Allegations Of Husband’s Impotency In Divorce Case Not Defamatory: Bombay High Court

A Bench of Justice SM Modak held, "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."

Background

The dispute originated from a series of matrimonial proceedings initiated by the wife, including a divorce petition, an application for maintenance, and an FIR all of which referenced the husband's alleged impotency. The husband, claiming that these statements were defamatory, filed a complaint which was dismissed by a Magistrate in April 2023 under Section 203 of the Criminal Procedure Code (CrPC). The Magistrate ruled that the statements were made during judicial proceedings and found no basis for criminal intimidation.

However, on a revision petition by the husband, the Additional Sessions Judge directed the Magistrate to conduct a further inquiry under Section 202 CrPC, reasoning that the complainant had not been afforded an opportunity to examine his witnesses.

Challenging this remand order, the wife, along with her father and brother, approached 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 disregarded the Magistrate’s correct interpretation of the law. Their counsel asserted that the impugned statements were clearly tied to the wife’s claims of mental cruelty and neglect under the Hindu Marriage Act, and therefore attracted the protection of the ninth exception to Section 499 IPC, which covers imputations made in good faith and for the protection of one’s interests.

The husband, in response, contended that the allegations were unsubstantiated, made without due care, and became defamatory once entered into the public judicial record. He also cited the limitation period for filing a defamation complaint, arguing that he could not wait for the matrimonial proceedings to conclude.

Findings

The High Court, however, found that the allegations of impotency were directly relevant to the issues raised in the divorce and maintenance proceedings and were made in furtherance of the wife's legal claims. The Court also took note that there was no prior judicial finding either confirming or disproving the claim of impotency.

The Court observed, "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 Court concluded that the Sessions Court erred in remanding the case without sufficiently addressing the Magistrate’s legal reasoning. It held that the revisional court had not made any prima facie observation regarding the Magistrate’s finding that impotency was a ground for divorce, nor had it provided adequate justification for interfering with the dismissal order.

Accordingly, the High Court set aside the remand order issued by the Sessions Court and quashed the defamation complaint filed by the husband.

Cause Title: X & Ors. v. Y & Anr., [2025:BHC-AS:32358]

Appearance:

Petitioners: Advocates Shyam Dewani, Sachet Makhija, Dashang Doshi

Respondents: Advocates Ghanshyam Mishra, Ekta Bhalerao, Ekta Mistry and H.J. Dedhia

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