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Bombay High Court
Hirabai Jehangir Mistry vs Dinshaw Edulji Karkaria on 10 September, 1926
Equivalent citations: AIR 1927 Bom 22
Author: Marten


Marten, C.J.

1. This is a suit by a married woman for slander. The only defence now subsisting, is that without proof of special damage the suit is not maintainable. Admittedly, no special damage is shown. Accordingly, the defence raises an important and interesting question of law, and has led to the able arguments of counsel ranging over a wide field. At the outset I should make it clear that the lady has already vindicated her honour. She has prosecuted the defendant under Sections 499 and 500 of the Indian Penal Code for defamation, and he has been convicted by a criminal Court and fined Rs. 50 or in default to suffer one month’s imprisonment. His application to the High Court in revision was rejected. The only question is, whether in addition the -plaintiff can recover damages in a civil suit. Her claim is for Rs. 10,000.

2. The facts are shortly as follows : The parties are all Parsis, and occupied different flats in the same building, the plaintiff and her husband and a relative named Jamshedji occupying one flat, and the defendant another flat. A quarrel arose and the defendant brought criminal proceedings against the plaintiff and her husband, and Jamshedji, and a servant, for assault and insult. At the hearing on July 14, 1921, the Magistrate tried to settle the case, and asked the parties to state their grievances. He, accordingly, asked the defendant who Jamshedji was, and received in reply the irrelevant and defamatory statement now complained of, viz.,
he (meaning thereby the said Jamshedji) is-the kept paramour of the Bai (meaning thereby the plaintiff and) I will prove that.

3. This was apparently said deliberately and not in the heat or excitement of the moment; for when the plaintiff instituted criminal proceedings on August 5, 1921, the defendant’s pleader at the outset told the Magistrate that he was going to prove that the words complained of were true in substance and in fact. Subsequently, other counsels prevailed, and, eventually, an unqualified apology was offered, which, under the circumstances, was not accepted. An offer in Court on November 24,1925, of Rs. 1,000 in full settlement without costs was refused by the plaintiff.

4. A large number of defences were raised originally, but they have all been abandoned, with the exception of the one technical defence I have already mentioned. In particular the defence of privilege raised in paras. 9, 10 and 11 of the written statement is not persisted in under the special facts of this ease. Accordingly, we must not be taken to dissent from the English law of privilege as applied to civil cases see Satish Chandra Chakravarti v. Ram Doyal De A.I.R. 1921 Cal. 1, what ever the true view may be as regards its applicability to criminal cases in India. See same cage and Bai Shanta v. Umrao Amir .

5. Turning to the law, it is clear that no civil remedy for slander is given expressly by any of the Indian Codes. Nor does Section 112 of the Government of India Act, 1915, apply as this is not a matter of inheritance or succession, nor one of contract or dealing between party and party. Accordingly, by the conjoint effect of Sections 106 and 130 of that Act, 01. 19 of the amended Letters Patent of 1865, Clause 18 of the original Letters Patent of 1862, and Sections 8, 9 and 11 of the Indian High Courts Act, 1861, we have to apply to this case the law which would have been applied by the Supreme Court at Bombay to such case if these Letters Patent had not issued:” (see Clause 18 of the Letters Patent of 1862).

6. Turning next to the Supreme Court Charter of 1828 and numbering the clauses beginning from the operative part and neglecting the recitals, one finds that by Clause 5 the Supreme Court is
to have such jurisdiction and authority as our Justices of our Court of King’s Bench have and may lawfully exercise within that part of Great Britain called England, as far as circumstances will admit.

7. I draw particular attention to the use of the words “as far as circumstances will admit.” Further, the decided cases show that the Court of King’s Bench had jurisdiction to hear cases of slander quite irrespective of the Court of Common Pleas. There is no express clause in the Charter dealing with actions of slander. But Clause 23 gives “full power and authority to hear and determine aft suits and and actions whatsoever against” any:

such persons as have been heretofore described in our Charter of Justice for Bombay by the appellation of British subjects.

8. And Clause 24 gives a similar power as against “the inhabitants of Bombay.” The proviso to Clause 24 dealing with Mahomedans and Gentoos does not apply hero, as Parsis are not Gentoos see Lopes v. Lopes [1867-68] 5 B.H.C. (O.C.) 172. Further, Clause 25 provides that “No action for wrong or injury shall lie against” inter alia a judicial officer for any judgment of his. Slander is a wrong, or tort as the lawyers call it, and accordingly, this clause contemplates that in general an action for tort would lie.

9. This, then, being the material jurisdiction, the Court has under Clause 28 “to give judgment and sentence according to justice and right.” I need not deal with the remaining clauses of the Charter nor with the special jurisdictions thereby conferred. In particular an action for slander would not then lie in the Chancery Courts, and accordingly, we need not consider the equitable jurisdiction given by Clause 36.

10. The effect of the Charter of 1823 has been judicially considered in many cases, and, speaking generally, it has been construed as directing that the law to be administered is English Law as nearly as the circumstances of the place, and. of the inhabitants, should admit. I have already pointed out the qualifying words of Clause 5 of the Supreme Court. Charter of 1823 in this respect. In The Adv.-Gen. of Bengal v. Ranee Sumomoye Dosssee [1863] 9 M.I.A. 387 Sir Barnes Peacock, in delivering the judgment of the Supreme Court, refers at p. 394, to English law having been first introduced into Calcutta by the Charter of George I, by which in the year 1726, the first Mayor’s Court was established. A Mayor’s Court was also established in Bombay about the same time. One would infer from the first recital in the Supreme Court Charter of 1823 that your Mayor’s Court was established in 1753. But our Prothonotary, Mr. Malabari, in his ” Bombay in the Making” at p. 432 puts the date as 1726, and some years ago I verified the accuracy of the statement by personal inspection of some of our interesting old records : see also Naoroji Beramji v. Rogers [1867] 4 B.H.C. (O.C.) 1 which shows that the Charter of 1753 was the second Charter, Clause 23 of the 1823 Charter preserves the powers of the old Mayor’s Court.

11. But this is a digression, and only intended to show that in substance the history of our Court closely resembles that of Calcutta. Accordingly, Sir Barnes Peacock goes on to say (p. 398).

A Charter or Statute, by which Courts of Justice are constituted, does not necessarily determine the law which they are to administer, but in construing the Charter of ‘George I, there can be no doubt that it was intended that the English Law should be administered as nearly as the circumstances of the place, and of the inhabitants, should admit. The words give judgment according to justice and right in suite and pleas between party and party, could have no other reasonable meaning than justice and right, according to the laws of England, 90 far as they regulated private rights between party and party. Such general words could not possibly refer to any law, such as the Mortmain Act or the Alien laws, which had reference merely to some views of public policy, supposed to be applicable to England, even though private rights might be affected by them. Still less could they be supposed to refer to the rights or revenues of the Grown, depending upon prerogative and which were wholly inapplicable to territory to which the sovereignty did not extend. Then, was the law of forfeiture of the goods and chattels of a felo de se introduced by those clauses of the Charter by which the Courts of Oyer and Terminer were established ?

12. Lord Kingsdown in delivering the judgment of the Privy Council states (p. 426):

The English Law, civil and criminal, has been usually considered to have been made applicable to natives, within the limits of Calcutta, in the year 1726, by the Charter, 13th Geo. I. Neither that nor the subsequent Charters expressly declare that the English law shall be so applied, but it seems to have been held to be the necessary consequence of the provisions contained in them.

13. And at p. 429 he says:

We think, therefore, the law under consideration inapplicable to Hindus and it had been introduced by the Charters in question with respect to Europeans, we should think that Hindoos would have been excepted from its operation. But that it was not so introduced appears to us to be shown by the admirable judgment of Sir Barnes Peacock in this case ; and if it were not so introduced, then as regards Natives, it never had any existence. It would not necessarily follow that, therefore, it never had existed as regards Europeons. That question would depend etc.

14. This, accordingly, is an instance where the Courts in India have refused to apply all the special provisions of the English Law, if they were found inapplicable to the circumstances prevailing in India. Then in The Mayor of Lyons v. East India Company [1836] 1 M.I.A. 175 it is said (p. 281):

Can it then be contended, that the general introduction of the English Law draws after or with it that branch which relates to alien ? This is the third question proposed, and to this an answer, or the materials for an answer, have already been furnished ; for had the negative position only rested upon want of instances where the rights of the Grown had been enforced, it might have been said that the general application of the English laws implied that of the portion in question ; but the acts of the power which alone would introduce this portion, and which alone introduced the English laws generally show that it was introduced not in all its branches but with the exception of this portion at the least ; this must be admitted unless it can be maintained that there is no possibility of introducing the English laws at all, without introducing every part of them which clearly cannot be asserted ; for not with standing the extent to which the laws have been introduced it is allowed on all hands that many parts of them are still unknown in our Indian dominions.

15. In the well-known case of Naoroji Beramji v. Rogers [1867] 4 B.H.C. (O.C.) 1, already referred to Sir Michael Westropp said (p. 11):

Until the recent legislation of the year 1865, the law uniformly applied to Parsis and their property in the island of Bombay by the Supreme Court, and since it was closed by the High Court at its Original jurisdiction side has been, as correctly stated in the clear and able Report of the Parsi Law Commission, (of which Sir Joseph Arnould and Mr. Justice Newton were members), the English Law, except so far as it is varied by Act 9 of 1837, and also since the decision of the Privy Council in 1856 in Ardaseer Cursetjee v. Perozeboye [1856] 6 M.I.A. 348. except as to matrimonial suits at the Ecclesiastial side of the Court and perhaps, I should add, except as to bigamy. Whether, then, we have regard to the plaintiffs, or to the defendant and his wife, the law applicable to this case was English Law.

16. Next, in Navroji Manockji Wadia v. Perozbai [1898] 23 Bom. 80. Sir Charles Farran said (p. 98):

It has not been contended before us that Parsis in the island of Bombay are not subject, to English Law generally. There are certain legislative and other well-defined exceptions to the rule, but such exceptions do not include the law relating to Wills, so far as I am aware, the ordinary rules for their construction. The judgment in Naoroji v. Rogers [1867] 4 B.H.C. (O.C.) 1 has set at rest any doubts which ever existed as to the law by which the Parsis are governed. I have, therefore, considered the question before us in the light of the English Law being applicable to it. That law is now embodied in the Succession Act, but is virtually left unaltered by its codification.

17. So, too, in Payne and Co. v. Pirojshah , Mr. Justice Davar, who was himself a Parsi, said (p. 929):

I am afraid it is too late in the day now to raise the question as to whether the Common Law of England does or does not apply to the Parsis who inhabit the town and island of Bombay. In Naoroji Beramji v. Rogers [1867] 4 B.H.C. (O.C.) 1, Westropp, J., held that it did and that case has been followed by a series of decisions of this Court holding that except where there is special legislation affecting the community, the Common Law of England applied to the Parsis residing in the Presidency Town of Bombay.

18. So, too, in Waghela Rajsanji v. Shekh Masludin [1887] 11 Bom. 551, Lord Hobhouse, in delivering the judgment of their Lordships of the Privy Council, said (p. 561):

In point of fact, the matter must be decided by equity and good conscience, generally interpreted to mean the rule of English law if found applicable in Indian society and circumstances.

19. The point there was whether a guardian had power to impose a personal liability on his ward. I may also refer again to the case in Calcutta Satish Chandra Chakravarti v. Ram Doyal De A.I.R. 1921 Cal. 1.

20. It was, accordingly, strenuously contended before us for the defendant that the Parsis in Bombay are governed by the law of England, and that we should apply to them the English law of slander simpliciter. On the other hand, it was Contended by the plaintiff that we were not bound by English law but could decide the matter as we thought fit, and that we should, accordingly, adopt the same practice as in the mofussil where suits for slander have been held to lie without proof of special damage. For that purpose Kashiram Krishna v. Bhadu Bapuji [1870] 7 B.H.C. (A.C) 17 ; Parvathi v. Mannar [1884] 8 Mad. 175 ; Ibin Hosein v. Haidar [1885] 12 Cal. 109 ; Trailokya Nath Ghose v. Chundra Nath Butt [1885] 12 Cal. 424 and Sukkan Teli v. Bipad Teli [1906] 34 Cal. 48 were cited. But these were all cases depending not on the Charter of 1823 which governed proceedings in the King’s Court, but on Regulation IV of 1827, Clause 26 (or the corresponding Regulation in other provinces), which governed proceedings in the Courts of the East India Company. Further, counsel for the plaintiff was not prepared to say that we should abrogate the English rule about special damage altogether, but only in the case of the slander of women. In this respect a reference was made to Article 25 of the Limitation Act which provides that in suits for compensation for slander, the period of limitation is one year from the date
when the words are spoken or if the words are not actionable in themselves, when the special damage complained of results.

21. The defendant seems to me right in saying that this article contemplates that the English rule as to special damage applies to India. On the other hand, the section does not say which are the cases in which special damage must be proved, and which not, and, accordingly, the precise point before us is left open.

22. But we feel great difficulty in following the above course suggested by counsel for the plaintiff. Our duty is merely to interpret the law. It is for the Legislature to alter it if necessary. Accordingly, we think it safer in this case to assume for the sake of argument that generally speaking, the parties before us are governed by the law of England, as there are no statutory exceptions in point in this particular case. But we hold that this must be subject to the qualification I have already mentioned viz., that English law is to apply as nearly as the circumstances of the place, and of the inhabitants, shall admit. I need not labour the necessity for this qualification. Other cases illusirate that the rule in Shelley’s case : Mithabai v. Limji Nowroji Banaji [1881] 5 Bom. 506 the common law rule as to survivorship : Webb v. Lester [1865] 2 B.H. C. 52 ; the old ecclesiastical jurisdiction in matrimonial matters: Ardaseer-Cursetjee v. Perozeboye [1856] 6 M.A.I. 348 ; the operation of a decree against one of two joint debtors : Moot Chand v. Alwar Chetty [1915] 39 Mad. 548 ; the law of champerty and maintenance : Ram Coomar Coondoo v. Chunder Canto Mookerjee [1876] 2 Cal. 233 ; disentailing deeds : Naoroji Beramji v. Rogers [1867] 4 B.H.C. (O.C.) 1 ; and estate tail : Dadabhoy Framjee v. Rowasji Dorabji A.I.R. 1923 Bom. 177 will not be introduced into India, although in Bai Maneckbai v. Bai Merbai [1881] 6 Bom. 363 ; it was held by Mr. Justice West that Section 7 of the Statute of Frauds was applicable.

23. What, then, is the law of England on the subject, and how do the circumstances vary in India as compared with England ? Now, English Law, in the first place, draws a clear distinction between slander or spoken words on the one hand, and libel or written words on the other hand. The former with certain limited exceptions are not actionable without proof of special damage. The latter are. Consequently, the present words, if written would have been actionable in English law without proof of special damage. But not so if merely spoken unless coming within one of the recognized exceptipns. So too generally speaking, criminal prosecution does not lie in England for slander but only for libel. See Archbold’s Criminal Pleading, 26th Ed., p. 1245). In this respect the laws of the two countries differ, for, under Section 499 of the I.P.C. a criminal prosecution will lie in India for defamation whether oral or written. Consequently, the conviction which was obtained against the defendant in the present case, could not have been obtained in England.

24. Turning next to the limited exceptions proof of special damage is not needed in the following cases as thus enumerated in Pollock on Torts, 2nd Edn., p. 216, viz:

(a) Where the words impute a criminal offence (b) where they impute having a contagious disease which would cause the person having it to be excluded from society ; and (c) where they convey a charge of unfitness, dishonesty, or incompetence in an office, profession or trade in short, where they mainifestly tend to prejudice a’ man in his calling.

25. Exception (a) is, I think too broadly stated both in this and in the 11th Edition at p. 239. It should be a criminal offence punishable with” imprisonment, and not merely with fine : see Hellwig v. Mitchell [1916] 1 K.B. 609. But it is clear that up to the passing of the Slander of Women Act, 1891, accusations of unchastity against a female were not within the above exceptions. Consequently, special damage had to be proved. The 1891 Act has altered the English Law in that respect. But it does not apply to India, and, therefore, we have to consider the law irrespective of that Act.

26. Now, no doubt, the former English Law on the question of the slander of women came in for much criticism. It was even described as being “barbarous” by Lord Brougham in Lynch v. Knight [1861] 9 H.L.C. 577, and ” very cruel ” by Chief Justice Cockburn in Roberts v. Roberts [1864] 33 L.J.Q.B. 249. But apart from this particular slander there was no doubt sound ground for drawing a distinction between slander and libel. The written word is usually an act of more deliberation than the spoken word. It remains in a permanent form, and one which may be widespread, e.g., by a newspaper. It is, therefore, usually the more serious of the two. Morever, people, when quarrelling, may, in the heat of the moment, make defamatory remarks about their opponents. And, if all such remarks could invariably form the subject of a civil-suit, the Courts would be swamped with trivial litigation. How often in India in criminal cases one reads the evidence. “He then began to abuse me by my female relations.”

27. And, unfortunately, such abuse is not confined to India. Consequently, even at the present day the English Judges are-averse to altering the law in this respect. This is exemplified in Dauncey v. Hollo way [1901] 2 K.B. 441. There the Master of the Rolls (better known as Lord Justice A.L. Smith) says (p. 447):

I feel that if we were to accede to the argument which has been pressed strongly upon us on behalf of the plaintiff we should be relaxing the very salutary rule laid down in olden times restricting actions of slander, where no special damage is proved, to a very limited number of cases, and we should be opening the door to many actions of this kind. I am not myself, prepared to do that. It is important to consider, not only what are the words complained of, but also the circumstances under which they were uttered.

28. Then Lord Justice Vaughan Williams said (p. 448):

When our ancestors years ago drew the distinction between libel and slander they exercised that kind of wise discretion which they always-exercised over the whole field of the common law. It would, to my mind, be very dangerous for us now a days to relax in any way the rule of law which confines actions for spoken words, in the absence of proof of special damages, to a very limited number of cases.

29. It was suggested to us in plaintiff’s argument that the above distinction between libel and slander is really duo to the jurisdiction, which the ecclesiastical Courts possessed, of inflicting penance on a possessor of an unruly tongue for the good of his soul. That the Ecclesiastical Courts had some such jurisdiction would appear from Odgers on Libel, 5th Ed., at p. 70. But I do not propose to pursue the point. Personally, I prefer the orgin of common sense which that distinguished common law lawyer Lord Justice A.L. Smith referred to in Dauncey v. Holloway [1901] 2 K.B. 441. Further, any such remedy in the ecclesiastical Courts would clearly be inappropriate in the case of Parsis. I am satisfied that the ecclesiastical jurisdiction of the High Court, under Clause 42 of the Charter of 1823, did not extend to inflicting penance on Parsis for the good of their souls, any more than it did to enforcing their conjugal rights. See Ardaseer Cursetjee v. Perozeboye [1856] 6 M.A.I. 348.

30. Nor, on the other hand, am I impressed by the argument of the defendant that as oral defamation is a criminal offence by the law of India, though not generally by the Law of England and as the defendant has been punished for this offence, ho should not be subjected to a civil suit as well. Ooma Churn v. Grish Chander Banerjee (27 to 29) [1875] 25 W.R. 22, was cited in support of this proposition, but it only states that the Court is not obliged in such a case to give substantial damages if no actual damages are shown. If the decision goes further than this, then with respect I am unable to follow it. I see no reason why a slanderer of women should not be made liable both civilly and criminally, just, as, say, the driver of a motor-car who runs over a woman by his rashness and negligence.

31. But I now come to a further point which, though not taken in the Court below, nor originally in the argument before us, yet nevertheless appears to us to be one of great importance. Accordingly, we call for further argument on it. It arises thus. The words complained of clearly imputed that the relative Jamshodji above mentioned committed adultery with the plaintiff. Now adultery is not a crime in England.

32. Consequently, in England an accusation of adultery would not be within exception (a) above mentioned as imputing a criminal offence, see Jones v. Jones [1016] 1. K.B. 351. But in India adultery with a married woman is a crime on the part of the man, and can be punished with imprisonment extending up to five years and also with fine (see Section 497, Indian Penal Code). Therefore, if the man Jamshedji had been the plaintiff here’ we should have had to modify the English Law in his case, and hold that in India, as opposed to England, the above words were actionable per se without proof of special damage, as they imputed the commission of a criminal offence punish” able with imprisonment.

33. What, then, about the married woman ? She is protected from conviction arid imprisonment under Sections 108 and 109 as an abettor because Section 497 provides that in such a case she is not to be Punshable as an abettor. But nevertheless, the words complained of impute that she was a party to a criminal offence. Accordingly, this raises the question whether the circumstance, that the alleged slander imputed to the plaintiff that she was a party to the crime of adultery under Section 497 of the Indian Penal Code, would in India, as opposed to England’ make the accusation actionable per se without proof of special damage.

34. Now, in answering that question we can get little help from English cases. On the contrary, some of the older cases on slander of women point out that un-chastity is not a criminal offence see for instance, Byron v. Elmes [1699-1712] 2 Salk 693. And, as in general an active party to a criminal offence must be punishable as an abettor, or as it is called in England an accessory, it is not easy to find cases at all analogous to those we have here, viz., where the accessory is not punishable. One such instance may be where a crime is committed jointly by a husband and wife, but where under the old law the wife escapes punishment owing to the presumption of coercion by the husband (see now Criminal Justice Act, 1925, Section 47). Another instance may be that of an infant of too tender years to be convicted. (Compare Odgers on Libel. 5th Ed., pp. 577 and 50). The point is touched on at p. 50 of Odgers on Libel and it is there stated that in the United States the rule now prevails that
if the words would convey an imputation of felony to the minds of ordinary hearers unversed in legal technicalities, an action lies, e.g., where an infant is accused of a crime, and nothing is said about special malice.

35. But no clear authority has been cited to us as to whether in a corresponding case an English Judge would hold that special damage must nevertheless be proved. Nor do we get any assistance in this respect from the Indian authorities. In Surajmal v. Horniman [1917] 20 Bom. L.R. 185, the English Law as to fair comment was applied (see p.275) but that was a case of libel contained in a newspaper article. We have not been referred to any case on the Original Side of this Court dealing with slander, and though it was decided in Bhooni Money Dossee v. Natobar Bisiwas [1901] 28 Cal. 452 by Mr. Justice Harington sitting on the Original Side that proof of special damage was essential, the point I am at present dealing with was never raised.

36. We are, therefore, not bound by any express ruling on this point either in England or in India. And we must apply the English Law only “as far as the circumstances will admit” under Clause 5 and “according to justice and right” under Clause 28 of the Charter. Here I should like to quote what Lord Justice Bowen says in Ratcliffe v. Evans [1892] 2 K.B.524 (p. 531):

From libels and slanders actionable per se, we pass to the case of slanders not actionable per se, where actual damage done is the very gist of the action. Many old authorities may be cited for the proposition that in such a case the actual loss must be proved specially and with certainty : Law v. Harwood [1629] Cro. Cas. 140. Many such instances are collected in the judgments in Iveson v. Moore [1694-1732] 1 Ld. Raym. 486, where, although there was a difference as to whether the general rule had been fulfilled in that particular kind of action on the case, no doubt was thrown on the principle itself. As was there said in that language of old pleaders which has seen its day, which connoted more accuracy of legal thought than is produced by modern statements of claim ‘damages in the ‘per quod’, where the ‘per quod’ is the gist of the action, should be shown certainly and specially. But such a doctrine as this was always subject to the qualification of good sense and of justice.

37. What, then, is the qualification of good sense and of justice which we should apply in the present case ? Should we apply the old English rule literally, and say that though the man Jamshedji can sue, the married women cannot, as she is only charged with being a party to a criminal offence and not with being an actual criminal ? Or, shall we hold that the spirit of the rule when applied to India demands that both the man and the married woman can sue without proof of special damage ? In my judgment the latter is the true view. I cannot believe that the English Judges who held the old rule to be barbarous in Lynch v. Knight [1861] 9 H.L.C. 577, or very cruel in Roberts v. Roberts [1864] 33 L.J.Q.B. 249, although adultery was not a crime, would nevertheless apply it to cases where adultery was a crime. On the contrary, the passing of the Slander of Women Act, 1891, shows that so far from the rule being extended, it was one to be entirely swept away in England so far as concerns the slander of women. Accordingly, if this case had been heard by the Supreme Court of Bombay immediately before the Letters Patent of 1862, I think the probabilities are that this suit would have been held to be maintainable without proof of special damage. In this connexion it will be borne in mind that whereas the Indian Penal Code was passed in 1860, the original Letters Patent establishing the High Court were not issued until 1862. Consequently, Section 497, Indian Penal Code, was in force prior to the foundation of the High Court.

38. In the result, therefore, I would answer the above question in the affirmative and hold that this present suit is maintain-able without proof of special damage. It follows, therefore, that in my judgment the appeal must be allowed.

39. As regards the quantum of damages, I recognize that the defendant has already been punished in a criminal Court and that, though the slander was a serious and deliberate one, he made a full apology, and also offered pecuniary compensation. On the other hand, I regard the plaintiff’s claim for Rs. 10,000 as an inflated one under all the circumstances of the case.

40. Further, she has succeeded on a point never expressly taken at the trial or before us, such are the chances of litigation. In my judgment, then, the fair sum to award her as damages would be Rs. 1,000, and I would, accordingly, pass a decree’ in favour of the plaintiff for that amount. As regards costs, I think that, in view of the above inflated claim and other circumstances, it would be fair to show some consideration to the defendant in the matter of costs. I would, accordingly, decree that the defendant is to pay the plaintiff’s costs of this suit throughout but not exceeding the sum of Rs. 1,000.

41. I will only add in conclusion that our decision does not affect those cases of the slander of women, where the crime of adultery with a married woman is not involved; and that it may well be a matter for consideration by the Indian Legislature as to whether an Act on the lines of the Slander of Women Act, 1891, should not be passed for the better protection of women and girls in India against imputations on their chastity. The provisions in that Act that the plaintiff is not to recover more costs than damages unless the Judge shall certify that there was reasonable ground for bringing the action will be some safeguard against frivolous or unnecessary suits.

Kemp, J.

42. (After setting out facts as given in the judgment of Marten, C.J., “his Lordship continued.) The only-material question in the suit, therefore, is, apart from the ” quantum ” of damages to which the plaintiff would be entitled if she succeeds, whether the plaintiff’s suit for slander can be maintained without laying special damage.

43. The learned trial Judge, after an examination of the Charter of the Supreme Court and the jurisdiction inherited from it by the High Court, came to the conclusion that, except as between Mahomedans and Gentoos, the law to be administered within the ordinary original civil jurisdiction of this Court was the English common law except in so far as the Indian Legislature had effected any change. He further concluded that in the particular matter before him there had been no Indian legislation. Then he decided on a consideration of the English Law applicable to the parties in this case and the decision in Bhooni Money Dossee v. Natobar Biswas [1901] 28 Cal. 452 that the suit was not maintainable without proof of special damage. Now, slander in England was originally taken cognizance of by the Ecclesiastical Courts and the civil Courts would only entertain an action for slander where special damage was proved, except in three cases, when the action could be maintained without laying special damages:

(1) Where a criminal offence was imputed to the plaintiff ;

(2) where a contagious or infectious disorder, tending to exclude the plaintiff from society, was imputed to him ;

(3) where any injurious imputation was made, affecting the plaintiff in his office, profession, trade or business.

44. Until 1891, when the Slander of Woman Act, 1891, (54 & 55 Vic, c. 51), was enacted, it was obligatory on a woman against whom an imputation of unchastity or adultery was made to prove special damage. That Act, however, did away with the necessity of this and added one more exception in which an action would lie without laying special damage. In these excepted cases the imputation cast on the plaintiff was on the face of it so injurious that the Court would presume that the plaintiff’s reputation had been thereby impaired. Spoken words which afford a cause of action without proof of special damage are said to be actionable per se. I may here observe that mere loss of society, i. e., consortium vicinorum, in itself is not special damage without proof of loss, of the material hospitality of one’s neighbours. The special damage must be the loss of some material temporal advantage,, pecuniary or capable of being estimated in money, which ordinarily flows from the defendant’s act. In Dauncey v. Holloway [1901] 2 K.B. 441, A.L. Smith, M.R., observed that the common law rule was one founded on very salutary grounds.

45. The respondent contends that the law applicable to Parsis in a case like the present is the English common law and the statute law in England up to the date of the Charter of George I, except where there are special statutes relating to Parsis. The learned Advocate-General, who appears for the defendant, and who belongs to the same community as the parties to this appeal, frankly states that the Parsis have no law of their own save and so far as it is to be found in statutes relating to them.

46. The Supreme Court for Bombay established by Letters Patent 4 George IV., dated December 8, 1823, invested the Chief Justice and Puisne Judges of the Court with a jurisdiction similar to the jurisdiction of the King’s Bench in England as far as circumstances will admit and an equitable jurisdiction in its ordinary civil jurisdiction similar to that of the Court of Chancery and conferred upon them full powers and authority to give judgment and sentence according to ” justice and right.” So far as Mahomedans and Gentoos were concerned, the Charter provided for the application to them of their special laws and usages in cases of inheritance and succession and in all matters of contract and dealing between party and party. The Act 24 & 25 Vic. c. 104 established High Courts of Judicature in India, and the Letters Patent, dated June 26, 1862, issued under the authority of that Act, constituted the High Court at Bombay and provided that the law or equity to be administered, by it in its ordinary original civil jurisdiction was that which would have been applied by the Supreme Court. The ecclesiastical jurisdiction except in regard ‘ to testamentary and intestate jurisdiction was abolished, and the matrimonial jurisdiction confined to British subjects professing the Christian religion. The amended Letters Patent, dated December 28, 1865, continued the High Court at Bombay with additional powers and by Clause 19 declared that the law or equity to be applied in the exercise of the Court’s ordinary original civil jurisdiction was to be the law and equity which would have been applied if the Letters Patent had not issued.

47. In The Adv.-Gen. of Bengal v. Ranee Surnomoye Dossee [1863] 9 M.I.A. 387, the Privy Council referring to the Charter 13, George I, say (p. 398):

There can be no doubt that it was intended that the English Law should, be administered as nearly as the circumstances of the place, and of the inhabitants, should admit. The words ‘give judgment according to justice and right’ in suits and pleas between party and party, could have no either reasonable meaning than justice and right, according to the laws of England, as far as they regulated private rights between party and party. Such general words could not possibly refer to any law, such as the Mortmain Act, or the Alien laws, which had reference merely to some views of public policy, supposed to be applicable to England.

48. See also Satish Chandra Chahravarti v. Ram Doyal De A.I.R. 1921 Cal. 1.

49. The law, therefore, to be applied to the parties to this suit is the English common law so far as the circumstances of the place and of the inhabitants admit and should for any reason such law be inapplicable the Court must decide the [case according to “justice and right.”

50. It remains to consider how far the English common law of slander can be applied to this case. Here I may note in passing that we are not dealing with a case of parties who are residents outside the town and island of Bombay. Their position is different, for they are governed by Regulation 4 of 1827, Section 26, which requires the application of justice, equity and good conscience to their cases. Moreover, whilst the ecclesiastical jurisdiction of the High Court, except its testamentary and intestate jurisdiction and in matrimonial cases, has been swept away by the amended Letters Patent, if we were to adopt the principles on which the Ecclesiastical Courts in England could be moved in cases of slander of women, the only relief which could be afforded would be such as the ecclesiastical Courts in England afforded, and to ‘”admonish a man for the good of his soul” would neither be a legal verdict nor would it afford any satisfaction to the injured plaintiff.

51. Since the decision in Naoroji Beramji v. Sogers [1867] 4 B.H.C. (O.C.) 1, this Court has consistently adopted the view that the English common law is to be applied to Parsis inhabiting the town and island of Bombay, where circumstances permit, provided it does not owe its origin to conditions peculiar to England, and also that there are no Legislative enactments dealing particularly with Parsis to the contrary : Payne & Co. v. Pirojshah and Naoroji Manockji Wadia v. Perozbai [1898] 23 Bom. 80 may be cited in this connexion. Where this view has been so consistently and for so long adopted, it would be injudicious now to attempt to upset it on the ground, as the appellant’s learned Counsel contends, that it is founded on obiter dicta of the learned Judges in Naoroji Beramji v. Rogers [1867] 4 B.H.C. (O.C.) 1.

52. Appellant’s counsel points out that the law in England prior to the Slander of Women Act, 1891, was, so far as imputations of unchastity against women were concerned, an unjust law, and had received the disapproval of eminent Judges there. He urges that the enactment of 54 & 55 Vic, c. 51 was an acknowledgment of this and, therefore, in doing “justice and right” we should apply the principle laid down in that statute. But the answer to this appears to me to be that if we adopt this suggestion, we should equally adopt in other cases the statutory law of England passed to abrogate such hardships as arose from the application of the common law. In other words, we should apply here not only the English Law before 1727, but also a large part of the English statutory law since that date. If Judges were to do this they would be usurping the functions of the Indian legislature. Their business is to expound and not to create the law. “Justice and right” cannot depend on what any one Judge may think the law should be ; for then the law would vary according to the opinion of each individual Judge. It may, I think, be taken that the English law to be applied in the Presidency towns was regarded as “just and right.” It remains to see whether it is applicable to local circumstances and Parsi usages and, if not, to apply the -principle of “justice and right” enjoined by the Charter.

53. Now, the reason why it wag necessary, save in the excepted eases, to lay special damages in slander actions in England was to prevent the Court being flooded with trifling cases of abuse and insult. Also slander without special damages was dealt with by the ecclesiastical Courts only. Adultery is not, except where it amounts to reason, a crime in England, and to impute adultery to a married woman was not to impute to her a crime which would dispense with the necessity of laying special damage. In India, Section 497 of the Indian Penal Code specifically makes adultery a crime, but says, at the same time, that the wife is not punishable as an abettor. We therefore, have this manifest absurdity that, if we apply the English common law on the point, a Parsi residing in the town and island of Bombay against whom a false imputation of adultery is levied has a remedy by a suit for damages, whilst a married Parsi woman against whom the same false imputation is made has none. I think that a law by the application of which such an unjust distinction arises cannot be said in this respect to be applicable to circumstances arising in India and the case of a married woman to whom unchastity is falsely imputed must be dealt with according to the justice and right enjoined by the Charter It can only be answered in one way and that is in favour of the appellant.

54. Further, I think it would be wrong to regard an imputation against a married woman in India of unchastity from the English standpoint before 1891. English women and Parsi women in India are in this respect placed in the same position as Indian women. The law which in England existed in 1727 on the conditions of English society cannot with safety be applied to Indian women whose “status” has developed under totally different conditions. In India, adultery was always visited with punishment. Manu has prescribed the penalty of death for it and the 24th Sutra pronounced on the occasion of the calumnies against Aisha deals with the same subject and prescribes a punishment for the slander. The relation also in which the wife stands in India to her husband induced the authors of the Code to include adultery in the list of offences for which a complaint might be made by the husband against the traducer. At the same time, they exempted from punishment the wife whose lot they regarded at the time when the Code was drafted as already sufficiently hard. That this consideration for the wife should place her at a disadvantage in respect of the relief obtainable through a civil Court for an aspersion on her chastity was a result which was never contemplated.

55. No doubt, virtue in a woman is as much prized in India as it is in England.; but whilst in England the punishment of the paramour, apart from the liability for damages in a matrimonial petition, was left to the aggrieved husband, here the law makes the adulterer guilty of an offence under the Indian Penal Code. The absurdity and injustice of the distinction before referred to in the latter case is accentuated when we recognize the fact, which I think we must, that a slander on her chastity is a greater injury to a woman. In this respect the local conditions amongst Indians in general, which led to the passing of Section 497 of the Indian Penal Code, were adopted as the conditions for all communities in British India and the particular “status” of Parsi and English women was disregarded when that section was enacted. The usages of the Parsi community provide no fabric on which the necessity of proving special damage in a case like the one before us can be grafted. If I am correct in my conclusions, the law in this city and. in the mofussil on this point will be assimilated. “Justice, equity and good conscience” mean much the same thing as “justice and right” and we shall not be faced with the curious anomaly that the law on this point differs according as the parties reside within the town and island of Bombay or outside it.

56. I appreciate the point taken by the Chief Justice at the further hearing of this appeal. I think that a crime may be imputed to one for which he cannot in fact be punished. I see no reason why, for example, an infant doli iacapax against whom a slanderous imputation of an offence may be believed by those who hear it should not be able to maintain an action against the slanderer without laying special damage.

57. This was a deliberate case of slaendr persisted in throughout the crimenal ‘proceedings and only retracted under the threat of a civil suit, in my opinion the apology came too late; nor was the apology and offer to pay Rs. 1,000 at the trial sufficient to vindicate the plaintiff’s honour and at the same time reimburse her for the expenses of the litigation she had incurred up to that date. Moreover, the slander was a particularly bad one as it imputed unchastity to the plaintiff with regard to a relation of her husband’s who was staying in the same house-a circumstance which would give additional colour to the slander and cause additional pain to plaintiff and her husband. This was not a case of mere vituperation or abuse where the imputation was not intended and where it would not be believed by those who heard it. Such cases are not covered by the present decision.

58. The plaintiff’s honour has now been completely vindicated and it only remains to assess the damages to which she is eutitled. In this respect I agree with e order proposed by the Chief Justice.

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