PLJ 1999 Karachi 320
Present: sabihuddin ahmed, J. Mst. ABIDA AMIN-PMntiff
Versus
MUHAMMAD AMIN and another-Defendants
Suit No. 650 of 1986, decided on
10.8.1998.
Defamation--
—Damages-Defendant, in divorce deed
consciously chose to allege that plaintiff (wife) was suffering from
gynaecological disease prior to solemnization of marriage, that she had urinary
tract infection of serious nature; and that she used to return home very late and
always pretended that she had gone to see her mother or friends—Allegation to the effect
that
plaintiff suffered from gynaecological disease and had been so suffering prior to
her marriage was per se defamatory-Further, statement in divorce
deed that plaintiff used to come home late and would pretend that she had gone to
visit her mother or some friend unquestionably showed that defendant was attempting to attribute
unchastity or immorality to plaintiff-Such statement was, thus, made and circulated maliciously-Imputations made in
divorce deed were calculated to
defame plaintiff-Imputations in question were not made by defendant in his written statement but in
altogether different document Le. divorce deed which was required to be communicated
to concerned union council for being given legal effect and was, admittedly,
executed well before proceedings in
Court commenced, therefore, defendant could not claim privilege with regard to statement in question-Contents of divorce deed were defamatory of plaintiff and were
circulated without justification-Defendant
and co-defendant (doctor) in whose clinic (lady) remained under treatment; who issued certificate to defendant (husband) that plaintiff was suffering from such and such
decease thus, connived with each
other to defame plaintiff and were, thus, liable to pay damages-Court on
basis of evidence on record and principle of law relating to awarding of damages deemed it fair to award specified
amount against defendant (husband)
for imputations contained in divorce deed and further similar amount jointly and severally against both
defendants in respect of imputations made in medical certificate with
specified interest from date of decree till
payment was made.
Iff 323, 324 & 327] A, B & C
Mr. Nasir Maqsood, Advocate for
Plaintiff. Mr. S.A Ghaffar, Advocate for Defendants. Date of hearing:
17.2.1998.
judgment
This is a suit for recovery of Rs. 1,500,000
by way of damages for defamation.
The plaintiffs case, briefly, is that she is an educated-lady working as Assistant Director in Sindh Small
Industries Corporation. Her father had left her mother and with a great deal of
difficulty her mother brought her up
and educated her as her only child. She started working from a very young age and supporting her mother when
the latter fell sick. Coming from a
conservative Katchi Memon Family and being devoted to her mother who did not approve of her marrying
outside the community, she married the Defendant No. 1 on 4.7.1984. The
Defendant No. 1 had been married before, but his first wife had died few
years ago. The Defendant No. 1 used to insist that the plaintiff should give
all her earnings to his mother and did not
approve plaintiffs supporting or attending to her own mother who had fallen
seriously ill and was unable to support herself. She was subjected to a great deal of mental and
physical torture by the Defendant No.
1, his mother and his daughters from his first wife. Within three months
of her marriage she fell seriously ill and was admitted in Mowloo Jumma Hospital Gari Khata, where she
remained from 4.10.1984 to 19.10.1984.
Neither the Defendant No. 1 nor any of his family members visited her in
the hospital and when she was about to be discharged, a message was sent to her that she was no longer welcomed in the
Defendant No. 1's house and was
advised to go and stay with her mother. During her hospitalisation the plaintiff was informed that
she was suffering from Urinay Traction
infection and she might have contracted through her husband. The plaintiff also came to know from members of the
community that his first wife who
died due to kidney failure and also probably contracted the same disease
from the Defendant No. 1. It is further stated that despite several attempts to persuade him, the Defendant No. 1 was
not willing to take the plaintiff to
his own house and maintain her. After eleven months she filed the suit for maintenance before the competent
Family Court. The Defendant No. 1
filed a written statement wherein he, inter alia, contended that he had
divorced her in terms of the declaration of divorce dated 22.9.1985. The written statement and its enclosures including the
divorce deed has been placed on record as Exh. 6/8. It may be pertinent to
reproduce certain parts of this
declaration of divorce which read as under:- *
"5. That Mst. Abida was also
suffering from gynaecological disease prior to the solemnisation of the marriage as
she had urinary tract infection of serious nature, which she never told me but
the same came
to my knowledge afterwards when she was given medical treatment by our family
doctor on her bad health conditions.
6. That Mst. Abida was asked several
times to leave her job and live like a house wife and take care of children
and the house as per her promises and agreed terms but she always refused to do so
and her daily practice was to go to her job early in the morning and return home very late at
u.i6ui, say after 8 and 9 p.m. without any lawful and just reason,
when she was asked for that routine she always pretended that she had gone to see her
mother from her office and/or some of her friends."
Alongwith the written statement the Defendant No. 1 filed a certificate issued by the
Defendant No. 2 to the following effect: -
"It is certified that Mrs. Abida Ameen
was treated by me after her marriage for many times. She has Urinay Tract Infection
and some serious
Gynaecological diseases. Her U.T.I, is leading her to chronic Renal failure. She
had got many mental symptoms of Hallucination and Psychosis."
2.
The plaintiff has alleged that the allegations contained
in the declaration of divorce deed as well
as the certificate mentioned above are false and defamatory of the plaintiff. They
were made out only with an attempt to defame and humiliate the plaintiff within her
community and generally in the public eye.
3.
The Defendant No. 1 in his written statement admitted the
execution
of the declaration of divorce and the certificate issued by the Defendant No. 2. He nevertheless, pleaded
that the contents thereof were true and in
any case were not defamatory of the plaintiff. He emphatically denied any allegation of collusion with Defendant
No. 2 or malice on his part. The
Defendant No. 2 admitted the execution of the certificate and contended that he had been treating the plaintiff before and
after her marriage and the statements in the certificate are true.
4.
Certain issues were settled and the parties led evidence
in support
of their respective contentions. However, before commencement of arguments the issues
were recast to the following effect: -
(1)
Whether the allegations in the divorce deed made by the defendants of the
certificate issued by the Defendant No. 2 were mala fide and given wide
publicity to cause damage to the plaintiff?
(2)
Whether the certificate issued by the Defendant No. 2 in respect of the
ailment to the plaintiff are false?
(3)
Whether the defendants have acted in collusion?
(4)
What should the decree be?
5. Having gone through the record and heard the
arguments of the learned counsel my
issue-wis* findings are stated as follows:-
ISSUE NO. 1:
6. On this issue the factum of a written divorce
deed having been made and its
contents are not disputed. The only question for consideration are whether its contents are defamatory i.e. tend
to lower the reputation of the
plaintiff in the public eye whether the Defendant No. 1 is entitled to the protection of any defences available in such
proceedings. In Para. 10 of the written
statement the defendant has pleaded that he had always discharged his duties as a husband quite well and only when
his sincere efforts to bring the
plaintiff home (after her discharge from hospital) failed, he pronounced divorce
upon her in accordance with the norms and principle of Islam, having realised that they could not remain as
husband and wife within the limits of
God. It is Indeed correct that under the Muslim Law the husband can always divorce his wife by pronouncing Talaq
and no written document is necessary
fro doing so. Even if he chooses to divorce her through a written document he is not required to assign any reason
whatsoever. Moreover, if the primary reason, as contended in the written
statement as well as his evidence for terminating marital, ties, was the
stubborn attitude of the defendant in
refusing to come to the marital home and not her health condition, the Defendant No. 1 could have confined
himself to saying so. Nevertheless,
in the divorce deed the consciously chooses to allege that the plaintiff was "suffering from gynaecological
disease prior to solemnization of marriage
and she had urinary tract infection of serious nature". He further went
to say, in the same document, that she used to return home very late and always "pretended that she had gone to
see her mother or friends".
7. Mr. Nasir
Maqsood, learned counsel for the plaintiff has argued that an allegation to
the effect that a woman suffers from some gynaecological disease and has been so
suffering prior to her marriage is per se defamatory. Indeed the question
whether this statement amounts to libel or slander has to be viewed from the social
context in which it is made and in which the person said to have been defamed
resides. Indeed, in our society such imputations are to be treated very
seriously. Further, statement in the divorce deed to the effect that the
plaintiff used to come home late and would pretend that she had gone
to visit her mother or a friend unquestionably shows that the Defendant No. 1 was attempting to attribute
unchastity or immorality to the plaintiff.
As discussed above, there was absolutely no need to make aforesaid allegation in the divorce deed and the marriage could
be terminated without making such
imputations, therefore, it is impossible to resist the arguments that such statement was made and circulated maliciously. Even otherwise, in such matters the
law assumes malice and the burden is
on the defendant to show that the statement was true and was made in good faith. The Defendant No. 1 in his
evidence has neither bothered to
show that such statements were true nor attempted to explain why they were made in the divorce deed. On the
contrary, he has deposed that the
plaintiff did have pre-marital sex life but this did not matter to him. This makes his conduct all the more questionable
because if it did not really gatter,
as far as he was concerned, why he chose to put it down in writing thi circulate it knowing perfectly well that in
our social milieu such al)0\nients do lower the prestige of a
woman. He himself chose to file a copy incaj'
document before the Court trying the suit for maintenance. He must also communicated the same to the concerned Union
Council if he had intended to give legal effect to the divorce.
It is, therefore, quite clear that the imputations made in the divorce deed
were calculated to defame the plaintiff.
8.
Mr. S.A. Ghaffar, learned counsel for the defendants has
argued that
even if the contents of the divorce deed were defamatory, no cause of action could accrue to the plaintiff because
the document was a privilege document, have
only been filed in the Family Court alongwith written statement in the suit for maintenance filed by
the plaintiff. Learned counsel relied
upon a judgment
of the Madras
High Court in Sedimbi
Hanumantharow and others v. Nidumolu Seetharamayya (AIR (29) 1942 Madras 343) in this case it was held after
examining certain English judgments
that no action for life or slander lies against the parties for words "written" or "spoken" in the
course of any proceedings before a Court recognised by law, even though such words were written or spoken maliciously, without justification and from
personal ill-will and anger against the
person defamed.
9. However, I do not
think that this judgment is of much help to the defendant. In the first place
privilege extends to a statement, whether oral or in writing made
before a Court and not to other documents that may be enclosed alongwith
such documents. The imputations in question were not made by Defendant No.
1 in his written statement but in an altogether different document i.e. a divorce
deed, which is required to be communicated ito the concerned Union Council for being
given legal effect and was _j admittedly executed well before proceeding in Court
commenced. Secondly, °| in the judgment cited by Mr. S.A. Ghaffar himself, it
has been held that the :
question whether a statement is privileged or not, depends entirely on the i nature of the statement and the purpose for
which it is filed and if their |
documents are considered by a party as being essential for his defence they are covered by the doctrine of privilege.
10. Mr. Nasir Maqsood, learned counsel for the
plaintiff has argued that the
Defendant No. 1 being possessed of an absolute right to divorce under the Muslim Law was not required to assign
any reason either before the Court
or the concerned Union Council and the imputation made being entirely irrelevant were not protected by the
doctrine of privilege. The following
statement of law from Gatley on Libel and Slander (Seventh Edition, page 583), which read:-"The scope of
the defamatory matter must not exceed the exigency of the occasion. If a person goes into matters
wholly unconnected with, and
irrelevant to, the duty or interest that gave rise to the privilege, no
privilege will attach to his statement in so far as it refers to such matters. The fact that an occasion is
privileged" said Lord Lorebun in Adam v. Ward, does not
necessarily protect all that is said written
on that occasion. Anything that is not relevant and perti) to the discharge of the duty or exercise of the
right or safeguarding of the interest
which creates the privilege or, in the words
of Lord Atkinson, foreign and irrelevant subjects not pertinent to the discharge of the duly, or the protection
of the interest which forms the
basis of the privilege will not be protected.'"
In view of the above, I am clearly of
the opinion that the contents of the divorce deed were defamatory of the plaintiff
and were circulated without justification and the Defendant No. 1 if not entitled to
any privilege in respect thereof.
ISSUE NO. 2:
11.
As regards the certificate issued by the Defendant No. 2
while the
plaintiff has admitted that she suffered from urinary tract infection (which according to
her she contracted from the Defendant No. 1) she has emphatically denied the remaining part of
the statement in the certificate reproduced
in para. 2 above. The Defendant No. 1 on the other hand has categorically denied that the plaintiff suffers
from such infection. Be that as it
may the Defendant No. 2 has taken up the defendant that the contents of the certificate were true and based upon
investigation conducted in the due performance of professional duties. The
certificate refers to three ailments, namely,
(1) Urinary tract infection); (ii) some serious gynaecological disease and
(iii) mental symptoms of Hallucination and Phychosis.
12.
As far as the infection is concerned there does not
appear to be in dispute as between the plaintiff and Defendant No. 2 that the former
was suffering from such infection. The plaintiff has asserted that she
contracted this infection from the Defendant No.
1 and that she consulted the Defendant No. 2 for the first time only
after her marriage with Defendant No. 1. On
the other hand the Defendant No. 2 has stated in evidence that he had also examined the plaintiff prior to her
marriage and she was suffering from such infection even at that time. In his
evidence he has explained that such
infection can be contracted by one spouse from another, but can also erupt in unmarried females. As such even if the
evidence of the Defendant No. 2 is
believed all that it proves is that the plaintiffs assertions to the effect that she acquired this infection from the
Defendant No. 1 stands negatived. This
however, is not an issue before me and no finding is necessary. Even
otherwise I am tentatively of the view that a certificate by a doctor to the effect that his patient is suffering from such infection does not appear to be defamatory.
otherwise I am tentatively of the view that a certificate by a doctor to the effect that his patient is suffering from such infection does not appear to be defamatory.
13.
The important aspect of the controversy however, relates
to the two other
ailments mentioned in
the certificate i.e.
some serious gynaecological
disease and mental symptoms of Hallucination and Psychosis.
'The plaintiff has categorically
asserted that such statements made in the certificate are false. This has been denied
by the Defendant No. 2. Evidently, th-e imputation as to gynaecological diseases
is per se defamatory as discused above. Similar is the position with respect
to an allegation of mental incapacity. Therefore, burden to prove that they were
true was on the
326 Kar. Mst. abida amin v. muhammad amin PLJ
(Sabihuddin Ahmed, J.)
Defendant No. 2 i.e. the
Doctor. The Defendant No. 2 has not produced the records maintained at his clinic
relating to investigation conducted by him in respect of his patients and has
stated that the same got destroyed in riots. Nevertheless, even in his
affidavit-in-evidence and deposition in cross-examination while he has explained
the genesis of Urinary Tracts Infection he has not spoken a word about the
gynaecological disease that the plaintiff was allegedly suffering from or her mental
condition. Moreover, the statement to the effect that a patient is suffering from
"some serious gynaecological disease" does not appear to convey the impression
of strictly professional opinion. Normally, a Doctor is expected to identify
the nature of such disease or
that at least convey his impression. If he was unable to identify the disease, he could require her to
undergo further tests or seek another
professional opinion. Not a word has been stated in evidence to this effect. In the circumstances, I am inclined to hold
that truth of the statement, in so far as the two other ailments are
concerned, has not been established.
ISSUE NO. 3:
14. Mr. Nasir Maqsoou, learned counsel for the
plaintiff argued that the Defendant
No. 2 issued the certificate only to oblige the Defendant No. 1 in defaming the plaintiff and not in the bona
fide performance his professional
duties. In this context, he contended that irrespective of the contents of the certificate the Defendant No. 2
owed a professional obligation to
maintain secrecy and not to divulge information which came to his knowledge
in the course
of professional duties without
the express permission of his
patient. He referred to various passages of Principles of Forensic Medicine by Apurba Nandy, wherein it has
been clearly laid down that a doctor
not divulge secrets of his patient learnt by him in connection with his professional duties and the secret
information about one spouse cannot
be divulge to another without the consent of the former. Mr. Nasir Maqsood has further referred to the following
passage from Legal Medicine
(Third Edition, p. 312), published by the American Society for Legal Medicine:
(Third Edition, p. 312), published by the American Society for Legal Medicine:
"A patient's right to privacy and
confidentiality is one of the highest priorities in our legal system. Statutes
and Court decisions proclaim the duly to provide, maintain and enforce a
patient's right to privacy and confidentiality and also perils of failing to do so.
The Supreme Court has recognised it as constitutional right. No longer is
privacy and
confidentiality merely a moral, ethical, professional obligation; it is a legal
duly."
15. In any event, it is not necessary to go into the
question whether the Defendant No. 2
committed a breach of ethics or duty actionable at law. It might suffice to note that though the certain
contents of the certificate have been
found to be defamatory per se, the Defendant No. 2 has not pleaded that the
same were given
in the bona fide performance of professional
duty or was privilege for some other reason. All that he has pleaded is that they were true though he has not
been able to establish the same. In his evidence has admitted that the Defendant
No. 1 approached him for issuance of the certificate though he did not assign
any specific reason for doing so. At
the same time neither in his affidavit-in-evidence nor in cross-examination he has uttered a word about
the plaintiffs suffering from any
other "gynaecological disease" or "psychosis". It has not
been contended that some requirement of public interest demanded the disclosure
of such information. At the same time
at least three witnesses, namely Muhammad
Saleh Memon, the immediate superior of the plaintiff as well as Abdul Qadir Shah and Abdul Rauf, members of the
community having alleged that the
certificate was shown to them by the Defendant No. 1. In the circumstances, Mr. Nasir Maqsood appears to be
justified in contending that the
defendants connived with each other to defame the plaintiff and I am constrained to hold accordingly.
ISSUE NO. 4:
The next question
relates to the quantum of damages. Indeed no special damage has been alleged or
proved and the plaintiff has only claimed general damages for loss of reputation,
mental tension, loss of prospects of further marriage etc. to the extent of Rs.
15,00,000. It is no doubt correct that part from the mental anguish that the
plaintiff might have suffered the imputations in question also tend to diminish
her future prospects of marriage and leading a family life. At the same time it
is extremely difficult to quantify the extent of compensation to which the
plaintiff may be entitled in monetary terms. Mr. Nasir Maqsood has referred to the
cases of American Life Insurance Company v. M.S. Khawqja PLD 1960
Karachi 568, Harold Robert Henrylind v. British Insulated Callender's
Construction Co. Ltd. PLD 1970 Karachi 315, Altaf Gauhar v. Wajid Shamsul Hasan
and another PLD 1981 Karachi 515 and the recent pronouncement of the
Honourable Supreme Court in Soofi Muhammad Ishaque v. Metropolitan Corporation,
Lahore PLD 1996 SC 737 to illustrate the pattern of which general damages have been awarded by
the Courts in their discretion. In the last case the Honourable Court
awarded Rs. 50,000 by way of damages for mental shock only. Keeping in view the
facts and circumstances of the case and principles of law laid down by superior
Courts I am of the view that it would be fair to award Rs. 75,000 against the Defendant
No. 1 for the imputations contained in the divorce deed and a further amount of
Rs. 75,000, jointly and severally against the Defendant No. 1 for the
imputations contained in the divorce deed and a further amount of Rs. 75,000,
jointly and severally against both the defendants in respect of the imputations made
in the medical certificate with 14% interest from the date of decree till payment is
made. The
plaintiff will also be entitled to proportionate cost. The suit is decreed accordingly.
(K.K.F.) Suit decreed.
