Indian Kanoon - Search engine for Indian Law

17. In the light of the above authorities it may be doubted if the Court should strictly administer to Hindus the English Common Law of Slander, which has been described as an artificial law, resting on the most artificial distinctions (see the judgment of Lord Haldane in Jones v. Jones (1916) 2 A.C. 481.

18. There are only two reported cases in which the precise question before us has arisen, viz., Bhooni Money Dossee v. Natobar Biswas (1901) I.L.R. 28 C. 452 and Hirabai Jehangir v. Dinshaw Edulji. (1926) I.L.R. 51 B. 167 In the first of these cases it was held by Harrington, J., that by the Common Law of England introduced into Calcutta by the Charter 13 Geo. I an action of slander in respect of an imputation of unchastity was not maintainable by a Hindu woman without proof of special damage. In Hirabai Jehangir v. Din-shazv Edulji (1926) I.L.R. 51 B. 167 a Bench held that such an action was maintainable by a Parsi woman in the Presidency Town without proof of special damage. The learned Judges were of opinion that the anomaly presented by a state of law which permitted a husband charged with adultery to maintain an action, (the charge of adultery implying the commission of a criminal offence punishable by the Penal Code), without proof of special damage, but which, if the contention for the defendant slanderer prevailed, would not permit his wife charged with adultery (adultery not being a penal offence in the woman under the Code) to maintain an action without proof of special damage, was a circumstance which made the English rule of law in actions for slander of woman inapplicable. If it was simply a matter of choice between the decisions in Bhooni Money Dossee v. Natobar Biswas (1901) I.L.R. 28 C. 452 and Hirabai Jehangir v. Dinshaw Edulji (1926) I.L.R. 51 B. 167. I should be disposed to prefer the view of Harrington, J., that there is nothing repugnant to justice and equity in requiring a person who is claiming compensation for slander to prove that some damage has been caused to him or her thereby; the more so, having regard to the effective remedy there is at hand to the slandered person against the slanderer in Sections 499 and 500 of the Indian Penal Code. But the cases in this country have gone so far in the direction of relaxing restrictions on the maintainability of suits for defamation that I think it is not now possible to confine suits such as the present one to cases where special damage is proved Thus, in Parvathi v. Mannar (1884) I.L.R. 8 M. 175 it was held by Sir Charles Turner, C.J. and Muthuswami Aiyar, J., that the rule of law requiring a woman to prove special damage in a suit for slander was not founded on natural justice and should not be imported into British India. In Sukkan Teli v. Bipad Teli (1906) I.L.R. 34 C. 48 it was held, following a course of decisions in the Calcutta High Court and on the authority of Parvathi v. Mannar (1884) I.L.R. 8 M. 175 that where words are defamatory in themselves, and not mere verbal abuse, they are actionable though no special damage is proved. A similar rule has been laid down by the Allahabad High Court: see Daman Singh v. Mahip Singh (1888) I.L.R. 10 A. 425 and Harakh Chand v. Gamga Prasad Rai. (1924) I.L.R. 47 A. 391 Mr. Duraiswami Aiyar, the earned Counsel for the appellants, has urged that these were cases which came to the High Court on appeal from the mofussil, and that they were governed by a different rule, that of justice, equity and good conscience, which Section 21 of the Letters Patent requires shall be administered by the High Court in the exercise of its appellate jurisdiction. The; Court in Sukkan Teli v. Bipad Teli (1906) I.L.R. 34 C. 48 appears to have distinguished the decision in Bhooni Money Dossee v. Natobar Biswas (1901) I.L.R. 28 C. 452 on that ground. But, in my judgment, no distinction is to be made between suits arising within or without the limits of the High Court's Original Civil Jurisdiction. "Equity and good conscience," said their Lordships of the Judicial Committee in Waghela Rajsanji v. Shekh Masludin1 (1926) I.L.R. 51 B. 167 "are generally interpreted to mean the rules of English Law if found applicable to Indian society and circumstances." The words "Justice and Right" in the Charters mean the same thing, according to the judgment of Sir Barnes Peacock to which reference has already been made. There is, then, no reason why one rule should be applied under the Charters and another rule under the Letters Patent. The conclusion I come to upon a consideration of the authorities is that Eddy, J., was right in holding that the plaintiff's suit was maintainable: without proof of special damage, and that the appeal fails.