Bombay High Court rules that a wife’s allegation of impotency against husband in divorce plea is not defamation; quashes criminal complaint, citing IPC exception

Important Paras Of judgment

15. It is her case that the husband was not capable of intercourse and according to husband these allegations have damaged his reputation. The learned Advocate for the Respondent has pointed out to me a certificate showing that there is a son begotten from the said marriage. In this petition we are not deciding whether the allegation of impotency is true or false and whether the husband is capable of intercourse or not. We have only to decide whether these imputations are made without good faith and and not for protecting the interest of the maker.

16. This 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 falls within the exception Ninth to Section 499 of IPC. The Accused No.2 is a father of Accused No.1 and Accused No.3 is the brother. It is their case that they have been joined unnecessarily in that particular case.

17. The power under Section 482 of the Code and Article 227 of the Constitution has to be exercised when there is a misuse of the process of the Court. So just because there is no order of issuance of process, it does not mean that the petition is filed at pre-mature Uploaded on – 31/07/2025  Downloaded on – 31/07/2025 17:20:28 LSP 14 903 wp 2686.24.doc stage. This issue has already been clarified by the Supreme Court

                                                                            18. The ratio in case of X v/s . Y will not be helpful to the Complainant for the reason the Supreme Court has already clarified the issue on this aspect. The learned Single Judge has laid down certain principles where it can be said offence of defamation. It finds place in Para No.16. It was also a case wherein defamatory allegations are made in a petition challenging the order of interim custody of a daughter. On the basis of such allegations about impotency only criminal law was set in motion. There is a discussion about availability of an option of filing writ petition and filing revision application. Learned Judge deal with facts in para no. 23 and gave its findings in para no. 24. learned Judge held evidence need to be adduced. The learned Single Judge was pleased to dismiss the petition but this Court is bound by the law which is interpreted by the Hon’ble Supreme Court. I am inclined to allow the petition.

 

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Bombay High Court Judgment – Divorce – Defamation – The Law Literates

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