LAW OF EVIDENCE PROJECT

PRIVILEGED COMMUNICATION:
HUSBAND & WIFE

Submitted by:
SHARIKA.R

973

IX Semester

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 TABLE OF CONTENTS
TOPIC PAGE

 Introduction 3

 Evolution- Common Law 4

 Legislative Changes 6

 Indian Law 8

 Scope 9

 Eavesdropper Rule 12

 Conclusion 13

 Bibliography 13

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 1. INTRODUCTION
Privileged communication is a kind of information which cannot be admitted in a court of law as
evidence due to the nature of the relationship the two persons involved in the communication
share. It is a private statement that must be kept in confidence by the recipient with the benefit of
the communicator in mind. Even if it is relevant to a case, a privileged communication cannot be
used in court as evidence barring certain exceptions. There are three types of privileged
communications, namely, spousal privilege, attorney-client privilege and state privilege. In this
project work, I will be dealing with spousal privilege. Matrimonial communications were
considered as privileged communications between spouses, which should not be revealed as
evidence.1 However, this rule has been watered down over the years.

In India, this concept has been dealt with by Section 122 of the Indian Evidence Act, 1872.
Although the protection of marital communications relates to the promotion and preservation of
the marital relationship, it involves other considerations. There is a need to review Section 122
arises from its potential to hamper the dispensation of justice by basing decisions on incomplete
facts. Pertinent issues relating to cases of child sexual abuse and other offences against other
relatives can never be properly addressed, unless evidence from spouses is provided. In
understanding the concept a wide array of issues need to be addressed: If policy demands that
such confidences be preserved, how wide does the net of inviolability spread? Should such
communications be protected from exposure where it has been dictated to a third party?
Furthermore, should all communications be protected or only those which are confidential? The
questions posed above are concerned not only with the competence of spouses to testify but also
with the admissibility of the evidence.

Here, I will be tracing the history and developments of Section 122 and will then delve into the
rationale behind the concept, followed by its elements. Thereafter, I will also look at the
effectiveness of the provision with regard to justifying the rationale.

1
Peter Murphy, Murphy on Evidence, Oxford University Press (15 th ed, 2017)

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 2. EVOLUTION OF THE PRIVILEGE

The legal history relating to spousal disqualification for testimony can be divided into two
phases: Firstly, its development in common law and secondly, the legislative developments.

2.1 COMMON LAW

Lord Edward Coke observed in 1628 that “it hath been resolved by the Justices that a wife
cannot be produced either against or for her husband, quia sunt duae animae in carne una [for
they are two souls in one flesh], and it might be a cause of implacable discord and dissention
between the husband and the wife, and a means of great inconvenience.”2 There were primarily
two reasons for this. The wife was not competent to give evidence and her evidence was also
otherwise inadmissible on grounds of public policy.3 Spousal disqualification is based on two
tenets of jurisprudence: (1) Parties were historically incompetent to testify on their own behalf
based on the theory that their interest in the proceeding made it probable that their testimony
would be unreliable. (2) Husband and wife were considered “one person”, and, thus, could not
testify against each other; however, since wives were not historically recognized as having a
separate legal existence from their husbands, for purposes of this theory, the husband constituted
the “one person,” which meant that the wife could not testify against the husband.4 At English
common law there are different lines of authority evidencing the existence of a privilege against
spouse-incrimination.

A. Bankruptcy Examinations:

The first English case to establish a clear common law rule in relation to spousal testimony
involved a bankruptcy examination. In an anonymous case, decided in 1613, the issue arose as to
whether a bankrupt’s wife could be forced to undergo an examination.5 The Court ruled that she
could not, reasoning that “the wife is not bound in case of high treason to discover her husband’s
treason, although the son be bound to reveal it; therefore by common law she shall not be
2
Michael W. Mullane, Trammel v. United States: Bad History, Bad Policy, and Bad Law, 47 ME. L. REV. 105,
128 (1995)
3
W.S. Holdsworth, Notes, 56 LAW Q. REV. 137, 138 (1940).
4
Supra at 2
5
David Lusty, Is There a Common Law Privilege Against Spouse-Incrimination?, University of New South Wales
Law Journal (2004) 27

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examined”6 In 1623, Parliament sought to reverse the rule established in the Anonymous case by
granting a new power to ‘examine upon oath the wife … of … every such bankrupt, for the
finding out and discovery of the estate’. However, in 1719, Lord Parker LC held that the wife of
a bankrupt could still refuse to be examined about her husband’s ‘acts of bankruptcy’.7 These
early bankruptcy authorities provide strong support, either directly or by way of analogy, for the
recognition of a common law privilege against spouse incrimination.

B. Criminal Committals and Trials:

In criminal proceedings, witnesses could not generally be compelled to testify until the
enactment of the Marian Committal Statute in 1555. This Act authorised Justices of the Peace to
conduct preliminary examinations of accused persons and witnesses, commit the accused to trial
and bind the witnesses to testify at trial.8 Michael Dalton’s The Countrey Justice was the first to
describe the common law rules relating to spousal testimony.9 He observed that the Marian
Committal Statute empowered justices to examine any person ‘that can inform any material
thing’ and ‘bind them to give evidence against the prisoner’. However, he identified the
following qualification: “And yet the wife is not to be bound to give evidence, nor be examined
against her husband; for by the laws of God, and of this land, she ought not to discover his
counsel, or his offence in case of Theft.” Dalton did not identify any restrictions on the ability of
wives to testify for their husbands, he only seems to have opined that they were not bound to do
so. However, this state of the law underwent a major augmentation in 1628 when Lord Coke
declared that ‘a wife cannot be produced either against or for her husband’, thereby asserting an
absolute rule of spousal incompetency. Lord Coke’s rule of spousal incompetency, originally
confined to wives, was quickly adopted by the courts and soon applied equally to husbands.10

C. Collateral Cases:

On three occasions between 1788 and 1831 the Court of the King’s Bench was called upon to
define the common law rules relating to adverse spousal testimony in collateral cases. The first

6
Anonymous (1613) Brownl 47, 47
7
Ex parte James (1719) 1 P & Wms 610, 611
8
John H Langbein, Prosecuting Crime in the Renaissance: England, Germany, France (1974)
9
Michael Dalton, The Countrey Justice (1st ed, 1618)
10
Mary Grigg’s Case (1672) T Raym 1

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case was R v Inhabitants of Cliviger.11 The husband testified that he was married to the pauper
and denied any marriage to the first wife. The defendant then proposed to call the first wife to
prove her marriage to the husband, but the prosecution claimed that she was incompetent. The
trial judge refused to admit her and this decision was affirmed by the King’s Bench, with
Ashhurst J stating: “the ground of her incompetency arises from a principle of public policy,
which does not permit husband and wife to give evidence that may even tend to criminate each
other. The objection is not confined merely to cases where the husband or wife is directly
accused of any crime; but even in collateral cases, if their evidence tends that way, it shall not be
admitted.”

The second case was R v Inhabitants of All Saints, Worcester.12 The defendant proposed to call
the first wife to prove that she married him prior to him marrying the pauper. The prosecution,
relying on Cliviger, argued that she was incompetent. The judges decided the case by
emphasising that the wife ‘did not refuse to be examined’ and by declining to strictly follow
Cliviger. They held that a wife was only incompetent to incriminate her husband in proceedings
brought directly against him but that this rule did not extend to collateral cases. In 1831, these
views were confirmed in the third King’s Bench case, R v Inhabitants of Bathwick.13 Here, the
King’s Bench chose to follow All Saints ahead of Cliviger and held that the wife was competent
to incriminate her husband.

2.2 LEGISLATIVE CHANGES

The Evidence Act, 1843 codified the law of evidence in England. It preserved the incompetence
of spouses as witnesses in matters in which the other spouse was a party. However, there was
much dissatisfaction and criticism of the laws relating to the competence and compellability of
spouses. The Commission on Common Law submitted its report in 1853 which sought to balance
“the alarm and unhappiness” caused by the public disclosure of confidential communications
between spouses. This led to the Evidence Amendment Act, 1853, whereby spouses were made
competent and compellable witnesses against each other, except in criminal cases and adultery,14

11
(1788) 2 TR 263
12
(1817) 6 M & S 194
13
(1831) 2 B & Ad 637
14
Evidence (Amendment) Act, 1853, S1

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but matrimonial communications specifically were made privileged.15 The privilege was that of
the spouse testifying, i.e., he or she could not be compelled to disclose matrimonial
communications. Greene, LJ, in Shenton v. Tyler 16 denied the existence of the common law rule
that marital communications as such were protected from disclosure. He held that the protection
to matrimonial communications was found only in section 3 of the Evidence Amendment Act,
1853, which did not extend such protection to matrimonial communications once the marriage
had ceased to exist. Subsequently, the Criminal Evidence Act of 1898 conferred competency, as
a witness, on the spouse of the party charged in criminal proceedings and at the same time
retained the privilege on matrimonial communications.17 Hence, if a spouse wished to testify as
to matrimonial communications against the other spouse, he/she would be free to do so, but
could not be compelled to testify by the prosecution, in case he or she was unwilling to do so.

The Police and Criminal Evidence Act, 1984 made a host of changes. According to Section 80, a
spouse is a competent witness against the other spouse during the subsistence of their marriage
and also after divorce. In the latter case i.e. after divorce- the spouse is both a competent and
compellable witness against the accused.18 So the court can compel a former spouse to appear as
witness in proceedings in which the other former-spouse is charged just like any other ordinary
witness. This enactment clearly deviates from the earlier law where the matrimonial privilege
applied. To preserve matrimonial harmony, the spouse cannot still be compelled to give
testimony against the other spouse. There are a few exceptions to this rule prohibiting
compulsion, such as cases of assault or injury to the spouse giving testimony or of assault or
injury to a person below the age of 16, or sexual offences or abetment or attempt or conspiracy
to commit any of the these offences.19 Section 80 provides no exclusion to matters that occurred
during marriage. This is different from the Indian position where the spouse may testify as to
communications made before or after marriage by the other spouse, but not as to
communications made during marriage.

15
Evidence (Amendment Act), 1853, S3: “No husband shall be compellable to disclose any communication made to
him by his wife during the marriage, and no wife shall be compellable to disclose any communication made to her
by her husband during the marriage.”
16
[1939] 1 All E.R 827
17
Criminal Evidence Act, 1898, S 1(d): "Nothing in this Act shall make a husband compellable to disclose any
communications made to him by his wife during the marriage and no wife shall be compellable to disclose any
communication made to her by her husband during the marriage.”
18
Police and Criminal Evidence Act, 1984, Section 80(5)
19
Police and Criminal Evidence Act,1984, Section 80(3)

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 3. THE INDIAN LAW

Section 120 of the Indian Evidence Act, 1872 enables the wife or husband to be a competent
witness in civil as well as in criminal proceedings. But Section 122 deals with the privilege
affecting compellability from disclosure of all communications between wife and husband
during the subsistence of a marriage, except in some cases between them for example proving
non-access. It states that:

Communications during marriage- 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.

This section rests on the obvious ground that the admission of such testimony would have a
powerful tendency to disturb the peace of families to promote domestic broils, and to weaken, if
not to destroy, that feeling of mutual confidence which is the most endearing solace of married
life. The protection is not confined to cases where the communication sought to be given in
evidence is of a strictly confidential character, but the seal of the law is placed upon all
communications of whatever nature which pass between husband and wife. It extends also to
cases in which the interests of strangers are solely involved, as well as to those in which the
husband or wife is party on the record. It is, however, limited of such matters as have been
communicated ‘during the marriage’.20 This section limits the rule enunciated in Section 120.

ELEMENTS:

Under this section a married person shall not be:

(1) Compelled to disclose any communication made to him during marriage by any person to
whom he is married; and

(2) Permitted to disclose any such communication.

20
Emperor v. Ram Chandra, (1932) 35 Bom LR 174

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There are three exceptions when such matrimonial communications are admissible as evidence.
Firstly, when the spouse who made the communication or his representative- in-interest consents
to such disclosure. If the spouse is dead and there is no representative in interest, then such
communication becomes totally inadmissible, because no consent may be obtained for such
disclosure. The second and third exceptions relate to situations where the harmony in the
marriage has already disintegrated. Since no purpose would be served by excluding matrimonial
communications anymore, these exceptions have been carved out to make all relevant evidence
available to the court and serve the ends of justice. The second exception arises when the two
spouses are involved in a suit against each other and refers to all legal proceedings between the
spouses. The third exception arises when one spouse is being prosecuted for a crime committed
against the other. Prosecution for bigamy would also fall within this exception.21

4. SCOPE OF THE PROVISION

The protection afforded by Section 122 is greater than that conferred by the English Law,
because in India, the witness is not permitted to disclose communications, so that the person
making it, as well as the witness to whom it is made, is protected, But in England only; the
witness is protected. The prohibition under this 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.

4.1 ‘SHALL NOT BE PERMITTED’

Even if one of the spouses is willing to disclose a communication, he or she will not be permitted
to disclose it unless the person who made it or his representative in interest consents, except in
suits or prosecutions between married persons. The other spouse cannot waive it at his or her
will. The consent cannot be implied. It is incumbent upon the Court to ask the party against
whom the evidence is to be given. In M.G Verghese v. T.J. Ponnan,22 Rathi, daughter of
Verghese, was married to Ponnan. Ponnan wrote letters to which allegedly contained defamatory
imputations concerning Verghese. Verghese then filed a complaint charging him with offence of
defamation. Ponnan contended that that the letters which formed the sole basis of the complaint

21
Ratanlal & Dhirajlal, The Law of Evidence, Lexis Nexis (24th ed, 2011)
22
AIR 1970 SC 1876

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were inadmissible in evidence as they were barred by law from disclosure under Section 122.
The Supreme Court accepting his contention and holding the letters to be inadmissible observed
that the “communication between the spouses during the marriage cannot be deposed or
disclosed to by the spouse without the consent of the other who made the communication.”

The prohibition also applies where one of the parties is dead or when there has been divorce. The
question in the case of Nawab Howladar v. Emperor23 was there being no one whose consent
could be obtained, the statements are admissible, if the widow is a willing witness, without
consent. The Calcutta HC held such communication by a widow inadmissible as she is not the
dead persons ‘representative in interest’ for the purpose of giving such consent.

4.2 ‘DURING MARRIAGE’

The protection conferred by the section is limited to such matters as have been communicated
during marriage. A communication made to a woman before marriage would not be protected.
But the privilege continues even after the marriage has been dissolved by death or divorce.

In M.G Verghese v. T.J. Ponnan it was clarified that: “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.”

In S.J Choudhary v. State,24 when a communication was between the accused and his wife after
the wife obtained a divorce decree, it was held that the marriage cannot be treated as subsisting
after the divorce decree and hence the communication was not made during marriage so as to
come within the protection under Section 122.

The provisions of this section do not apply to communications to a mistress. In Shankar v. State
Of T.N,25 it was held that the woman in question is only a mistress and not a legally wedded wife
and “Section 122 does not in any manner come in the way of evidence by a mistress.”

23
(1913) ILR 40 Cal 891
24
1985 Cr LJ 622 (Del)
25
1994 Cr LJ 3071

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4.3 ‘COMMUNICATION’ & NOT ‘ACTS’

The ban of the section is confined to communications only. This obviates the difficulties
experienced by English law in this respect. In R v. Ritt,26 the accused was charged with two
counts of assault occasioning actual bodily harm on his 8 months’ old daughter. The wife
implicated her husband. It was not disputed that the accused was left at home with the baby and
that the baby suffered injuries. Even so the Court held that the Wife was not a compellable
witness. She could choose to marriage by refusing to testify.

A wife can testify to the deeds of her husband of which she was the eye-witness. This is so
because Section 120 declares her to be a competent witness against her husband. In Ram
Bharose vs. State of U.P, 27 the Supreme Court observed “The statements of the accused to his
wife that he would give her jewels and he had gone to the house of the deceased to get them are
inadmissible under Section 122. But the wife’s statement that the accused was seen in the early
hours, while it was dark, coming down the roof of his house and that he went to the Bhusa Kothri
and came out again and had a bath and put on the dhoti again is not inadmissible under Section
122 as it has reference to acts and conducts of the accused and not to any communication by him
to his wife.” Further in Nagaraj vs. State of Karnataka,28 the Court held that: “The privilege
under Section 122 of the Evidence Act extends to all communications made to a spouse during
subsistence of marriage by the other spouse. Such communications need not be confidential and
applies 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 will nor can the Court
permit disclosure even if he or she is willing to do. The protection extends only to
communication that is utterances and not acts.”

Moreover, the section speaks of ‘any communication’ and so the privilege extends to all
communication of whatever nature passing between married persons and is not confined to
communication of a confidential character. The words “any communication” are wide enough to
embrace communications of every nature including ordinary conversations relating to business
affairs which are not of a private or confidential character.

26
(1982) 3 All E.R 63
27
AIR 1954 SC 704
28
1996 Cr LJ 2901

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4.4 EXCEPTIONS

The prohibition does not exist in any suit between married persons and other litigations between
them. It does not also apply in proceeding in which one married person is prosecuted for any
crime against the other, viz offences against person, assault, bodily injury, wrongful confinement
or any other form of offence by one of the spouse against the other. The gist of this exception is
that it must be a crime committed by one married person against the other for the bar to not
apply. In Narendra v. S an unlicensed pistol in the possession of husband or wife does not
involve any crime committed by one against the other and so the exception does not apply and
neither of them can be compelled to disclose any communication between them on the subject.

5. THE EAVESDROPPER RULE

In India, the privilege extends to all communications between husband and wife while they are
alone or in the presence of children of tender years and also to communications which have been
overheard by others.

But under the English and American rule third persons are allowed to give evidence of
communications between married persons made in their presence or overheard by them. In both
these jurisdictions, the presumption that all communications between spouses are intended to be
confidential may be rebutted by a showing that the subject matter of the communication or the
circumstances surrounding it indicate that the communication was not intended to remain
confidential. The presence of third persons at the time of the communication will rebut the
presumption of confidentiality. If the communicating spouse was aware of the third party, the
privilege fails entirely.29

In Rumping v. Director of Public Prosecutions30it was observed that such communications

could be proved by some other form of testimony as that of a witness who had overheard their
confidence or by the production of a letter which contained the confidence, but had passed into
other hands. William Markby says that the protection in India is greater than that conferred by

29
Anne N. Deprez, Pillow Talk, Grimgribbers and Connubial Bliss: The Marital Communication Privilege, Indiana
Law Journal 56 (1980)
30
1962 All E.R 256

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the English law, because here the witness is not permitted to disclose the communication. In
England the witness only is protected. The law does not however appear to be otherwise in India
and there is no reason why communications made in the presence or overheard by third persons
should be protected from disclosure by those persons.

6. CONCLUSION

Section 122 though intended to preserve matrimonial harmony, cannot be truly said to have
justified this rationale. Matrimonial harmony can never be said to justify the prohibition of
voluntary testimony s to matrimonial communications by one spouse against the other. If the
marriage had reached a stage where a spouse would voluntarily give evidence against the other,
then it presumably shows that there is no matrimonial harmony left to preserve. Further, there is
no justification for extending the privilege beyond the subsistence of marriage. In that sense,
Section 122 does more to hinder justice than save the institution of marriage. The provision
though has a valid reason to exist needs to be suitably modified so as to strike a better balance
between reaching the ends of justice and preventing marital discord.

BIBLIOGRAPHY

 Ratanlal & Dhirajlal, The Law of Evidence

 C.J. M. Monir, Law of Evidence

 Sarkar, Law of Evidence

 V. Nageswar Rao, The Indian Evidence Act

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