Privileged Communication is an exchange of information between two
individuals in a confidential relationship. A privileged communication is
a private statement that must be kept in confidence by the recipient for
the benefit of the communicator. Even if it is relevant to a case, a
privileged communication cannot be used as evidence in court barring
certain exceptions. Generally, the laws that guide civil and criminal
trials are designed to allow the admission of relevant evidence. Parties
generally have access to all information that will help yield a just
result in the case; however privileged communications are an exception to
Privileged communications exist because society values the privacy or purpose of certain relationships. The established privileged communications are those between wife and husband, clergy and communicant, psychotherapist and patient, physician and patient, and attorney and client. The reason for which these relationships are protected is to protect the general sanctity of marriage and religion.
However in cases where the sanctity is abused by the perpetrators themselves, leading to a misbalance in the social equilibrium, the state snatches the power of privacy and privilege. The article discusses section 122 of the Indian Evidence Act and stresses on the exceptional cases when the privilege is barred between the spouses with a special reference to the Protection of Women Against Domestic Violence Act, 2005
Marital Communications Privilege and its originThe right given to a husband and wife to refuse to testify in a trial as to confidential statements made to each other within and during the framework of their spousal relationship is termed as a right of marital communications privilege1. It is a right that only legally married persons has. It protects the privacy of communications between spouses by allowing them to refuse to testify about a conversation or a letter that they have privately exchanged as marital partners.
The marital privilege is an exception to the general rule that all relevant evidence is admissible at trial. Privileges exclude evidence from trial in order to advance some social goal. With the marital privilege, the goal of free and open communication between spouses, which is believed to strengthen and act in furthering the marital relationship, is given greater weight than the need for evidence (the information exchanged by the spouses) to resolve a legal dispute.
The marital communications privilege originated at common law. It was made formal in the English Evidence Amendment Act of 1853, which said that neither husbands nor wives could be forced to disclose any communication made to the other during the marriage. In the United States, the privilege came to be recognized in state and federal rules of evidence. By the twentieth century, the U.S. Supreme Court said:
that it is regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice"2
The marital communications privilege is available in most jurisdictions. Most jurisdictions offering it, allows a witness spouse to choose whether to testify; some automatically disqualify evidence from a spouse. As a result, the spousal privilege, in the United States of America, is comprised of two separate privileges, the marital confidences privilege and the spousal testimonial privilege.
The Marital Confidences PrivilegeThe marital confidences privilege is a form of privilege communication protecting the contents of confidential communications between husband and wife. This privilege applies in civil and criminal cases. When applied, a court may not force one spouse to testify against the other concerning confidential communications made during marriage.
The privilege generally applies only where both of the following fact situations are present:
(1) a third party was not present during the communication (the presence of a third party would destroy the confidential nature of the communication), and
(2) both parties intended that the communication be confidential.
The privilege is usually restricted to confidential communications made during marriage and does not include communications made before the marriage or after divorce. The privilege does, however, generally survive the divorce; that is, a person can be prevented from testifying about confidential communications with an ex-spouse made during the marriage. Either spouse can invoke this privilege, either refusing to testify against their spouse or preventing their spouse from testifying. Finally, courts may require that the communication relate specifically to the marriage.
The Spousal Testimonial Privilege
The spousal testimonial privilege (a.k.a. "spousal immunity") can be used to prevent any party in a criminal case from calling the defendant's spouse to testify against the defendant about any topic. Under the U.S. Federal Rules of Evidence, this privilege attaches to the witness spouse; that is, the defendant's spouse can refuse to testify against the defendant, but the defendant may not prevent his spouse from testifying against him or her.
This privilege does not survive the marriage; that is, after divorce, there is no right to refuse to testify against a defendant ex-spouse. This privilege may be restricted to testimony about events that occurred after the marriage, although in some jurisdictions it may apply to testimony about events occurring prior to the marriage (giving rise to a questionable incentive for an individual to marry a potential witness in order to prevent the potential witness from testifying against the individual).
Section 122 of Indian Evidence Act 1972Reads as under:
"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 on married person is prosecuted for any crime committed against the other."
here is thus, 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. 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 This Section
Section 122 of the Indian Evidence Act recognizes the age-old concept of marital confidence that all communications between spouses during the wedlock are sacrosanct. In England the Commission on Common Law Procedure in its second report, submitted in 1853 observed as under:
"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 beheld privileged."3
Nature of the Privilege
The privilege is not absolute. Because its effect is to deny evidence at trial, courts generally interpret it narrowly. And it 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 which pass between husband and wife 4 Section 122 provides against disclosure of a ' communication ' and not against disclosure of effect of said communication 5.
Condition To Avail Privilege
# The most important condition for its use is a legal marriage. Courts will not permit its use by partners who merely live together or by those who have a common-law marriage or a sham, or false, marriage.
# The consent has to be positive, and not that it may be imported from mere waiver.
# The presence of third persons at the time of the communication usually eliminates confidentiality and thus destroys the privilege, although courts have granted exceptions for the presence of children.
# The privilege cannot be claimed in certain situations, such as where one spouse is subject to prosecution for crimes committed against the other or against the children of the couple.
Case Laws On Section 122Nagaraj vs. State of Karnataka
The principal objection raised on behalf of the accused was that Section122 of the Indian Evidence Act hits the statement.
The principle underlying Section122 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 a criminal prosecution and in all other cases bars the disclosure of any statements made by one spouse to another during subsistence of the marriage. The privilege under Section122 of the Indian 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.
M.C. Verghese Vs. T.J. Poonan and Anr.7
Rathi, daughter of M. C. Verghese, was married to T. J. Poonan. Poonan wrote from Bombay, letters to Rathi who was then residing with her parents at Trivandrum, which as it was claimed contained defamatory imputations concerning Verghese. Verghese then filed a complaint in the Court of the District Magistrate, Trivandrum, against Poonan charging him with offence of defamation. Poonan submitted an application raising two preliminary contentions –
(1) that the letters which formed the sole basis of the complaint were inadmissible in evidence as they were barred by law or expressly prohibited by law from disclosure; and
(2) that uttering of a libel by husband to his wife was not "publication" under the law of India and hence cannot support a charge for defamation, and prayed for an order of discharge, and applied that he may be discharged.
In England the rule there is a well-settled law that except in certain well-defined matters, the husband and wife are regarded as one and in an action for libel, disclosure by the husband of the libel to his wife is not publication.8 But the rule that husband and wife are one in the eye of law has not been adopted in its full force under our system of law and certainly not in our criminal jurisprudence.9
In this case hence, Poonan’s contention that the letters addressed by him to his wife are not except with his consent-admissible in evidence by virtue of Section 122 of the Indian Evidence Act, and since the only publication pleaded is publication to his wife, and she is prohibited by law from disclosing those letters, no offence of defamation could be made out were accepted.
The communication must have been made during the continuance of the marriageThe bar to the admissibility in evidence of the communications made during 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 court10.
Only communication are protected from disclosure but not the act or conductBhalchandra Namdeo Shinde Vs. The State of Maharashtra11
The statement of witness Jaishree, who happens to be the wife of appellant accused, revealed in the investigation that deceased Mahesh visited the house of accused on 5.6.1996 in the noon time and after having taken tea, left the house and proceeded towards S.T. bus stand. That time, appellant was present in the house. It was further transpired in the investigation that the appellant was searching for weapon and on being questioned by his wife Jaishree; he disclosed that he wanted to kill Mahesh Jadhav as he suspected the character of his wife.
The appellant collected a Kookari Article 12 and was about to leave the house. On being questioned, he retorted and said to Jaishree PW 1 that by Kookari (Article 12), he wanted to kill Mahesh Jadhav and saying so, he left the house on motorbike. The dead body of Mahesh Jadhav was found in the field on 6.6.1996. The appellant accused did not return to his home on the night of 5.6.1996.
The part of dialogue between the appellant accused and his wife Jaishree on the point of preparation of crime was held to be inadmissible in evidence. However, what Jaishree actually witnessed can very well be taken into consideration because what is witnessed by Jaishree is not a communication.12
Ø A communication is not confidential and therefore not privileged, if it is overheard by a third party who is not an agent of the listener. Agents include any person other than wife or husband.
In Queen Empress vs. Donoghue13 a letter written by the husband to his wife was seized during he search of the house. The letter was held to be admissible although it was seized in the presence of wife for there was nothing that she had done to put the letter into the hands of the authority.
The Privilege Does Not End After The Termination Of MarriageIn M.C. Verghese v. T J. Ponnam it was said that if the marriage was subsisting at the time when the communications were made, the bar prescribed by Section 122 will operate. In Moss v. Moss 15 it was held that in criminal cases, subject to certain common law and statutory exceptions, a spouse is incompetent to give evidence against the other, and that incompetence continues after a decree absolute for divorce or a decree of nullity (where the marriage was annulled was merely voidable) in respect of matters arising during cover time.
When Disclosure Is Permissible-a special reference to Domestic Violence ActThe exception section 122 clearly states that the privilege cannot be claimed in certain situations, such as where one spouse is subject to prosecution for crimes committed against the other or against the children of the couple. This was in furtherance of upholding the principle of public interest and maintaining the sanctity of social institutions in the society. The idea behind such a concept is that state would intervene in the bedrooms of its citizens if it believes that privacy is being replaced by abuse and exploitation.
In Fatima v. Emperor16 Mrs. Fatima was convicted of murder of her stepson. The session court had admitted the evidence of her confession to her husband on the ground that the alleged murder was Abdullah’s (her husband) son and therefore an offence was committed against him.
A similar objective led to the enactment of the Protection of Women Against Domestic Violence Act, 2005 which aims to provide quick relief to all those women who endure physical abuse. Legally also it would give them their due and rights. To some extent it will put an end to the atrocities the woman/wife/live-in partner suffers at the hands of a violent man. It will safeguard and benefit marriages and relationships from violent domestic abuse17
The new act contains five chapters and 37 sections with an objective to expand the definition of domestic violence, wide enough to encompass every possibility as it covers all forms of physical, sexual, verbal, emotional and economic abuse that can harm, cause injury to, endanger the health, safety, life, limb or well-being, either mental or physical of the aggrieved person.18 And finally bring it within the purview of a hardcore offence. Primarily meant to provide protection to the wife or female live-in partner from violence at the hands of the husband or male live-in partner or his relatives, chapter - V S. 32 (2) goes even further and says that under the sole testimony of the aggrieved person, the court may conclude that an offence has been committed by the accused.
The Indian Evidence Act which applies to both civil and criminal law, finds its application to the Domestic Violence Act also and since it discusses about a matrimonial offence, the protection of privilege under section 122 would not be applicable in such cases of matrimonial offences against the husband.
The article is an analysis of the privilege granted to spouses with regard to their matrimonial communication. The idea being protecting and respecting the privacy of the citizens with regard to their social institutions and the manner in which they decide to run it. However, an important consideration is the role of state as the guardian, the saviour that aspires to maintain the stability in the society. Hence, though section 122 of the Indian Evidence Act protects a spouse from disclosing the communication between them in public and making use of it as evidence in a court of law. It also provides an exception, which bars such privilege in cases where the spouse himself/herself is perpetrator of crime against the other spouse. The adjective nature of the IEA makes it important enough to find its application in the newly legislated Domestic Violence Act, 2005 with an aim to cover every kind of domestic violence within its purview. Such an increased application maintains the effectively of decades old legislation and makes it competent enough to be still relevant in the present context.
Wolfle v. United States 291 U.S. 7, 54 S. Ct. 279, 78 L. Ed. 617 ).
3. Pringle v. Pringle pg, 281, 288,
4. Nawab Howladar v. Emperor
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.
5 Emperor v. Ramchandra Shankarshet Uravane
6 1996 Cri LJ 2901, ILR 1996 KAR 2
7 AIR 1970 SC 1876
8 Wennhak's case ((1888) 20 QBD 635)
9 Queen Empress v. Butchi
there is no presumption of law that the wife and husband constitute one person in India for the purpose of the criminal law. If the wife, removing the husband's property from his house, does so with dishonest intention, she is guilty of theft.
10 M.C. Verghese v. T J. Ponnam (MANU/SC/0054/1968)
11 2003(2) MhLJ 580
12 Ram Bharosey v. State of Uttar Pradesh AIR 1954 SC 704
13 1899 ILR 22 Mag.1.
15 (1963) 2 QBD 829
16 AIR1914 Lah.380
17 According to the United Nations Development Programme, nearly 70 per cent married women in the age group of 15 to 49 years in India face "rape, beating and verbal abuse". Under the new Act, the men booked under the law would face a minimum one-year jail term or a fine of Rs 20,000 (ch-V section 31). However, he could be booked under different sections of CrPC for different acts of violence
18 Chapter-2 section 3 of Protection of Women Against Domestic Violence Act, 2005
19 THE LAW OF EVIDENCE DR. AVATAR SINGH 15TH edition pg 478
22 Chapter-2 section 3 of Protection of Women Against Domestic Violence Act, 2005
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