Spousal Privilege in Indian Evidence Act

Privilege communication, as the name suggests, is a protected communication between two or more individuals. Under no circumstances can the details of such conversations be forced to be revealed by any Court of Law. There are majorly three types of privileged communication – spousal privilege, state privilege and attorney-client privilege.

As per Section 122 of the Indian Evidence Act, ‘Communications during marriage – No person who is or has been married, shall be compelled to disclose to reveal any communication made to them during marriage by any person to whom they are or have been married; nor shall they be allowed to reveal any such communication, unless the person who made it, or their representative in interest, consent, except in legal suits between married individuals, or proceedings in which one married person is prosecuted for any crime they have committed against the other.’

Section 122: Outlining Marital Privileges

This section of the Constitution has been modelled on safeguarding the harmony of the relationship between spouses. Section 122 states that any communication between spouses is to be considered privileged in nature.

This privilege can be overridden based upon two specific requirements:

• Firstly, the spouse witnesses to the statement being made is willing to disclose the details of the conversation.
• Secondly, the other spouse should express consent to the disclosure of the details of the communication. This means that the other spouse who made the communication holds the privilege, even if the witness spouse wants to disclose such communication.

However, the one exception to this privilege applies when the spouses are involved either in a legal suit against each other or one spouse is prosecuting the other for some crime against them. Considering the substantial consequences of marital privilege in trial proceedings, Section 122 has faced several judicial decisions that have clarified its scope and elements.

Marital privilege seems to have originated from common law jurisprudence. The basic principle behind this is privilege is mentioned in the case of S.J. Choudhary vs The State 1985 Crile 622 that was decided on 26 July 1984. In the case, Justice Khanna stated, ‘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 light which such revelations might throw on the questions in dispute hence all communications between them should be held privileged.’

This concept was covered again in English cases of Pringle v Pringle and Mercer v State. Therefore, marital privilege exists as it is vital to preserve amity and sustain full confidence between a husband and a wife, therefore viewing the relationship of marriage as a sacrosanct institution and somewhat placing it above judicial concerns.

Another origin of this law can be traced back to medieval times, during which the wife was deemed to be the property of their husband and the concept of husband and wife being a single unit was quite prevalent.

• Section 122 of the Indian Evidence Act safeguards all communications between spouses, during the period of them being married, and prevents it from being presented in Courts as evidence.
• Although Section 122 may seem rigid at first, it does have some exceptions including not protecting the spouse if they are accused of an offense against the other spouse.
• In the case of M.C. Vergliese v. T.J. Ponnam Air 1967 Ker 228, the Supreme Court held that Section 122 shall be applicable to all communications made during their married life and that it shall continue to be applicable even after separation, divorce or dissolution of their marital relation, but only for communication made during the period when their marriage existed.

Spousal Confidence Privilege: Norms & Exceptions

Section 122, Indian Evidence Act consists of provisions on marriage communication privilege, also referred to as spousal privilege. It basically means that a married individual cannot be forced to disclose any communication that has taken place between them and their spouse. It also disallows the individual from making their conversations public.

This concept of spousal privilege originated from two medieval concepts, where a person could not implicate against themselves as they have an interest in the proceedings, and that the married couple would be one entity, considering the absence of an independent legal existence of a woman.

• As a result, it was deemed that the communication revealed by one spouse shall not be admissible, after which it was stated that the other spouse cannot do so either. Considering the lack of rights for women at the time, they were referred to as ‘property’ of men, which gave way to the logic that an individual’s property will not be able to testify against that property’s owner.

There are two types of this privilege, namely Testimonial Privilege and Spousal Confidence Privilege. Testimonial privilege removes the responsibility from a witness to produce evidence against the accused, which in this case shall be a spouse against a spouse. It aims to promote matrimonial harmony and prevent discord between couples.

• Section 122 of the Evidence Act, 1872 is related to the Spousal Confidence Privilege, which is basically concerned with safeguarding communications between spouses and prevents one of them from disclosing details of such conversations during a testimony. However, it must be noted that there are a few exceptions to this privilege.

Exception One: The first exception would be that such communications can be disclosed and shall be considered admissible only if the person who made the communication in question consents to it. Although if the spouse has passed away and there is no representative-in-interest appointed for them, consent would not be possible and thus, communication would not be admissible.

Exception Two: Another exception would be if the spouses are in a suit against each other, where the word ‘suit’ refers to any legal proceedings between spouses, as clarified by the 185th Report on the Indian Evidence Acct of the Law Commission of India.

Exception Three: The third exception would be if one of the spouses was involved in a criminal charge, including bigamy.

Other Exceptions: These include acts committed by a spouse to not be termed under communication, for example, a wife seeing her husband hide a murder weapon after returning from a crime scene. This shall not be deemed as private communication and would be admissible in court, as per Ram Bharosey v. State of Uttar Pradesh. In addition, communications overheard by a third party shall also be admissible as per Appu v. State, where a husband confessed to his wife in the presence of other individuals. If an individual intercepts a letter of communication between two spouses, they shall not be restricted by the Section to not disclose the contents of the letter.

Issues with Section 122

There are a few issues with Section 122 that must be addressed. The first issue would the be extension of this privilege even if the marriage is over. As per the Section, the communication must be made during the marriage, but the privilege of such communications being inadmissible lasts post separation as well. The primary aim of the Section is to safeguard matrimonial harmony, which would be non-existent after separation. This can potentially lead to absurd results, which would hinder justice.

While this provision can also be traced back to the colonial era, the English legal system has itself removed this provision. As per the Police and Criminal Evidence Act, 1984, the ex-spouse, post-divorce, is considered to be a competent witness against their accused ex-spouse. This permits the former spouse to speak as an ordinary witness not constrained by the restrictions of communication privilege.

Another issue with the section is visible in cases of child abuse by parents. If one parent abuses the child, it is understandable that the child would reach out to the other parent to complain. As such, a communication would take place between the two parents, which would be inadmissible. This would prevent the child from getting justice as only the child’s statement and lack of medical evidence would not be considered reliable.


This demands that, in order to prevent injustice, the extension of the privilege of matrimonial communication to former spouses must be removed and certain exceptions be added in cases of child abuse.

Furthermore, the rise in the number of live-in relationships and the progressive nature of Courts in granting rights to such couples can potentially hinder the truth-finding process and obstruct in delivering justice as people can simply pose as live-in couples and not testify against each other. This develops a need to setup a process of registration, where government can extensively scrutinize the application and determine if they match the criteria, where their live-in relationship can be safeguarded under the scope of Section 122.

Conclusion

At the end, we can basically conclude that although Section 122 has a valid reason to exist, it has certain loopholes that must be amended. Even though spousal privilege must be granted and communications between couples should be protected, there need to be some exceptions that allow justice to be delivered in cases where one spouse’s testimony is vital to prosecute the other. Furthermore, since the aim of spousal privilege is to protect matrimonial harmony, it should not exist once the marriage has broken down.