Alleging Impotence in Divorce Case Not Defamatory: Bombay High Court

The Bombay High Court has held that a wife calling her husband impotent during divorce proceedings would not amount to defamation.

A single-judge bench of Justice S.M. Modak 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".

It added that such statements fall under the ninth exception to Section 499 of the IPC.

Court rendered the ruling while dealing with a plea filed by the wife and her family members, seeking to quash the sessions court order that had remanded their matrimonial matter back to the Magistrate, Kurla, and directed it to reconsider the complaint filed by the husband.

The husband had filed a defamation complaint against his estranged wife and her family members, who had alleged in the divorce proceedings that he was impotent.

Earlier, a Magistrate Court had dismissed the defamation complaint lodged by the husband, noting that the alleged defamatory statements against him were made by the wife during the course of matrimonial proceedings like divorce.

“Admittedly, impotency is one of the grounds of divorce. There is nothing on record to show that at any point of time the accused persons have given criminal intimidation to the complainant,” the Magistrate had added.

The Sessions Court, however, found that the Magistrate had not recorded whether the complainant was given an opportunity to examine witnesses, and that the enquiry was not conducted.

Before the High Court, the petitioners argued that the revisional court was wrong in remanding the matter without any specific grievance having been raised in the revision application regarding the denial of the opportunity to examine witnesses.

Taking note of this, the high court said,“Revisional Court, while remanding the matter, ought to have made some prima facie allegations about the said finding. Why I say some prima facie observations because he has not allowed the revision. He could have issued the process, then he was supposed to go in detail about the said observation, but some prima facie observations are required, or at least certain directions to the learned Magistrate to go into that reasoning are required. I find they are missing".

Court added that in a Hindu Marriage Petition, the allegations of impotency are very much relevant.

“That is to say, when the wife alleges that due to impotency it has caused mental cruelty to her, 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 during 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 high court added.

It was the wife’s case that the husband was incapable of intercourse. On the other hand, it was the husband’s case that the allegation had damaged his reputation. His lawyer even pointed out to the court a certificate showing that a son was born from the said marriage.

However, the High Court said, “In this petition, we are not deciding whether the allegation of impotency is true or false, and whether the husband is capable of intercourse or not. We have only to decide whether these imputations are made without good faith and not for protecting the interest of the maker".

Accordingly, it quashed the sessions court’s order and allowed the writ petition.

“The Writ Petition is allowed. The order dated 3rd April 2024 passed by the Court of the Additional Sessions Judge in Criminal Revision Application No. 446/2023 is set aside. The complaint filed for offences under Sections 500, 506, read with Section 34 of IPC stands dismissed,” the court said.

Case Title: X. v. Y

Date of Judgment: 17 July 2025

Bench: Justice S.M. Modak