Sham Sunder vs State of Punjab

Dr. Sarojnei Saksena, J.

This is a desperate, dejected, rejected and discarded lovercumhusband''s revision petition, whose petition filed under Section 9 of the Hindu Marriage Act for restitution of conjugal rights was dismissed by the matrimonial Court vide judgment Exhibit P1 and who is now convicted and sentenced under Section 500 of the Indian Penal Code to undergo rigorous imprisonment for 9 months and to pay a fine of Rs. 1500/ in default further rigorous imprisonment for three months.

Brief resume of the facts of the case is that complainantHarbhajan Singh is the father of Satvinder Kaur. Long back Satvinder Kaur''s maternal uncle was married to the sister of accusedpetitioner Sham Sunder. On 19.12.1984 accusedpetitioner filed a petition under Section 9 of the Hindu Marriage Act which was decided against him on 1.3.1986. During the pendency of that matrimonial case, on 28.9.1985 the complainantrespondent filed this complaint under Section 500 of the Indian Penal Code against the accusedpetitioner.

In the complaint, the complainant averred that his daughter Satvinder Kaur is unmarried and is residing with him in his village Khun Kalan. In the petition filed under Section 9 of the Hindu Marriage Act, accusedpetitioner pleaded that his marriage with Satvinder Kaur was performed on 5.2.1984 in the Gurdwara of village Lodhi Chak in the presence of friends and relations. Gurnit Singh, Swaran Dass, Tara Devi, Prithvi Raj, Mohinder Singh and Tirath Singh were the witnesses to this marriage. After the marriage, he and Satwinder Kaur cohabited as husband and wife and she gave birth to a son Ashwani Kumar on 1.11.1984. The child died on 3.11.1984. The entries of his birth and death were made in the Birth and Death registers.

The complainantrespondent averred in his complaint that this daughter was never married to accusedpetitioner and she never gave birth to a son from the loins of accusedpetitioner. On receiving the summons issued by the Matrimonial Court, Satwinder Kaur and the complainantrespondent appeared in the Court, the aforesaid false allegations were read out to them in the Court in the presence of Daya Singh and Daulat Singh of village Lodhi Chak. According to the complainant, these false allegations have disgraced and defamed him in the eyes of his community people and his covillagers. Hence, he filed the complaint.

After recording the preliminary evidence, charge under Section 500 of the Indian Penal Code was framed against the accusedpetitioner, who pleaded not guilty and claimed trial. During the trial, the complainant examined himself, Daulat Singh PW2 and Days Singh PW3 and also tendered in evidence judgment of Shri S.K. Chopra, Additional District Judge, Hoshiarpur dated 1.3.1986 whereby petitioneraccused''s petition filed under Section 9 of the Hindu Marriage Act was dismissed. In his examination under Section 313 of the Code of Criminal Procedure, accusedpetitioner has reiterated that a valid marriage was solemnised by him with Satwinder Kaur in the Gurdwara of his village and in this wedlock, Satwinder Kaur gave birth to his son Ashwani Kumar on 1.11.1984, who died on 3.11.1984. He also examined Dev Raj, Chowkidar DW1, Udho DW2, Gurcharan Singh DW3 and Sewa Singh DW4 to prove his defence plea.

The learned Trial Magistrate, on scanning evidence adduced by the parties, found the complainant''s evidence more reliable and holding that the accused has committed an offence under Section 500 of the Indian Penal Code, he was convicted, as stated above, vide judgment dated 22.9.1986.

Petitioneraccused filed an appeal before the Additional Sessions Judge, Hoshiarpur, which was also dismissed on 7.5.1987. Hence, this revision.

Petitioneraccused''s learned counsel argued with all vehemence at his command that both the Courts below have fallen into an error in relying upon the judgment, Exhibit P1, because according to him, the findings recorded by the Civil Court in that case do not bind the Criminal Court. To support this contention, he has relied on B.N. Kashyap v. Emperor, AIR 1945 Lahore 23.

According to me this contention has little force. No doubt, in this judgment, a Full Bench of Lahore High Court has held :

" A finding on certain facts by a civil Court in action in personam is not relevant before the criminal Court when it is called upon to give a finding on the same facts. Similarly the finding on certain facts by the criminal Court is not relevant before the civil Court when it is called upon to give a finding on the same facts."

Their Lordships'' further held :

"To hold that when a party has been able to satisfy a civil Court as to the justice of his claim and has in the result succeeded in obtaining a decree which is final and binding upon the parties it would not be open to criminal Courts to go behind the findings of the civil Court is to place the latter without any valid reason in a much higher position than what it actually occupies in the system of administration and to make it master not only of cases which it is called upon to adjudicate but also of cases which it is not called upon to determine and over which it has really no control. There is no reason why the decision of the civil Court particularly in an action in personam should be allowed to have greater sanctity."

With great respect to the above findings recorded by the Full Bench of Lahore High Court, in my considered view, the judgment delivered by the Matrimonial Court is a judgment in rem and is conclusive between the parties in view of Section 41 of the Evidence Act.

Subject to impeachment on the grounds mentioned in Section 44, a domestic judgment in rem, in civil proceedings conclusive evidence for or against all persons, whether parties, privies or strangers, of the matters actually decided. It is also, as between parties and privies, conclusive of the grounds of the decision where these have been put in issue and actually decided by the Court, but as between strangers or a party and a stranger, it is no evidence of the truth of such grounds, except upon questions of prize where it is conclusive if the ground of condemnation is plainly stated. Where in an order of adjudication a transfer has been found to be fraudulent and therefore an act of insolvency, the finding, under Section 116 of the Presidency Towns Insolvency Act, is conclusive against the transfer even though it was passed in his absence and without notice to him. In England, a foreign judgment in rem is generally conclusive against strangers only upon questions of prize, where the ground of condemnation is plainly stated; or of marriage and divorce, where the marriage was solemnised and the parties domiciled in the foreign country, or of bankruptcy, as to contracts made in such country; or of probate, administration, and guardianship to a limited extent. In India, there is no legislative provision recognizing the conclusive operation of foreign judgments in rem against strangers, as Section 13 of the Civil Procedure Code limits the conclusivenes of foreign judgments between the parties thereto and their privies. It seems, however, that on the analogy of the practice of the English Court, foreign judgments in rem will receive in India the same recognition as is accorded to them in England.

The principle of the conclusiveness of judgments in rem as regards persons is, that public policy for the peace of society requires that matters of social status should not be left in continual doubt; and as regards things that, generally speaking, everyone who can be affected by the decision may protect his interest by becoming a party to the proceedings.

A judgment by the District Judge in the exercise of jurisdiction conferred upon him by the Hindu Marrige Act, 1955, falls within the purview of Section 41 of the Indian Evidence Act and the decision given in the exercise of such matrimonial jurisdiction is conclusive not only against the parties to the proceedings, but against the whole world, i.e. such a judgment would operate as judgment in rem. From the judgment, Annexure P1, it is evident that the Matrimonial Court has held that "petitioner has failed to prove conclusively that he was legally married to Satwinder Kaur." To this extent, the judgment is admissible/relevant under Section 41 of the Indian Evidence Act. It has conclusively decided the alleged marital status of accusedpetitioner with Satwinder Kaur. In B.N. Kashyap''s case (supra), the judgment delivered by the Matrimonial Court was not under consideration before the Full Bench.

It is also pertinent to mention that before this petition filed under Section 9 of the Hindu Marriage Act could be finally decided by the Matrimonial Court, the complainantrespondent lodged this complaint on 28.9.1985 against the accusedpetitioner under Section 5 of the Indian Penal Code.

Accusedpetitioner''s learned counsel strongly objected that the complaint was not maintainable in view of the mandatory provisions of Section 199 of the Code of Criminal Procedure. This objection is not sustainable. Section 199 of the Code provides that :

"No court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence :

Provided that where such person is under the age of eighten years or is lunatic or is from sickness or infirmity unable to make Complaintrespondent has not filed this complaint averring that his daughter has been defamed by the accusedpetitioner by filing the petition under Section 9 of the Hindu Marriage Act, but his specific allegation is that thereby the accused has defamed him and lowered him in the estimation of covillagers and his own community people, therefore, for his own defamation, he has filed this complaint.

Now it is to be considered whether the complainant has proved offence under Section 50 of the Indian Penal Code beyond resonable doubt. In such a complaint, the complainant is required to prove the ingredients of this offence. The offence of defamation consists of three essential ingredients, namely :

(1) making or publshing any imputation concerning any person;

(2) such imputations must have been made by words either spoken or intended to be read or by signs or by visible representations; and

(3) the said imputation must have been made with the intention to harm or with knowledge or having reason to believe that it will harm the reputation of the person concerned. Therefore, the intenton to cause harm is the most essential "sine qua non" of an offence under Section 499 IPC.

In the complaint, there is no averment that imputation made in the petition under Section 9 of the Hindu Marriage Act was made with the intention to harm or with knowledge of having reason to believe that it will harm the reputation of the complainant. There is no evidence worth the name to prove these essential ingredients of an offence under Section 499 of the Code.

The accused is taking plea of ''good faith''. He is taking recourse to Exceptions 8th and 9th of Section 499 of the Indian Penal Code. In Chaitan Charan Das v. Raghunath Singh, AIR 1959 Orissa 141, a Division Bench of Orissa High Court held :

"It is true that by virtue of Section 105 of the Evidence Act, the Court is bound to presume the absence of circumstances which would bring the offence within any of the special Exceptions contained in Section 499 Penal Code, and the burden would primarily rest on the accused to show that Exception applied. But it is well known that the burden cast on the accused in a criminal case, by virtue of Section 105 of the Evidence Act, is not so onerous as the primary burden cast on the prosecution to prove the offence beyond reasonable doubt. If, therefore, on a careful review of the circumstances under which the complaint was made and the other events which have come to light, it appears to the Court that one of the Exceptions to Section 499, Penal Code may possibly apply, the accused may be held to have discharged his burden."

In this judgment, the Division Bench has further held that :

"Where some passages in a petition are alleged to be defamatory, the document should be read as a whole, with a view to find out the main purport, and too much importance should not be attached to a few isolated passages here and there."

Considering the aforementioned third ingredient of this offence, the Division Bench held :

"that in judging whether the accused had such intention or knowledge, the circumstances under which and the main object with which the application containing the defamatory statement was sent including the prayer asked for from the Minister, and the background of the dispute between the parties before the Endowment Department, should all be considered. If, after a careful consideration of all these facts it did not appear that the accused had the necessary intention or knowledge it was not proper to place him on trial for an offence under Section 500 Penal Code."

The Exception 9 refers to any imputation made in good faith, whereas the 8 Exception applies only to true imputation made or the public good. That he acted in good faith must be proved by the accused. Question of good faith is a question of fact and has to be decided in course of the trial and at the initial stage.

In determining the question of good faith regard should be had to the intellecutual capacity of the accused, his predilections and surrounding facts. The standard of care and caution required by the expression "good faith" varies with the circumstances of each case.

It is not essential that, before a person can be held entitled to the privilege of having made a statement in good faith for the protection of his interests, he should establish that every word he has spoken or written is literally true. If, having regard to facts and circumstances within his knowlege, he might, as an ordinarily reasonable and prudent man, have drawn the conclusions which he has expressed in defamatory language for the protection of his own interests, he may fairly be held to have made out his good faith.

In this connecton reference may gainfully be made to the observations made by the Apex Court in Chaman Lal v. The State of Punjab, AIR 1970 S.C. 1372 with regard to the offence of defamation and 8 and 9 Exceptions.

The Apex Court has held :

"The Eighth Exception to Section 499 of the Indian Penal Code indicates that accusation in good faith against the person to any of those who have lawful authority over that person is not defamation...."

"The Ninth Exception states that if the imputation is made in good faith for the protection of the person making it or for another person or for the public good it is not defamation......" Good faith requires care and caution and prudence in the background of context and circumstances. The position of the person making the imputation will regulate the standard of care and caution. Under the Eighth Exception statement is made by a person to another who has authority to deal with the subjectmatter of the complaint whereas the Ninth Exception deals with the statement for the protection of the interest of the person making it. Interest of the person has to be real and legitimate when communication is made in protection of the interest of the person making it."

In order to establish good faith and bona fides, it has to be seen firstly circumstance under which defamatory matter was writen or uttered; secondly, whether there was any malice; thirdly, whether the accused made an enquiry before he made allegations; fourthly, whether there are reasons to accept version that he acted with care and caution and finally whether there is preponderance of probability that the accused acted in good faith.

"The privilege is a qualified one and not absolute. A person who deliberately makes defamatory statements without justification is not protected. To claim protection either under Exception 8 or 9 to Section 499, it is the claimant who must prove good faith.

The requirements of "good faith" and ''Public good'' have both to be satisfied in order to invoke Exception 9. Even when there is private communication for pubic good, the accused has necessarily to prove that he made it in good faith.

To avail of the benefit of Exception 8 the accused must prove that the accusations were made to a person in authority over the party accused, and that the accusations were preferred in good faith. This exception does not formulate any rule of absolute privilege."

These are the observations made by Justice M.U. Shah in Gulab Chand Bhudarbhai Soni v. The State of Gujarat and another, AIR 1970 Gujrat 171. His Lordship further held that :

"Definition of ''good faith" in Section 52 is a negative definition. It indicates that an act is said to be done in good faith when it is done with due care and attention. Indeed, it does not require logical infallibility. The plea of good faith may be negatived on the ground of recklessness indicative of want of due care and attention if the imputations in question, have been made as categorical statements of facts."

"Degree of proof required to substantiate that plea of good faith is as in civil proceedings not required to prove his plea beyond reasonable doubt."

In Harbhajan Singh v. State of Punjab, AIR 1966 SC 97, Gajendragadkar, C.J., speaking for the Court has in this connection observed at page 101 (see AIR 1970 Gujarat 171) :

"....There is consensus of judicial opinion in favour of the view that where the burden of an due lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That, no doubt, is the tet prescribed while deciding whether the prosecution has discharged its onus to prove the guilt of the accused, but that is not a test which can be applied to an accused person who seeks to prove substantially his claim that his case falls under an Exception. Where an accused person is called upon to prove that his case falls under an Exception, law treats the onus as discharged if the accused person succeeds "in proving a preponderance of probability." As soon as the preponderance of probability is proved, the burden shifts to be prosecution which has still to discharge its original onus. It must be remembered that basically, the original onus never shifts and the prosecution has, at all stages of the case, to prove the guilt of the accused beyond a reasonable doubt....."

The observations further at page 102 of the report are:

"It will be recalled that it was with a view to emphasizing the fundamental doctrine of criminal law what the onus to prove its case lies on the prosecution, that Viscount Sankey in Woolmington v. Director of Public Prosecutions, 1935 AC 462 observed that "no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained." This principle of common law is a part of the criminal law in this country. That is not to say that if an Exception is pleaded by an accused person, he is not required to justify his plea; but the degree and character of proof which the accused is expected to furnish in support of his plea, cannot be equated with the degree and character of proof expected from the prosecution which is required to prove its case".

"In order to claim good faith in prosecution for defamation accused must show that before making alleged imputation he had made enquiry with due care and attention and that he was satisfied about the truth of that imputation. Emphasis is on enquiry, care and objective (not subjective) satisfaction." This observation has been held in Sukra Mahto v. Basudeo Kumar Mahto and another, 1971 Crl.L.J. 1168. (See also Prayagdutt Tiwari and another v. Gajadhar Prasad Tiwari, 1977 Cr.L.J. 1258).

Keeping these principles of law in mind, the evidence adduced by the parties was required to be scanned minutely. Both the courts below were required to see how this burden is discharged by the accused. The accused has examined Udho DW2, Lambardar of village Lodhi Chak, who has deposed that he witnessed the marriage of accused petitioner with Satwinder Kaur, which was performed with four Lawans around the holy Guru Granth Sahib in the Gurdwara of village Lodhi Chak. He also deposed that at the time of performance of this marriage, Swaran Dass, his wife, Tirath Ram and Iqbal Krishan, Sarpanch were also present.

Gurcharan Singh DW3, resident of village Moonak Kalan, is the Granthi, who claims to have performed the disputed marriage of the accused with Satwinder Kaur in the Gurdwara of village Lodhi Chak. Accused also examined Sewa Singh DW4 of village Jhansa, who deposed that he resided in one portion of house No. 687, Phase III, Mohali from 1982 to 1985 and in another portion of the same house accused and Satwinder Kaur also resided together from December 1983 to September, 1984 in one room. This witness also deposed that accused and Satwinder Kaur went away from Mohali for some time. When they returned, they told him that they have got married. This defence evidence is not believed by the Trial Court. He has not relied on the statement of Gurcharan Singh DW3 on the count that he is not a Granthi of the village of the accused. Even the parents of the girl were not present at the time of marriage ceremony. The marriage was not performed in the village of complainant as is usual practice. The accused has not examined even his mother or sister to prove the factum of the said marriage. He has not proved that after the marriage accused and the bride resided with parents of the accused for some time. He also commented that from the statement of Sewa Singh DW4, it appears that even before the alleged marriage, the accused was residing with and cohabiting with Satwinder Kaur at Mohali and was having illicit relations with her. Vikramjit Singh who is brotherinlaw of accused and maternal uncle of Satwinder Kaur, was not examined by him. He would have been the best witness to prove the factum of said marriage. Thus, this evidence was not relied on.

If Gurcharan Singh DW3 was a Granthi of another village, there was no reason to disbelieve his sworn testimony on this simple ground. he categorically stated that he got the marriage performed with four Lawans around the holy Guru Sahib in the Gurdwara of village Lodhi Chak.

Udho DW2 also deposed that he was also present at the time of performance of the said marriage. If accused has not examined his mother or sister of Vikramjit Singh to prove the said marriage, it cannot be said that he had not discharged the burden which lay on him to prove the Exceptions 8 and 9 of Section 499 of the Indian Penal Code. Sewa Singh DW4 has proved that in Mohali he was residing in a portion of house No. 687 Phase III and in another room of this house, accused and Satwinder Kaur resided from 1982 to 1985 and they also admitted before him that they have got married. This evidence was admissible under Section 50 of the Evidence Act. This evidence raises a strong presumption that they wee living as husband and wife, if not as legally wedded husband and wife. The learned courts below have failed to consider this broad distinction between the two relationships.

The statement of Dev Raj, DW1 is also not found trustworthy by the trial Court on the ground that he does not say that he was the person who made original entries in the relevant registers at Exhibits DA and DB. These entries were made by the previous Chowkidar. The said Chowkidar has been withheld by the accused. The midwife Kailash Kaur whose name is mentioned in Exhibit DA was also not produced. She was the best witness to throw light on the birth of the son to Satwinder Kaur. The lower Court commented that the accused himself is a member of Panchayat. DW1 Dev Raj has stated that the entries Exhibits DA and DB were made in the register. The registers were in the custody of Sarpanch Iqbal Krishan, who was also not examined. The lower Court commented that "apart from it when accused can make false allegations of marriage with Satwinder Kaur, he can also forge entries in the Birth and Death Registers of the Panchayat, especially when the present Sarpanch Iqbal Krishan has got no enmity with him."

The learned trial Magistrate has utterly failed to consider the provisions of Sections 35 and 114 of the Evidence Act. The entries in the Birth and Death Registers are Public documents and are admissible under Section 35 of the Evidence Act and it is not necessary to prove who made the entries and what was the source of his information. The register, being a Public document, presumption of correctness attaches to it and heavy onus lies on the party who wants to dispute the presumption. The complainantrespondent has not adduced any evidence in rebuttal.

During the trial, the accusedpetitioner made a prayer to get Satwinder Kaur medically examined to find out whether she has given birth to a child earlier, but his prayer was vehemently opposed by the complainantrespondent and ultimately, his prayer was declined. If he would have been allowed to lead that evidence, that would have either totally negatived his defence plea or would have lent cogent and reliable corroboration to his defence plea and to the testimony of his witnesses, as stated above. Hence, adverse inference against the complainant was required to be drawn by the trial Court on this court. In this connection, it is also pertinent to mention that in this criminal case even Satwinder Kaur has not dared to enter the witnessbox. On that count also an adverse inference was required to be drawn against the complainant.

From the judgment, Exhibit P1, it is evident that she wrote letters Exhibits A to D. In connection with these letters, the Matrimonial Court has observed :

"Para 5 : Parties have led evidence on the above issues. An application has also been made to get the expert opinion about the scribe, author and signatory of letters marked A to marked D, placed on the record, as being the present respondent Satwinder Kaur, by comparison of her handwriting and signatures on the admitted documents with the disputed signatures/handwriting on the letters marked A to marked D."

"Para 6 : Almost whole of the evidence has already been led and in case these documents are proved to be in the handwriting and under the signatures of the respondent but the petitioner fails to prove a legal marriage between the two then any finding on these letters to be in the hand of the respondent, addressed to the petitioner, would afford a tool to the petitioner even to blackmail her. It is in these circumstances that it has already been ordered, vide my separate detailed order dated 21.2.1986 that it has been directed that these letters can definitely by taken into consideration on the premises that even if these were written or were signed by Satwinder Kaur, respondent, what would be their effect on the case. Admitted these letters by themselves above do not prove the marriage."

Thus, it is evident that even the Matrimonial Court was of the opinion that letters marked A to D were written by Satwinder Kaur to the accusedpetitioner but he was not allowed to get them examined by handwriting expert holding that it would provide a tool to the petitioner to blackmail her.

Even in this criminal case the complainant admitted on oath that the accused got some papers signed by his daughter then why he was shirking and was opposing the accusedpetitioner''s prayer to get these letters examined by the expert. This further lends support to his defence plea. Parties are not strangers as Satwinder Kaur''s maternal uncle was long back married to the accusedpetitioner''s sister. It seems that she was enamoured by the accused; she wrote letters to him, which in the eyes of her father, were objectionable; therefore, prayer of the accused for adducing the evidence with regard to these letters was opposed by the respondent. The accused has proved facie facie that she resided with him in Mohali for few months; gave birth to a child also, but later on under the parental influence she deserted him and started denying her marriage with accusedpetitioner. In this backdrop it is natural that when Satwinder Kaur and accusedpetitioner decided on their own to enter into the matrimonial alliance, the alleged marriage was not performed in the village where the complainantfather is residing and that performance of the said alleged marriage was not witnessed by the parents or other relations of Satwinder Kaur.

No doubt, accusedpetitioner has failed to prove that he was legally married to Satwinder Kaur, but in this criminal case to bring his defence within the Exceptions 8 and 9, he was not required to prove his case beyond reasonable doubt, the burden is to the extent of preponderance of evidence only as in civil cases, then again burden shifts to the complainant to discharge his burden of proof of the allegation of defamation beyond reasonable doubt. He has failed to discharge even his initial burden. When after the death of his son, the wife Satwinder Kaur also deserted him and left him all alone, then in utter desperation, he filed the petition under Section 9 of the Hindu Marriage Act before the Matrimonial Court to seek the relief of restitution of conjugal rights. If she would not have lived with him as his wife, he would not have filed such a petition. No oblique motive, malice ill will, mala fide intention, intention to defame the complainant or Satwinder Kaur are pleaded in the complaint or proved by the complainant.

Thus, in my considered view, both the courts below have fallen into an error in finding the accused guilty of the offence of defamation. Resultantly, revision is hereby allowed. Accused is acquitted of the charge under Section 500 of the Indian Penal Code. Fine, if deposited, be returned to him.