The Bombay High Court recently observed that allegations of impotency made by a wife against her husband in litigation arising out of matrimonial disputes are justified and do not amount to defamation [P v VIG]. 

Justice SM Modak held that the wife cannot be prosecuted for defamation for making such an allegation in her pleadings in the matrimonial case against husband since the same is protected by the ninth exception to defamation under Section 499 of Indian Penal Code (IPC).

"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. 

In a Hindu marriage petition, the allegations of impotency are very much relevant, the Court stated.

"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, her father, and her brother challenging the April 2024 order of the Additional Sessions Judge, Greater Mumbai, who had ordered further inquiry in a defamation complaint filed by the husband. 

The husband alleged that the wife had made defamatory statements about his sexual potency in multiple litigations including her petition for divorce, application for maintenance and in an FIR before the police. 

The magistrate dismissed the husband's complaint in April 2023 under Section 203 CrPC, holding that the allegations were made in the course of matrimonial proceedings and that there was “nothing on record to show” any criminal intimidation.

However, the sessions court later directed the Magistrate to reconsider the case and conduct an inquiry under Section 202 CrPC, observing that the complainant was not given an opportunity to examine his witnesses.

This led to the plea by the wife before the High Court.

The petitioners argued that the sessions court’s remand was based on a ground not raised in the husband’s revision memo and overlooked the magistrate’s finding that such allegations, when made in judicial proceedings, are protected by the exceptions to defamation. 

Their counsel also submitted that the imputations were relevant to the issues in the proceedings under Hindu Marriage Act such as to prove mental cruelty and neglect and thus attracted the ninth exception to Section 499 IPC. 

The husband countered that the allegations were unwarranted, made without good faith and became per se defamatory once they formed part of the public record. 

He insisted that he could not wait for the conclusion of the matrimonial cases because the limitation period for filing his complaint would expire.

The Court allowed the wife's plea and quashed the remand order by the sessions court.

It ruled that the allegations were closely tied to the wife’s claims in the divorce and maintenance proceedings and therefore, protected by law.

It further said that the sessions court ought to have given reasons before remanding the matter to magistrate's court. 

"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"

Hence, it set aside the sessions court order and dismissed the husband’s complaint.

Advocates Shyam Dewani, Sachet Makhija and Dashang Doshi instructed by Dewani Associates appeared for wife and her kin.

Advocates Ghanshyam Mishra along with Ekta Bhalerao instructed by advocate Ekta Mistry appeared for husband.

Additional Public Prosecutor HJ Dedhia appeared for the State