintiff had to prove that the defamation has been published.

4. NOOR MOHAMMAD V. MOHAMMAD JIAJDDIN

FACTS OF THE CASE

The case was filed by Rukhsana’s Father in the trail court claiming that his daughter got married to Sher Mohammad, son of Noor Mohammad, on the morning of 16/4/1976. It was said that sum of Rs. 2000 was paid by the appellant to the defendant as expenses paid for gas and light which was used in barat. Appellant also paid sum of Rs. 6000 for the arrangement of meal served for the said 250 baratis and 2000 invitees. Further, on the demand of money for the services of nautch-girl claimed by the defendant, which was rejected by appellant that aggravated the defendant as a result Defendant and barat returned in the afternoon leaving back the bride angry with the plaintiff. The bride was dishonored and was neglected for two years as defendants took no steps during that period to take her away to the matrimonial home. This act by the defendant was considered as the hampering the reputation of the plaintiff and his daughter as they were said to be respectable person in the society. Hence, they claimed reimbursement of Rs. 6000 for meal, Rs. 2000 as cash paid for lighten gas and band and extra Rs. 3000 as the loss for reputation.

Defendants filed a joint written statement claiming that the Barat consisted of 50 persons only and another 200 to 300 persons attended the marriage as guest and invitees of the plaintiff; that only two meals were served to the Barat; that no payment was made to them for Gas-light and Band by the plaintiff to whom they made no demand even for the services of the nautch girl. They claimed that They admitted the marriage but claimed that the plaintiff quarreled with them and drove away the Barat refusing to send the bride with them. They set up the case that at the time of showing the dowry the bridegroom was abused and was told by plaintiff’s mother that he could take away dowry and also the bride if he agreed to live under the toe of her shoes. When defendants wanted dates for bidai (for taking the bride to matrimonial home) the plaintiff avoided them. Defendant No. 2 (bridegroom) had gone to plaintiff’s place accompanied by Maiuddin, Kaji Wajiu-rulla, Munshi Hassan Mohammad and Salamatulla to bring home the bride but plaintiff refused to send his daughter. Defendants had not insulted the bride and the claim was false.

ISSUES OF THE CASE

Trial Court framed six issues on the above pleadings and on discussion of the evidence adduced by parties decided the material issues in plaintiff’s favour. It was found and held that plaintiff had suffered loss of reputation and on that ground he was entitled to be compensated for mental pain and suffering in the sum of Rs. 3,000/- by defendant No. 1. For serving two meals to the bridegroom’s party and guests on the occasion of the marriage plaintiff was found to have spent Rs. 2,700/- and he was held entitled to claim reimbursement of that amount from defendant No. 1. It was also found that Rs. 2.000/- was paid in cash by the plaintiff to defendant No. 1 which the latter was liable to refund. The case set up jointly in written statement by the defendants was disbelieved mainly on the ground that the bridegroom (defendant No. 2) could have proved that and his failure to enter the witness-box was fatal other important witnesses too had not been examined.

It was to be decided that weather the amount claimed by the plaintiff whom he had paid is true or not. It was also the matter of discussion that the returning of the barat affected the reputation of the plaintiff and his daughter. The question whether legally the claim was rightly allowed will be examine due course. Legality of another claim of reimbursement of Rs 2000 as cash payment by the plaintiff to defendant is also to be examined.

Whether the defendant demanded payment to be paid for the services of nautch girl and case filed by them is true of not. Was the Barat sent back without the bride and whether the bridegroom was insulted when dowry was being shown?

JUDGMENT

Court affirmed the decision of the trial court of allowing the plaintiff’s claim for Rs 2700 against Rs 6000 for the meal and Rs. 2000 for gas light and band. As a witness, P.W. 2 and P.W. 6 stated that the payment was made in their presence from the side of plaintiff, able to convince the court. Court was impressed by the statement of P.W. 6 as he was the independent witness and gave his statement in the favor of the plaintiff.

Plaintiff’s right to demand reimbursement of expenses incurred by him in connection with the marriage can be related justifiably to his duty to the bride, as her marriage-guardian, to enforce her right of residence and maintenance at her husband’s house. He had undisputed legal authority to act in her behalf in that regard by bringing an action for recovery of the expenses from the bridegroom and also his father as both, it has been established on evidence, were parties to the illegal act of denial of the right of the duly and validly marriage daughter of the plaintiff to be taken to her husband’s house for her residence and maintenance there.

Court according to the Section 70 of the contract Act made defendant 1 and defendant 2 equally liable for reimbursement of two sums of Rs.2,000/-and Rs. 27.000/- respectively. Court held that was evidently a non-gratuitous act, the benefit of which was enjoyed by both defendants. On the question of the compensation for Rs. 3000/- for defamation, court held that in the instant case, demand from the plaintiff money to be paid for the services of the nautch-girl employed by the defendants was evidently intimidator. The threat was indeed carried out by the illegal act of abandoning the bride at the marriage-hall in full and complete violation of the injunction of the marriage law applicable to the parties. That act of both defendants was positive, intentional and also unlawful. It caused the plaintiff and her daughter loss of reputation. If the matter is looked at from constitutional angle, the wrong of the defendants emerge in a magnified form. They had challenged the “dignity of the women” in violation of their Fundamental Duty contemplated under Article 51 A(e) as they indulged in a practice which, in Indian society, is regarded as derogatory to women’s dignity.

For the records aforesaid, trial Court’s decree awarding compensation in the sum of Rs.3000/- to the

Plaintiff against defendant No. 1 for his tortuous act is affirmed. In the result the appeal fails and is dismissed. Parties are left to bear their own costs in this Court, in the

facts and circumstances of the case.

[1] CrPC, s. 253. Conviction on plea of guilty in absence of accused in petty cases –

  1. 253(2) The Magistrate may, in his discretion, convict the accused in his absence, on his plea of guilty and sentence him to pay the fine specified in the summons, and the amount transmitted by the accused shall be adjusted towards that fine, or where a pleader authorised by the accused in this behalf pleads guilty on behalf of the accused, the Magistrate shall record the plea as nearly as possible in the words used by the pleader and may, in his discretion, convict the accused on such plea and sentence him as aforesaid.

Edited by Hariharan Kumar

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