Judgment M.L.Visa, J. 1. The petitioner in this application has prayed for quashing the order dated 11.4.1996 passed by Shri Abhay Kumar, Judicial Magistrate, Auran-gabad, in Complaint Case No. 85/96 whereby and whereunder the learned Magistrate has directed to issue summons against the petitioner for his appearance in the case for facing trial. 2. The facts giving rise to this matter, in brief, are that opposite party no. 2 Binod Bihari Prasad, filed a complaint (annexure-1) against the petitioner in the court of Chief Judicial Magistrate, Auran-gabad, stating therein that his daughter Sakuntala Devi was married to petitioner in the year 1984 according to Hindu rites and thereafter she and petitioner were living as husband and wife and four children were born out of this wedlock. In the year 1992 the petitioner after torturing his wife, mentally and physically, took her with children to opposite party no. 2 and left there and stopped maintaining them. The daughter of opposite party no. 2 filed a petition in court claiming maintenance for herself and for her children and her prayer was allowed. The petitioner thereafter filed a divorce suit against the daughter of opposite party no. 2 before the District Judge, Aurangabad, which was transferred to the court of 2nd Additional District Judge, Aurangabad. In para-7 of divorce petition the petitioner levelled allegations against opposite party no. 2 by stating "that the respondent father and the father-in-law of the petitioner is very shrewed and greedy man and he is earning money from selling the body of her daughter (respondent)". The copy of the petition was served on the daughter of opposite party no. 2 by court and daughter of opposite party no. 2 read the copy of the petition and from her, opposite party no. 2 also came to know about the statement made against him. He obtained certified copy of the petition filed by petitioner in divorce suit. Opposite party no. 2 then filed a complaint under section 500 and 504 of the Indian Penal Code (in short, IPC) before the court of CJM alleging therein that the petitioner knowingly with an intent to harm the reputation of opposite party no. 2 made false statements against him in the petition of divorce case and by the action ot petitioner the prestige of opposite party no. 2 made false statements against him in the petition of divorce case and by the action ot petitioner the prestige of opposite party no. 2 who is a retired teacher and is a respectable man has been lowered down, The CJM, Aurangabad, after receipt of the complaint made over the same to Shri Abhay Kumar, Judicial Magistrate, Aurangabad, under section 192 of the Code of Criminal Procedure (in short, Cr. P.C.) who after making the inquiry under section 202 Cr. P.C., by the impugned order issued summons for the appearance of 1 the petitioner for facing trial. The petitioner has now, as stated above, in this application challenged this order. This matter was first listed before a single Judge of this Court where rival contentions were raised by parties on the point of publication of the statements made by petitioner in divorce case against opposite party no. 2. The learned single Judge observing that since question of law is involved in this case referred it to a Division Bench. This is how the matter is now before us. 3. That petitioner has filed a suit for divorce against his wife who is the daughter of opposite party no. 2, which is numbered as Matrimonial Case No. 85/96 and is pending in the court of District Judge, Aurangabad is an admitted fact. The fact that petitioner in para-7 of the petition of Matrimonial Case No. 85/96 filed by him against his wife who is the daughter of opposite party no. 2 has stated that opposite party no. 2 is very shrewed and greedy man and he is earning money from selling the body of her daughter (respondent) is also not in dispute. 4. Learned counsel appearing on behalf of the petitioner has submitted that as the statement by petitioner in respect of opposite party no. 2 has been made in a petition of a matrimonial case it cannot be said that there is publication of such statement, particularly when it is the own case of opposite party no. 2 that he came to know about the statement from the certified copy of petition. He has relied upon two decisions, one in the case of B.P. Bhaskar V/s. B.P. Shiva (1993 Cri. L.J. 2655) and other in the case of S.S. Sanyal and anr. V/s. K.V.R. Nair and ors. (1987 Cr. L.J. 2074). 2 that he came to know about the statement from the certified copy of petition. He has relied upon two decisions, one in the case of B.P. Bhaskar V/s. B.P. Shiva (1993 Cri. L.J. 2655) and other in the case of S.S. Sanyal and anr. V/s. K.V.R. Nair and ors. (1987 Cr. L.J. 2074). In the case of B.P. Bhaskar V/s. B.P. Shiva (1993 Cri. L. J. 2655) there was exchange of legal notices between the accused and the complainant and the notice issued by the accused was alleged to have incorporated certain scurrilous imputation against the complainant. The accused had sent notice through his lawyer to the complainant in reply of a notice issued by the complainant which was also through lawyer of complainant. In presence of these facts applying the principle of agency between advocate and his client it was held that receiving reply by the advocate on behalf of his client is one of the instances where the functioning of an agent is involved and receipt of reply by the advocate is in effect receipt by the client himself. It was held that there was no publication of imputation contained in the notice. So I find that in view of the aforesaid facts sending of a notice by a person through his advocate to another person containing some defamatory statements was not held to be publication on the principle that it was virtually a communication between two persons. The role of advocate while sending a notice to this reply on behalf of their clients was merely of an agent. In the case of S.S. Sanyal and anr. V/s. K. V. R. Nair and ors., (1987 Cri L.J. 2074) a chargesheet framed by the President and other person in charge of a Company against certain office bearers of the Association of the Company stated that seizure of some confidential documents of the Company from the possession of office bearers of Association of Company revealed that office bearers of Association of Company were engaged in dishonest, surreptitious and fraudulent procurement, storage and possession of copies of vital and confidential documents of Company for wrongful gains and motives. This statement in the chargesheet was challenged by concerned office bearers alleging defamation. This statement in the chargesheet was challenged by concerned office bearers alleging defamation. It was held that contents of chargesheet do not amount to any defamatory statement and in any case there was no publication thereof from the side of accused petitioner and the imputation had no reason to get publicity unless it was given publicity by the complainant opposite party himself. The facts of the present case are quite different than the facts of the aforesaid cases relied upon by the learned counsel for petitioner. In the present case the petitioner made statements in a petition against opposite party no. 2 that he is a very shrewed and greedy man and he is earning money from selling the body of her daughter (respondent) and filed it in a court. Admittedly the petition was filed in a matrimonial case against the wife of petitioner and opposite party no. 2 was not a party to that suit. After filing the copy of petition was served on the wife of petitioner who happens to be the daughter of opposite party no. 2. She went through the notice and came to know about the defamatory statements made against her father and opposite party no. 2 came to know about this fact from her and he obtained a certified copy of the petition and he himself saw the allegations made against him by the petitioner. It was not a communication between petitioner and opposite party no. 2. So I find that learned counsel of opposite party no. 2 is right in his submission relying upon the decision reported in AIR 1966 Madras 363 that once the petitioner making defamatory statements against opposite party no. 2 in his complaint filed the same in court it amounts to publication. The meaning of the word "publication" in the Oxford English Dictionary [Page 1560, Vol. VIII (Reprint) 1961] is given as "the action of making publicly known". When the petitioner filed a petition of matrimonial suit in the court making certain statement against opposite party no. 2 that did not remain confined between the petitioner and opposite party no. 2. Moreover, the case was filed only against the wife of petitioner and the copy of the petition containing these allegations was served by court on the wife of petitioner who is a third person so far allegation against opposite party no. 2 made by petitioner is concerned. 2. Moreover, the case was filed only against the wife of petitioner and the copy of the petition containing these allegations was served by court on the wife of petitioner who is a third person so far allegation against opposite party no. 2 made by petitioner is concerned. Thus, I find that the action of petitioner after making certain allegations against opposite party no. 2 in his petition and thereafter filing the same in court amounts to publication of those allegations. 5. The next point urged on behalf of the petitioner is that the petitioner has filed a matrimonial suit against his wife under section 13 (1) of Hindu Marriage Act, 1955 on the ground of adultery and in para 6 of his petition he has stated that his wife is living in adultery and after making these statements in para 7 of his petition he has stated that opposite party no. 2 who is father-in-law is instrumental in the act of his daughters living in adultery and he himself is selling her body and the suit is still pending and before its decision with a contrary finding on the allegation of petitioner the action of opposite party no. 2 in filing a defamatory case against the petitioner is premature. i am unable to accept this argument. The petitioner has filed matrimonial suit against his wife on the ground that she is living in adultery. As submitted on his behalf, he has made allegations against her of her living in adultery in para-6 of the petition. There was no need of making any allegation against opposite party no. 2 in para 7 of the petition alleging that he is a very shrewed and greedy man and he is earning money from selling the body of his daughter, wife of petitioner. This is not in support of the case of petitioner that his wife is living in adultery. On the other hand, it is contrary to the case of petitioner that his wife is living in adultery for the reason that if opposite party no. This is not in support of the case of petitioner that his wife is living in adultery. On the other hand, it is contrary to the case of petitioner that his wife is living in adultery for the reason that if opposite party no. 2 is selling the body of his daughter in order to earn money as he is a very shrewed and greedy man, as alleged, it cannot be said that wife of petitioner is living in adultery at her own will because in that case it will mean that she is being compelled to act according to the wishes of her father with whom she is presently living. Section 13 (1) of Hindu Marriage Act, 1955 lays down that on a petition presented by the husband or the wife, marriage between them may be dissolved by a decree of divorce on the ground that other party after solemnization of marriage had voluntary sexual intercourse with any person other than his or her spouse. It such sexual intercourse is not voluntary it will not be a ground for a divorce. So I find that the statements made against opposite party no. 2 in para-7 of the petition which has been filed by the petitioner in matrimonial suit are quite independent and are not made in support of the case of petitioner that his wife is living in adultery. These statements are made in defamation of opposite party no. 2 per se. The Madras High Court in the case of Dr. J. Sudar-shan V/s. R. Sankaran, 1992 Cr. L.J. 2427 has held that if allegations in plaint are per se defamatory, criminal prosecution against plaintiff is maintainable irrespective of pendency of suit because both the proceedings are not parallel and their scope is quite different. In the present case also, I find that statements made against opposite party no. 2 by petitioner in matrimonial suit were quite unwarranted and it has got no bearing with issue involved in that suit and therefore opposite party no. 2 is entitled to file a complaint for defamation against the petitioner. 6. Lastly it has been argued on behalf of petitioner that his action is protected by 9th exception to section 499 IPC. 2 by petitioner in matrimonial suit were quite unwarranted and it has got no bearing with issue involved in that suit and therefore opposite party no. 2 is entitled to file a complaint for defamation against the petitioner. 6. Lastly it has been argued on behalf of petitioner that his action is protected by 9th exception to section 499 IPC. This exception covers only those cases where imputation on the character of another is made provided the same is made in good faith in the interest of the person making it or of any other person or for the public good. Here the petitioner filed a divorce suit against his wife on the ground that she was living in adultery. Had the wife of petitioner before the decision of the matrimonial suit come forward for filing defamation against him on the basis of allegations against her that she is living in adultery the matter would have been different and in that case the plea of protection under 9th exception to section 499 perhaps would have been available to petitioner. But here the petitioner has made statements against his father-in-law, opposite party no. 2 who was not a party to the suit and the statements made were not at all required to prove the case of petitioner in the matrimonial suit and therefore the stand of petitioner that he made such statement in the protection of his interest can not be accepted. 7. In the result, I find no merit in this application and the same is therefore dismissed. Narayan Roy, J. 8 I agree.