J. Gnana Kumar vs Joy Kanmani

S. Nagamuthu, J.—The petitioner is the sole accused in C.C. No. 37 of 2006 on the file of the Judicial Magistrate No. VI, Madurai and the

respondent is the complainant.

The petitioner is the husband of the respondent. The respondent has filed a private complaint against her husband for an alleged offence

punishable u/s 500 IPC. Seeking to quash the same, the petitioner herein has come forward with this petition.

The respondent has filed a case in D.O.P. No. 37 of 2005 before the Family Court, Madurai u/s 33 of the Indian Divorce Act seeking for a

Decree for restitution of conjugal rights. In the said petition, she has stated that the petitioner has deserted her and he is living in adulterous life with

one Muthulakshmi.

In the said D.O.P., the petitioner herein has fled a counter dated 19.10.2005. In the said counter, among other things, the petitioner has stated

that the respondent had developed illicit intimacy with one Arthur Sundarrajan and he used to visit her house during the absence of the petitioner

herein and so also the respondent used to visit Virudhunagar to see him without the knowledge of the respondent. On one occasion when the said

Aruthur Sundarrajan came to his house, the petitioner who was then present, instructed him not to come again. In reply Arthur Sundarrajan had

informed the petitioner that if his wife (respondent herein) says so, he would stop visiting his house. When the petitioner enquired about it, the

respondent informed him that if he adjusted with the said Arthur Sundarrajan, then alone his life would be peaceful.

Alleging that the above said statement of the petitioner contained in the counter affidavit amounts to defamation, the respondent has filed the

above private complaint in C.C. No. 37 of 2006 to punish the petitioner u/s 500 IPC.

Learned Counsel for the petitioner would submit that one of the essential ingredients for constituting an offence u/s 500 IPC is that there must be

publication of the defamatory statement to the knowledge of a third party. Further, according to the learned Counsel, merely making certain

allegations in the counter even if they are false, the same would not satisfy the requirements of Section 499 IPC. He further added that the

statement made in the counter is true and therefore, making such true statement in the counter will not amount to defamation.

Per contra, learned Counsel for the respondent submits that making a statement in good faith is one of the exceptions to Section 499 IPC. But,

whether such statement was made in good faith or not a question of fact which requires to be proved or disproved only at the time of trial of the

case.

Learned Counsel for the respondent further contends that the counter affidavit filed before the Matrimonial Court is accessible to third parities

and thus, the statements made in the said counter is deemed to have been published to the knowledge of third parties and as such the act of the

petitioner satisfies the requirement of Section 499 IPC.

I have considered the rival submissions and perused the records.

One of the basic legal requirements of Section 499 IPC is that the imputation should be either made directly to the knowledge of third parties

or the same should be published to the knowledge of third parties. In this case, even as per the allegations made in the complaint, it is not as if the

imputation said to have been made by the petitioner was published either directly or indirectly. Thus, in my considered opinion, the act of the

petitioner does not satisfy the requirement of Section 499 IPC so as to attract the offence punishable u/s 500 IPC.

The contention of the learned Counsel for the respondent that the counter filed in the lower Court is accessible to third parties and in such a

way there is publication of defamatory statement, is only to be rejected. Pleadings filed before the Courts of law are not public documents to which

any body can have free access. Further, as per Section 499 IPC, the publication should be made by the accused to third parties. It is true that it is

handled by the court staff and copy is furnished to the respondent herein, which can be made public even by the respondent. But these things

would not amount to publication by the accused.

Thus, in my considered opinion, in the absence of the satisfaction of the basic requirement of publication of imputation by the accused, the

complaint is liable to be quashed.

Learned Counsel for the petitioner relied on the judgment in C.H. Kadar and Another Vs. Munnilakkath Valappil Fousia, , wherein a the

learned single Judge of the Kerala High Court, has taken a similar view.

The next contention of the learned Counsel for the petitioner is that the statement contained in the counter reflects only the truth and making

such a statement would not amount to defamation. But I do not want to go into this question at this stage for the reason that whether the statement

is true or not is a matter to be either proved or disproved on evidence before the lower Court by the respective parties.

The question of good faith pleaded by the petitioner has also got no relevance at this stage. Since good faith is a question of fact to be proved

before the lower Court, I do not deem it proper to go into the question whether the statement contained in the counter affidavit is true or not and

whether the allegation was made in good faith or not. However, I am inclined to quash the case on the sole ground that making certain allegations

in the counter filed before the Court would not satisfy the requirements of Section 499 IPC at all.

In the result, Criminal O.P. is allowed and the case in C.C. No. 37 of 2006 on the file of the Judicial Magistrate No. VI at Madurai is

quashed.

At this juncture, learned Counsel for the respondent submits that the Family Court, Madurai may be directed to explore the possibility for

compromise between the parties since the dispute is essentially matrimonial in nature. Learned Counsel for the petitioner also agrees for the same.

In view of the said submissions, the Family Court, Madurai is directed to explore the possibility of compromise between the parties in D.O.P.

No. 37 of 2005.