No Stay On Release Of 'Gangubai Kathiawadi' Movie; Supreme Court Dismisses Plea Of 'Adopted Son'

The Supreme Court on Thursday dismissed a special leave petition which sought a stay on the release of Sanjay Leela Bhansali movie "Gangubai Kathiawaidi" starring Alia Bhatt.

A Bench comprising Justice Indira Banerjee and Justice JK Maheshwari dismissed the special leave petition filed by a man named Babuji Shah claiming to be Kathiawadi's adopted son challenging Bombay High Court's order refusing to stay the release of the film. His grievance was that the movie was allegedly defaming the image of his adoptive mother.

Yesterday, the Court had suggested the makers change the title of the name and kept the matter for today to enable the lawyers to get instructions.

Today, Senior Advocate C Aryama Sundaram, appearing for director Sanjay Leela Bhansali, opposed the demand for change of title. He advanced the following arguments in essence :

1. The plaintiff has not conclusively established he is the adopted son of Gangubai Kathiawadi. There is not even a prima facie evidence for adoption.

2. In any event, the cause of action extinguishes with the death of the person, and legal heirs cannot pursue the same.

3. The film is actually glorifying the lady. It shows how she rose from a red light area to become a social worker. The film is based on a book titled "Mafia Queens of Bombay" published in 2011, which has not been challenged till now.

4. The film has got the certification from the Central Board of Film Certification.

5. The name has already been published and widely advertised long ago. In that event, the party cannot seek injunction and can move for damages.

6. Bombay High Court yesterday dismissed two other last minute petitions seeking to stay the film release on the ground of alleged defamation of Kamathipura area.

Sundaram placed reliance on the judgment in Bobby Arts International case which rejected a challenge to the release of the film "Bandit Queen" on the life of Phoolan Devi.

"If someone is going to make a film on MS Subbulakshmi, are we going to hide the fact that she was a devadasi", Sundaram submitted highlighting that truth is a defence in defamation.

Sundaram also pointed out the suit does not seek a declaration that the plaintiff is the adopted son or the movie is defamatory and only seeks injunction. In response to this, Justice Banerjee observed that declaration may not be necessary if other parameters are satisfied for grant of injunction. The senior counsel responded that at least a prima facie finding on defamation should be there.

He further pointed out that the judgment of the High Court was pronounced in July last year and the special leave petition is being considered just few days ahead of the scheduled release. By this length of time, third party rights for media have been created over the film and the balance of convenience is completely in the makers' favour.

At this juncture, the counsel for the petitioner submitted that the special leave petition was filed in September last year and was not getting listed despite several mentionings.

Sundaram said that the film was planned in 2018 and the promotions have been going on for a long time. "The social media is in awe of this lady and all are saying this is about the rise of a woman. Nobody thinks that the film is defamatory", he submitted.

Justice Banerjee observed that the issue was about sensibilities of the title and the impact on the so-called family members. The judge pointed out that there are legal prohibitions prohibiting the disclosure of the identities of rape victims, having regard to present social sensitivities. 

"What he is saying is that lady is not there but members of family, when daughters are going out...", the judge observed.. Sundaram reiterated that the movie is in fact lauding the woman and presenting her life as an inspiring story.

Senior Advocate Mukul Rohatgi, appearing for Bhansali Productions Pvt Ltd, supplemented Sundaram's submissions. He highlighted that the film is slated for release in thousands of theatres across the country tomorrow and tickets have been already sold. He further said that third party rights for satellite broadcast and distribution have also been created.

Rohatgi referred to Section 306 of the Indian Succession Act to highlight the argument that the cause of action for defamation will not survive to the legal heirs on the death of the person.

Bhansali Productions Private Ltd, Sanjay Leela Bhansali, actor Alia Bhatt and authors of the book "Mafia Queens of Mumbai" Hussain Zaidi and Jane Borges were the respondents in the case.

When you were adopted? How you were adopted? Court asks petitioner

The petitioner's counsel Rakesh Singh submitted that the book has a line that the woman had an affair and she was pushed into prostitution. The movie's trailer has also such a dialogue and this was defamatory, he argued.

The bench pointed out to the petitioner's counsel Rakesh Singh that the pleadings are vague regarding adoption.

"You will have to say how & in what manner you were adopted. You have not mentioned anything anywhere. Where do you get the right?", Justice Banerjee asked. The counsel submitted that in those times, adoption by a female of an orphan was not permissible.

"You must have said so in your pleadings that in those time adoption was not allowed but you have been raised by her", Justice Banerjee said.

The bench said that when an injunction is sought, there should be clear pleadings. "You have not shown any prima facie case", the bench said.

The bench said that it was dismissing the Special Leave Petition and the reasons will follow.

Background 

The Bombay High Court in its impugned order had observed that according to the principle of tort, an action for defamation dies with the person. "The contents of defamatory nature against the so-called adoptive mother of the appellant (Shah) dies with her death," he said. That apart, the court held that Shah was unable to prima facie demonstrate that he was the son of deceased Gangubai. Neither has Shah sought to be declared as the adoptive son and hence suffered some injury, the court held.

The petitioner, Babuji Shah before the Top Court had sought an ad-interim ex - parte order restraining makers from printing, promoting, selling, assigning, etc. the novel namely "The Mafia Queens of Mumbai" or the film namely "Gangubai Kathiawadi" during the pendency of the case.

Yesterday, the Top Court had suggested the makers of the movie Gangubai Kathiawadi, set for release this Friday, to change the name of the movie.

Shah alleged that the contents of the book 'The Mafia Queens of Mumbai' on which the movie was based were defamatory and constituted an infringement on his right to privacy, self-respect and liberty.

Shah had claimed that his "mother" was portrayed as a prostitute, brothel keeper and mafia queen in the film and the book.

The petitioner had argued that the impugned order passed by the High Court though was of interim nature but in view of nature of dispute and the specific finding recorded by the Court in the order, made the entire pending appeal infructuous.

Case Title: Babuji Shah vs Hussain Zaidi and others| SLP(c) 15711/2021

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