The Court held that the wife cannot be prosecuted for defamation for making such an allegation in her pleadings in the matrimonial case against her husband.
The Bombay High Court recently held that a wife’s allegation of her husband’s impotency, made during matrimonial litigation, is not defamatory and is legally justified [P v VIG].
Justice S.M. Modak ruled that such a claim, when made in court pleadings, is protected under the ninth exception to defamation as outlined in Section 499 of the Indian Penal Code (IPC), and therefore does not warrant prosecution.
“The court feels that when the litigation is in between both the spouses arising out of a matrimonial relationship, the wife is justified in making those allegations to support her interest. As said above, there is no judicial finding given by any Court in either way. So this Court feels that these allegations fall within the exception Ninth to Section 499 of IPC,” the Court said.
The Court stated that allegations of impotency are highly relevant in a Hindu marriage petition.
“That is to say when the wife alleges due to impotency it has caused mental cruelty to the wife, she is certainly justified in making those allegations. So the grounds of impotency even though may not be primarily necessary, the allegations are on the basis of incidents that took place between their matrimonial life. As such they are very much necessary. Even on a maintenance petition in order to show neglect and refusal, these allegations of impotency are as such relevant,” the single-judge ruled.
The Court was hearing a petition filed by the wife along with her father and brother, challenging an April 2024 order by the Additional Sessions Judge, Greater Mumbai, which directed further inquiry into a defamation complaint lodged by the husband.
The husband claimed that the wife had made defamatory remarks about his sexual potency across multiple proceedings, including her divorce petition, a maintenance application, and an FIR filed with the police.
In April 2023, the Magistrate dismissed the husband’s complaint under Section 203 of the CrPC, noting that the allegations were made during matrimonial proceedings and that there was no evidence of criminal intimidation.
However, the Sessions Court later ordered the Magistrate to re-examine the matter and initiate an inquiry under Section 202 CrPC, stating that the complainant had not been given a chance to present his witnesses.
This prompted the wife to approach the High Court with a plea.
The petitioners contended that the Sessions Court’s decision to remand the case was based on a ground not mentioned in the husband’s revision application and failed to consider the Magistrate’s finding that such allegations, when made during judicial proceedings, fall under the exceptions to defamation.
Their counsel further argued that the statements were relevant to the issues under the Hindu Marriage Act, such as proving mental cruelty and neglect, thereby attracting the protection of the ninth exception under Section 499 IPC.
In response, the husband claimed the allegations were baseless, made in bad faith, and became inherently defamatory once they entered the public domain.
He argued that he couldn’t wait for the matrimonial proceedings to conclude, as the limitation period for filing his complaint was nearing expiry.
However, the Court accepted the wife’s plea and set aside the Sessions Court’s remand order.
It held that the allegations were directly connected to the wife’s claims in the divorce and maintenance proceedings, and thus protected under the law.
The Court also noted that the Sessions Court should have provided proper reasoning before directing the Magistrate to reconsider the case.
“When the complaint was dismissed for the reason that impotency is a ground of divorce, the learned Revisional Court while remanding the matter ought to have made some prima-facie allegations about the said finding… I find they are missing”
Accordingly, the Court quashed the Sessions Court’s order and dismissed the husband’s complaint.
