Marital communications and defamation: Section 122 is an evidentiary bar, not a ground for pre-trial discharge.

A defamatory communication in letters between spouses may still support a prosecution under the Indian Penal Code, because the alleged publication cannot be rejected at the threshold on a supposed common-law exemption. Section 122 of the Indian Evidence Act operates as an evidentiary privilege for communications made during marriage, so it does not bar a prima facie inquiry or justify discharge before trial. Whether the communication is admissible in evidence must be decided at trial, and the marital status at the time of communication controls the privilege. Communications made while the marriage subsisted remain covered even if the marriage is later annulled.

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Issues: (i) Whether a defamatory communication contained in letters written by a husband to his wife could amount to publication so as to found an offence under Section 500 of the Indian Penal Code. (ii) Whether Section 122 of the Indian Evidence Act barred inquiry at the preliminary stage and justified discharge of the accused before trial.

Issue (i): Whether a defamatory communication contained in letters written by a husband to his wife could amount to publication so as to found an offence under Section 500 of the Indian Penal Code.

Analysis: The offence of defamation under the Penal Code requires making or publication of an imputation with the requisite intent or knowledge. The English common law rule that husband and wife are one person for this purpose was not accepted as a controlling principle of Indian criminal law. The statutory scheme of the Penal Code does not permit importing a common-law exemption to defeat the plain requirement that the accused may be tried on the allegation of publication, leaving the question of proof to be determined at trial.

Conclusion: The communication could not be treated as outside the scope of a defamation prosecution at the threshold, and the complaint was not liable to fail on this ground.

Issue (ii): Whether Section 122 of the Indian Evidence Act barred inquiry at the preliminary stage and justified discharge of the accused before trial.

Analysis: Section 122 protects disclosure of communications made during marriage, but it operates as an evidentiary bar when the communication is sought to be disclosed in court. It does not prevent all inquiry into a prima facie complaint, nor does it authorise discharge without evidence. The admissibility of particular evidence must be decided when the matter is tried, and the marital status at the time of communication governs the privilege. A later decree of nullity does not alter the bar attaching to communications made while the marriage subsisted.

Conclusion: Section 122 did not justify discharge at the preliminary stage, and the issue of admissible proof had to be decided at trial.

Final Conclusion: The discharge order was set aside and the matter was sent back for trial according to law, leaving the merits of the complaint to be determined by the Magistrate.

Ratio Decidendi: A matrimonial communication made during the subsistence of marriage cannot be excluded from a defamation prosecution at the threshold merely because it passed between spouses; the privilege under Section 122 is an evidentiary rule to be applied when proof is sought, not a basis for pre-trial discharge.

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