Introduction

The communications between a husband and a wife have been accorded the status of privileged communication under Section 122 of the Indian Evidence Act, 1872.

The section specifies that for the purpose of recording evidence, a person who is or has been married at any point in time cannot be:

• compelled to disclose any communication made to them by their spouse or ex-spouse throughout the marriage;
• Even if they are willing, they are not authorised to disclose anything without their spouse’s approval.

In the case of S.J Choudhary v. The State, the Hon’ble High Court of Delhi held that it is significantly worse to force spouses to disclose their private communications than to get no information at all. Thus, such conversations must be privileged.

In addition, the section states that this privilege continues to exist even after the dissolution of the marriage, whether by death or divorce. Consequently, if a woman who had been divorced and remarried was called as a witness against her ex-husband for a crime that he had committed during the course of their marriage, then any communication pertaining to the commission of the aforementioned crime shall be regarded as privileged communication pursuant to Section 122 of the Act.

History

The concept of spousal privilege is rooted in two medieval concepts, as observed in Trammel v. United States –

1. A person could not incriminate himself since he had an interest in the proceedings, and
2. The married couple was considered a single entity due to the lack of a woman’s autonomous legal existence.

Thus, it was considered that a communication disclosed by one spouse was inadmissible regardless, the other spouse was unable to do so either.

The Indian Evidence Act of 1872 provides for a provision classifying conversations made during marriage as privileged communications, often known as spousal privilege. It declares that a married individual cannot be forced to make public any communication between himself and their spouse, and prohibits him from disclosing such communication. It is a relic of British colonial law, which was also used in Great Britain.

This section also acknowledges the age-old idea of marital confidence, which holds that all talks between spouses throughout the marriage are sacrosanct.

Why Are Spousal Communications Privileged?

In England, The Commission of common Law procedure in its Second Report  submitted in 1853, observed as under:

 “so much of happiness of human life may fairly be said to depend on the inviolability of domestic confidence that the alarm and unhappiness occasion to society by invading its activity and compelling the public disclosure of confidential Communications between husband and wife would be a for greater evil that the disadvantage which occasionally arise from the loss of light which such revelations might throw on the questions and dispute and all communications between them should be held privileged.”

The same has been quoted by the Hon’ble High Court of Kerala in the case of Alli Noushad Vs. Rasheed.

Thus, the concept behind this privilege is that if private conversations between spouses are admissible as evidence, such evidence has the potential to disrupt family harmony and cause a domestic brawl. That will hinder the partners’ mutual trust and confidence and undermine their marriage.

Lord Taylor in the case of Mercer Vs. State, observed that society has a vested interest in preserving the serenity of families and the sanctity of the institution of marriage, and its greatest protection is to watch jealously against any breach of the sacred confidence inherent to and inseparable from the married status. Therefore, the legislation established a restriction on any bridge of trust between husband and wife, deeming any private conversations between them inadmissible for either of them to reveal as witnesses.

Which Communications Can Be Deemed Confidential?

To be privileged for purposes of this section, the communication must be made only by a spouse during the marriage. Any communication made before to the marriage or after its divorce will not be protected.

The Hon’ble Supreme Court in the case of Ram Bharosey v. The State of Uttar Pradesh has observed that the mere doing of an act in the presence of the spouse cannot be considered as communication between them. In the instant case, the wife had seen her husband descending from the roof and then emerging from the bathroom wearing different clothing. Since, the conduct of the husband was not a communication, the wife’s evidence was admissible. It is not like every domestic act would come under the purview of spousal communication. The Communication must be delivered in some fashion, whether vocal, or nonverbal.

Under this section, it makes no difference whether the communication was sensitive or confidential. Regardless of the means of communication, every discussion or communication between a husband and wife is protected by the spousal privilege. The same was held in the case of Emperor v. Ramachandra.

However, this rule was later overruled in the case of Bhalchandra Namdeo Shinde v. the State of Maharashtra, wherein the Court laid down Section 122 cannot be given wide interpretations that alters its scope. In this case, the wife was summoned to testify against her husband, who was on trial for allegedly committing murder. She was permitted to testify about his conduct and acts, but not their communication. If the court is tasked with interpreting it, the literal rule of interpretation must be adhered to, and the scope must be limited, since this decreases the admission of evidence in court, which might be crucial in any case. The Court further held that for the purposes of this section, “communication” refers solely to vocal or written words said by a spouse, not their actions.

In the case of Nawab Howladar v. Emperor, a widow wanted to serve as a witness and reveal her dead husband’s communications. The Privy Council ruled that in order for disclosure of communications, the consent to be accepted as evidence must be expressed and cannot be implied, and in the absence of a representative in interest, it would be impossible to get permission; hence, this kind of communication is completely unacceptable. Thus, a widow does not qualify as a representative of her late husband’s interests and hence cannot consent. The Court further clarified that conversations between spouses must be kept private only if they occurred during the marriage, and not before or after its divorce.

Exceptions To The Spousal Privilege Under S.122 Of The Act

When communications between spouses are admitted-

The Section 122 of the Evidence Act, 1872, provides for an exception to the privilege wherein, such communications made during marriage can be admitted as evidence when the communications are pertaining to the crime committed by one spouse against the other. The gist of this exception is that it must be the crime committed by one married person against their spouse.

The Hon’ble High Court of Calcutta in the case of Norendra Nath Mozumdar Vs. State observed that when one spouse is litigating against the other, or when one spouse commits a crime against the other, the protection offered by this section cannot apply to lawsuits between married parties, since preventing disclosure in such a situation would defeat justice. This exception also extends to cases of defamation, however, it does not include an offence committed against a child, even though such offence may cause grief to the parent.

Furthermore, if a person intercepts a letter containing a communication between two spouses, the person is not restricted by this Section to not disclose its contents. In M.C. Verghese v. T.J. Pennon , letters that had been written by the respondent to his wife, were admissible as evidence by the appellant.

Additionally, such statements that have been overheard by others are also admissible, as held in Appu v. State AIR, where a husband confessed to his wife in the presence of others. Moreover, the court determined that Section 122 protects the person, not the communication.

Conclusion

The idea of privileged communication is thus founded on the assumption that the communication was made on the basis of mutual trust and confidence that it would remain secret, and that its revelation would cause substantial harm to the rights of the person making the communication. In addition, the disclosure of such communications between spouses would inflict irreparable harm to the couple’s family and marital life, leading to discord and inevitable annihilation of the marriage.

The Section 122 of the Indian Evidence Act, 1872, thereby serves as a provision to protect the personal and social rights of individuals against self-incrimination, as guaranteed by Article 20(3) of the Constitution, and also serves as a provision to protect communication between spouses made during the span of their marriage.

Referred Judgements

1. J Choudhary v. The State  –[1985 CriLJ 622]
2. Trammel v. United States –  [445 U.S. 40 (1980)]
3. Alli Noushad Vs. Rasheed  –[CRLJ-2022-0-3023]
4. Mercer Vs. State –  [40 Fla 216, 226: 34 SO 154]
5. Ram Bharosey v. The State of Uttar Pradesh –[AIR 1954 SC 704]
6. Emperor v. Ramachandra  –[(1933) 35 BOMLR 174]
7. Bhalchandra Namdeo Shinde v. the State of Maharashtra – [ALLMR(CRI)-2003-0-1149]

8. Nawab Howladar v. Emperor  –[(1913) ILR 40 Cal 891]
9. Norendra Nath Mozumdar Vs. State  –[AIR(CAL)-1951-0-140]
10. C. Verghese v. T.J. Pennon  –[(1969) 1 SCC 37, 41]
11. Appu v. State AIR  –[1971 Mad. 194]

References

1. The Effects of Communication Styles on Marital Satisfaction by Hannah Yager (University of West Florida)
   https://www.uncp.edu/sites/default/files/2020-05/Literature%20Review%20Example.pdf

2. Marital Satisfaction and Communication Skills among Married Couples by Farah Harris and Aneesh Kumarhttps://www.researchgate.net/publication/324680369_Marital_Satisfaction_and_Communication_Skills_among_Married_Couples

3. https://old.amu.ac.in/emp/studym/99998369.pdf
4. Books –
   • Law of Evidence – Ratanlal & Dhirajlal (27^thedition)
   • Law of Evidence – Woodroffe & Amir Ali (21^st edition)