Wife Accusing Husband Of Impotency In Divorce Proceedings Not Defamation: Bombay High Court

A wife in her divorce petition or FIR, stating that her husband is 'impotent' would not amount to defamation, the Bombay High Court held recently while quashing a defamation case against a woman, her brother and father. 

Single-judge Justice Shriram Modak held that a wife making an allegation that her husband is impotent and this has caused mental cruelty to her, is justified. 

"In a Hindu Marriage Petition, the allegations of impotency are very much relevant. 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 judge observed in the order passed on July 17. 

The judge noted that it was the wife's case that the husband was not capable of intercourse and according to husband these allegations have damaged his reputation. The judge noted that the husband even relied upon a certificate showing that there is a son begotten from the said marriage.

In this petition, the judge said, he is not deciding whether the allegation of impotency is true or false and whether the husband is capable of intercourse or not. Rather it only needs to be decided whether these imputations are made without good faith and and not for protecting the interest of the maker, the judge said. 

"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. 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 judge held. 

The judge was dealing with the petition filed by a woman, her brother and father, all of whom were challenging a sessions court order passed on April 3, 2024, by which a Magistrate Court was asked to reconsider the complaint filed by the woman's husband.

Notably, the Magistrate had by an order dated April 15, 2023 already dismissed the husband's defamation complaint against the wife and her brother and father on the ground that the allegation of the wife that the husband is impotent, is one of the grounds for her to seek divorce. However, the husband had assailed this order before the sessions court, which ordered the Magistrate to reconsider the husband's plea. 

Aggrieved by the sessions court's order, the wife, her brother and father challenged it before the HC bench of Justice Modak, who held that the wife's allegations of impotency against the husband, as made in the FIR, divorce and maintenance petitions, cannot be considered as defamation as it falls under the ninth exception to defamation. 

"The complaint filed for offences under Section 500,506 read with Section 34 of IPC stand dismissed," the judge said while quashing the sessions court's order. 

Appearance:

Advocates Shyam Dewani, Sachet Makhija and Dashang Doshi instructed by Dewani Associates appeared for the Petitioners. 

Advocates Ghanshyam Mishra, Ekta Bhalerao and Ekta Mistry represented the Husband.

Additional Public Prosecutor HJ Dedhia represented the State. 

Case Title: PVG vs VIG (Criminal Writ Petition 2686 of 2024)

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