CS Article on PRIVILEGED COMMUNICATION - MARITAL PRIVILEGE
Evidence plays a crucial role in the administration of justice whether it is a criminal case or a
civil suit. To prove or disprove a fact, evidence is offered by the litigating parties in support
of their allegations/demands which facilitates a judge to deliver the judgment based on the
evidence tendered and the facts and circumstances of the case. The Standard of proof required
in civil and criminal proceedings are entirely different. Civil cases are decided based on the preponderance of evidence while in a criminal case the entire burden lies on the
prosecution and proof beyond reasonable doubt has to be given. There is neither any
statutory provision nor any legal principle that findings recorded in one procedure may be
treated as final or binding in the other as both cases have to be decided based on
the evidence adduced therein.
Evidence” can be in many forms depending on the context in which it is used. It may refer
to legally admissible testimony or testimony given by a witness in the court. A witness can
testify based on any event he has seen or any communication he has heard or been a part
of. However, there are some communications or matters where courts cannot force the
individual to disclose the details of such communication/matter. These communications are
known as privileged communications A privilege is a legal rule that protects
communications within certain relationships from compelled disclosure in a court
proceeding. For instance, when two individuals enter into a legally recognized
relationship, all communication that takes place between them is protected. These
communications are such that they may not be used as evidence in a court of law against
the persons communicating due to the specific nature of their relationship.
Privileged communications under the Indian Evidence Act, 1872: Various
communications that have been listed as privileged communications under the Evidence
Act, communication during the marriage, or spousal/marital communication is one of them.
Communication during marriage: Section 122 of the Evidence Act, 1872 protects spousal
communications (i.e., communication between a husband and a wife) from disclosure. It
says:
“No person who is or has been married shall be compelled to disclose any communication made
to him during marriage by any person to whom he is or has been married; nor shall he be
permitted to disclose any such communication, unless the person who made it, or his
representative in interest, consents, except in suits between married persons, or proceedings
in which one married person is prosecuted for any crime committed against the other” As for
instance, the husband makes a confession to his wife that he has committed a theft or murder of
a person. The wife to whom the confession is made cannot be called a witness to the Court
and compelled to give evidence against her husband
* Archana Kaul, Joint Director, The ICSI Views expressed in the Article are the sole expression of the Author and may not express the views of the Institute.
The section consists of two branches —
(1) that a married person shall not be compelled to disclose any communication made to
him during marriage by his spouse; and
(2) that the married person shall not be (except in two special classes of proceedings)
permitted to disclose such communication, unless the person who made it, or his
representative in interest consents to the same.
As per the section, there is a prohibition against the disclosure of any communication
between spouses made during the subsistence of marriage unless the person who made it
or his representative-in-interest consents to the same. It is irrelevant whether the
communication is sensitive or strictly confidential in nature. The bar is not only against a
spouse being compelled to disclose the same but also extends to cases where the spouse
may be inclined or willing to disclose the same. In the latter case, the disclosure can be
permitted if the other spouse who made the same, agrees to the disclosure
Principle underlying the privilege
Section 122 of the Indian Evidence Act recognizes the age-old concept of marital confidence
that all communications between spouses during wedlock are sacrosanct. The
prohibition is based on the ground that the admission of such testimony is likely to disturb
the peace of the family and weaken the feeling of mutual confidence. Sir L.H. Jenkins, Chief
Justice of the Calcutta High Court in Nawab Howladar v. Emperor (1913) ILR 40 Cal. 891
remarked that “since decades, the courts have tried to protect the institution of marriage in
matters where evidence or testimony could shatter the marital relationship between a
husband and wife apart. This is one of the reasons why section 122 is still applied in cases
involving offenses of grave nature. The idea is to prevent a spouse to stand at the cross-road
where they may be forced to speak against someone who they have vowed to spend their
lives with”. The bar to disclosure of private communication in marriage is based on a high
import which no court can waive at will through technicalities.
Genesis
The privilege of marital communication apparently seems to have emerged from Common
Law jurisprudence defending the privacy of a married couple. The Commission on Common
Law Procedure in its Second Report submitted in 1853, observed: "So much of the happiness
of human life may fairly be said to depend on the inviolability of domestic confidence that
the alarm and unhappiness occasioned to society by invading its sanctity and compelling
the public disclosure of confidential communications between husband and wife would be
a far greater evil than the disadvantage which may occasionally arise from the loss of light
which such revelations might throw on the questions in dispute ......hence all
communications between them should behold privileged."
When privilege can be invoked
While invoking the privilege under section 122, the important condition to be satisfied is
that “the communication must have been made during the continuance of the marriage.” If
the marriage was subsisting at the time when the communications were made, the bar
prescribed by Section 122 will operate. The principle underlying the section has been
explained in a landmark judgment of Nagaraj v. the State of Karnataka, 1996 Cr.L.J. 2901 (Kar.).
The Court held that the principle underlying section 122 of the Indian Evidence Act would
make it clear that though section 120 of the Evidence Act enables a spouse to tender
evidence in a case against the other spouse except in litigation between themselves either
arising out of the marital relations or in criminal prosecution and in all other cases bars
the disclosure of any statements made by one spouse to another during the subsistence of the marriage.
The privilege under section122 of the Indian Evidence Act extends to all communications
made to a spouse during the subsistence of marriage by the other spouse. Such communications
need not be confidential and apply to all communications. The privilege is not to the
witness, but to the spouse who made the communication, and therefore the witness cannot
waive it at his or her nor can the Court permit disclosure even if he or she is willing to do.
The privilege does not end after the termination of a marriage
It is also now well settled that if the marriage was subsisting at the time when the
communications were made, the bar prescribed by section 122 will operate even after the
wife has obtained a decree for nullity of her marriage [S.J.Choudhary v State, 1985 Cr. LJ. 622
(Del)]. The prohibition is not confined to cases where the communication sought to be given
out in evidence is of a strictly confidential character, but the prohibition is extended to all
communications of whatever nature that pass between husband and wife. The privilege
does not end after the termination of the marriage. [Emperor vs Ramchandra Shankarshet
Uravane(1933) 35 BOMLR 174]
The Supreme Court M.C. Verghese v. T.J. Poonan, AIR 1970 SC 1876 has also held that section
122 will be applied to every communication made during the life of marriage and the same
privilege will continue even after separation or divorce or dissolution of the marital
relation, but only for the communication which was made during the existence of marriage.
When the letters were written by Ponnan to his wife Rathi, they were husband and wife.
The bar to the admissibility in evidence of the communications made during the marriage
attaches at the time when the communication was made and its admissibility will be
adjudged in the light of the status at that date and not the status at the date when evidence
is sought to be given in court
The bar to the admissibility in evidence of communications made during marriage attaches
at the time when the communication is made, and its admissibility will be adjudged in the
light of the status at the date and not the status at the date when evidence is sought to be
given in court.
When such communication can be disclosed
As per section 122 of the Evidence Act, the information can be disclosed if:
1. the person who made it or his representative-in-interest consents to its disclosure; or
2. there is a suit between married persons; or
3. the proceeding in which one married person is prosecuted for any crime committed
against the other
1. The consent of the person is a must who made the communication or his/her
representative. If the person consents to the disclosure of the communication made
during the marriage, then it is admissible in evidence. The consent has to be positive,
and not that it may be imported from a mere waiver. As stated by Supreme Court in M.C.
Verghese v. T.J. Poonan, AIR 1970 SC 1876, “section 122 commands that a wife or
husband cannot be compelled to disclose and, even if she or he is willing to do so be
permitted to disclose any communication made to her or him by the spouse, except on
express consent of the latter, or if he or she is no more, of the legal representative”.
2. In Nawab Howladar v. Emperor (1913) ILR 40 Cal. 891, the Court said that the widow of
a deceased husband is not his 'representative in interest' to give such
consent. In this case, a widow appeared as a witness and disclosed the communications
made by her deceased husband. The Court held that the statement deposed by the wife
of the deceased was a communication made to her during marriage by a person to
whom she had been married. Not only, therefore, could she be compelled to disclose
that communication, but she should not have been permitted to disclose it, for there
was no one who did or could consent to the disclosure. The prohibition enacted by the
section rests on no technicality that can be waived at will but is founded on a principle
of high import which no court is entitled to relax.
3. If there is a suit between a husband and wife, in that event the matrimonial
communication is not protected from disclosure.
4. Where a crime has been committed by one of the spouses against another, as for
instance assault, inflicting bodily injuries, or any other crime and is prosecuted for the
same, the communication between them ceases to be privileged.
Acts or conduct are not protected
Section 122 bares the disclosure of communication by one spouse to the other during
the marriage but not their acts or conduct. A wife can testify as to the conduct of her
husband of which she was the eyewitness but not the conversation. While differentiating
conversations between spouses from acts and deeds the Supreme Court in Ram Bharosey v.
The state of UP, AIR 1954 SC 704, remarked that the statement of the wife “that the accused was
seen in the early hours of the 27th May 1952 while it was still dark, coming down the roof
of his house, that he went to the bush Kothari and came out again and had a bath and put
on the dhoti again. This is not inadmissible under section 122, as it has reference to acts and
conduct of the appellant and not to any communication made by him to his wife”.
Similarly while reiterating the observations of the Supreme Court in above-mentioned
case, the Allahabad High Court in Shahnawaj Akhtar v. State of Uttar Pradesh, (1991)
noted that “the evidence that the wife produced in the court was regarding the act that the
husband had done; the conduct of a husband in front of his wife cannot be put in the ambit
of “conversation” under section 122 because the act was done “for the sake of doing, not for
the sake of disclosure”.
The privilege does not operate against a third person
Section 122 of the Evidence Act only prevents disclosure in giving evidence in a court of the
communication made by the husband to the wife. But when the communication is overheard
by a third person or the information falls into the hands of a third party, in that event the
communication loses confidentiality and the privilege ceases to exist. Hence, they can be
permitted to give evidence about marital communication.
The House of Lords in Romping v. Director of Public Prosecutions, (1962) 3 All ER 256 where
Romping the mate of a Dutch ship was tried for a murder committed on board the ship. Part
of the evidence for the prosecution admitted at the trial consisted of a letter that Romping
had written to his wife in Holland which amounted to a confession. Romping had written
the letter on the day of the killing and had handed the letter in a closed envelope to a
member of the crew requesting him to post it as soon as the ship arrived at the port outside
England. After the appellant was arrested, the member of the crew handed the envelope to
the captain of the ship who handed it over to the police. The member of the crew, the captain, and the translator of the letter gave evidence at the trial, but the wife was not called as
a witness. It was held that the letter was admissible in evidence.
Lord Reid, Lord Morris of Borth-y-Gest, Lord Hodson, and Lord Pearce were of the view that
at common law, there had never been a separate principle or rule that communications
between a husband and wife during the marriage were inadmissible in evidence on the ground
of public policy. Accordingly except where the spouse to whom the communication is made
are a witness and claims privilege from disclosure under the Criminal Evidence Act, 1898, (of
which the terms are similar to S. 122 of the Indian Evidence Act though not identical),
evidence as to communications between husband and wife during marriage is admissible
in criminal proceedings.
To conclude, what the law in section 122 of the Evidence Act inhibits, is the disclosure of marital
confidence. What would otherwise have been cogent evidence under section 122 is barred
to uphold the sacredness of domestic union. The purpose is the protection of marital
confidence which is essential for the continued sustenance of marital relations that pave
the way for the welfare of the succeeding generation. The courts have strived to protect the
privacy that a married couple holds, even if one of them commits an offense. This rationale
is still being used by the courts to prevent hurting the peace present in wedlock. As
observed by Sir L.H. Jenkins in Nawab Howladar v. Emperor, it must be noted that a spouse
readily agrees to testify the other has already abandoned the idea of shielding their own
marriage; therefore, the court takes the onus on themselves to neglect the greater good of
public interest in a crime, to protect this sanctity, is alarming.
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