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40. There is, indeed, a series of decisions to be found in the published reports upon the subject, but they are so silent as to general principles and so conflicting with each other that I cannot accept them to represent any defined rule of the common law of India. The state of the present law and my views thereupon are represented in what I have before now said elsewhere in the following words:

Defamation, as representing slander and libel consolidated, is an offence against reputation only, and, therefore, as the English law now stands, publication to a third person or persons is a condition precedent to its being regarded as actionable wrong; so that insulting words of however grave a nature, when addressed only to the plaintiff, do not amount to a tort, even though the insult be directly followed by mental distress or vexation leading to inability to attend to one's ordinary avocations of life. Again, even where insulting words are orally uttered in public, proof of special or actual damage is necessary, except in certain well-defined cases, to render them actionable. An ' imputation, for example, by words however gross and on an occasion however public, on the chastity of a modest matron or a pure virgin is not actionable, without proof that it has actually produced special temporal damage to her; neither is it actionable to call a man a swindler or a cheat, a blackguard or a rogue, or to say that he is a low fellow, a disgrace to the town, and unfit for decent society, unless it can be proved that actual legal damage has resulted to the plaintiff from the slander '(Addison on Torts, p. 37).

The observations which I have ventured to make above do not, however, necessarily lead to the conclusion that anything should be added to the law of defamation in which the doctrine of publication to third persons naturally occupies an essentially important position. According to my view, the exigencies of the matter would be sufficiently met by adding personal insult' as a distinct head under the category of personal wrongs, the question whether the insult is offered in public or in private being left to take its place as an element bearing upon the assessment of damages, as in cases of assault. The effect of this would, of course, be that personal insult would be a wrong in itself, irrespective of the question whether the abusive language is published or not and whether it is expressed orally or in writing. As an illustration of my meaning, two cases to be found in the Indian Reports may be referred to. In Komul Chunder Bose v. Nobin Chunder Ghose, 10 W. E., 184, Macpherson, J., held that a letter addressed to the plaintiff himself, though containing insulting and abusive language, did not constitute a cause of action in tort, because the only damage alleged is damage to the feelings of the children, or domestics, provided the offender knew the relationship of the party so offended. So far was the principle carried by the Roman law, that even the heir was entitled to an action for an insult to the remains, or even the memory of the deceased. Et si forte cadaveri defuncti fit injuria cui haeredes bonorum possessores exstitimus, injuriarum nostro nomine habemus actionem. Spectat enim ad existitimus nostram si quae ei fiat injuria. Idemque et si fama ejus cui hceredes exstitimus acessatur. The same degree of indefiniteness which characterizes this branch of the Roman law naturally pervades, also, the codes of those nations which have adopted the principles of that law. In Scotland, for instance, the limits of civil as well as criminal liability are exceedingly wide. Thus, in the ease of Aitken v. Read and Fleming, 2 Mur. Rep 149, the Judge observed, 'There are disadvantages in allowing actions of this sort, where there is no accusation of a crime, or allegation of specific damage. By the law of Scotland, however, anything defamatory is the foundation of an action.' In the case of Mackenzie v. Read, ibid. 159, the Court, after observing that the law on the of slander in England was very particularly defined, added, 'here anything that uneasiness of mind is actionable plaintiff caused by the receipt of the letter' and 'such injury is not in itself a ground forgiving damages in a civil action.' The ruling was followed by the Allahabad High Court in Mahomed Ismail Khan v. Mahomed Tahir, N. W. P. H. C. R., 1874, p. 38, and is no doubt in conformity with the English law. In the latter of these cases I was myself engaged as counsel for the plaintiff, and I well remember how I failed to induce the Bench to depart from the rule of English law and to adopt the view that personal insult causing mental distress should in itself be recognised as actionable wrong in India, apart from the subject of defamation.

47. I am aware that in laying down this rule I am departing from the English common law, but there is no legislative authority for holding that that law is applicable to such cases in the mufassal, whilst the case-law of British India, as I have already shown, does not adopt the rules of the English law on the subject, the reason being that such rules in their entirety are not fitted for the conditions of the Indian populations. Language may be abusive and insulting, though it states the truth, and it may cause grave injury to the most tender feelings of the human heart. No person who for example is illegitimate or an out-caste or has a bodily infirmity likes to be reminded of these facts in abusive terms, and if the gentlest touch or even attempt to touch under certain circumstances amounts to assault and battery and as such an actionable wrong, I fail to see why violent abuse should not be an actionable wrong, unless, indeed, it can be said that mental pain is not to be compared with bodily suffering in granting compensatory relief.

48. But whilst laying down this rule, I must guard myself against being understood to hold that malice is not a necessary element of the wrong, for I am of opinion, that when abusive and insulting language is employed, the law will infer and presume malice, unless the defendant proves his conduct to be bond fide or shows that the occasion was privileged. I wish also to point out that nothing that I have said is to be understood as contradicting the rule laid down by the Madras High Court in Sri Raja Sitarama Krishna Rayadappa Ranga Baz Bahadur Garu v. Sri Raja Sanyasi Razu Pedda Baliyara Sim-hulu Bahadur Garu, 2 Mad., H. C. E., 4, where it was held that the omission of a mere courtesy cannot be taken to be equivalent to slandering or libelling a man and is not an actionable wrong. The case was not dealt with as one of personal insult nor was the question of malice or the question of special or actual damage considered in the case. It may have been that the omission complained of was bond fide and haying been made in a judicial proceeding was privileged. Again, the ruling of this Court in Oodai v. Bhowanee Pershad, N.W. P. H. C. Rep., 1866, p. 264, and of the Madras High Court in Subbaiyar v. Kristnaiyar, I. L. E., 1 Mad., 383, are no authorities against my view, because in both those cases the turning point of the decision was that male members of a family cannot sue for the injury or insult which they have sustained indirectly inconsequence of ill-treat nent of certain female members of the family. Indeed, in the former of these cases it was left an open question whether the female members of the family who had been insulted could not maintain an action in their own behalf, whilst the latter case, leaving the same question open, proceeded entirely upon the technical ground of the absence of locus standi in the plaintiff. How far I am prepared to accept the ground upon which those two rulings proceeded is a question which I am not called upon to determine in this case, though both those rulings are consonant with the English law, so far as I can understand those cases from the facts stated in the published reports. There is, however, another case to which I wish to refer--Pitumber Dass v. Dwarka Pershad, N.W. P. H. C. Rep., 1870, p. 435, in which it was held that making and publicly exhibiting an effigy of a person, calling it by the person's name, and beating it with shoes, are acts amounting to defamation of character for which a suit for recovery of damages will lie. The case was no doubt dealt with as falling under the rule of the English law of libel, though the learned Judges in regarding the case as one of defamation do not appear to have considered how far the effigy and its maltreatment were subject to the plea of justification. Under the English law of libel, if no such plea could be raised, the conduct of the defendants would no doubt be actionable; but according to the view which I have taken, I should probably have regarded the case as not one of defamation as understood in the English law of slander and libel, for which falsehood and misrepresentation are necessary elements, but simply as a case of personal insult and, as such, actionable, per se, as a substantive tort in itself, without proof of actual or special damage.