Vibhor Garg V. Neha (2025 SC)
Part 1: Summary of law u/s.122 IEA-
- Unlike S.120 IEA, which deals with competency of a husband or a wife to be a witness in a civil or criminal proceeding involving the other, S.122 deals with the admissibility of privileged communications made by a married person to a partner during the subsistence of the marriage.
- S.122 is worded in two parts – one, dealing with ‘compellability’ and the other, dealing with ‘permissibility’. These two parts are separated by a semi-colon, which shows that the two parts are separate and have to be read disjunctively.
- The first part deals with ‘compellability’. Here, if one of the spouses is not willing to disclose the communication made to the other, the latter cannot be compelled by any court, authority or person, which by law is otherwise competent to compel the person to give evidence, to disclose what their married partner communicated to the said spouse during the time when the marriage was subsisting. This is a blanket bar which cannot be relaxed in any situation. This protects the right to privacy between a married couple.
- The second part deals with ‘permissibility’. This is an even greater restriction than the first part. Here, even if one of the spouses is willing to disclose the communication made to him/her, the Court still cannot permit it to be taken as evidence, unless the other spouse who made that communication, or their representative-in-interest, consents to the disclosure of such communication. In other words, without the consent of the spouse who made the communication, the court cannot permit the other spouse to disclose that communication. Another way of looking at it is that if one of the spouses is willing to disclose the communication, then it is not the court that can give consent to the disclosure but it is actually the other spouse who made that communication who can consent to disclosing it.
- The second part, relating to ‘permissibility’, is then followed by two exceptions which are -(a) proceedings in suits between married persons, (b) proceedings in which one married person is prosecuted for any crime committed against each other. Therefore, it means that in these two given scenarios, the requirement of taking consent from the other spouse before being permitted to disclose the communication is done away with.
- The provision is neither an absolute bar on any person nor on the communication. It puts a specific and limited bar on a married person from disclosing the communication made to him/her by his/her spouse during the subsistence of a marriage between them.
- If the marriage was subsisting at the time when the communications were made, the bar prescribed by S.122 will operate. 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 light of the status on the date of communication and not the status at the date when evidence is sought to be given in court.
- The provision applies vis-à-vis a legally wedded wife and not to any other kind of relationship.
- The prohibition of disclosure u/s.122 applies even after the marriage is no longer subsisting, if the “communication”, whose disclosure is sought to be prohibited, is only the one that was made during the subsistence of the marriage.
- The bar from disclosure u/s.122 applies to the spouse to whom the communication was made and not to the spouse who made the communication. For example, if X and Y are married, then X cannot disclose what Y told to her and Y cannot disclose what X told to him. But X can disclose what she told to Y and Y can disclose what he told to X.
- Hence, u/s.122, it is only the spouses who are barred from disclosing what was said to them by the other spouse. The bar is not on other persons like the family members, kith and kin or third-parties who may have heard or overheard that communication.
- The bar does not also apply to the communication made to a third party even if the same communication was made to that third party which was made to the spouse. For example, X tells something to spouse Y. X tells the same thing to friend Z. Then Y is barred under this section to disclose that communication, but not Z.
- The use of the blanket word “any communication” means that the bar in the Section applies to disclosing all kinds of communication and not just private/confidential communication. The communication may also be oral or written or sign language.
- However, the use of the word “communication”, followed by the phrase “made to him”, denotes that the communication here should not be read as ‘conversation’ or a ‘dialogue’. When communication is made to a person, it would mean that a message or information has been conveyed by one person to the other. This can be understood by an illustration. Suppose in a trial for the murder of a person ‘Z’, the husband ‘Y’ is being tried as an accused. The wife ‘X’ comes to the witness box to depose about the conversation that happened between X and Y on the day of the crime. X deposes as under: “On that night, when my husband Y came back home, his clothes were drenched in blood. I was scared to see that. I asked Y, “What happened? Whose blood is this? Did you kill someone?” ~Y replied back in anger and said, “Z had been troubling me for a long time, so today I killed him.”~ Shocked to hear this, I further asked “Where is the body? What did you kill him with?” ~Y replied in a whispering tone and said, “I killed him using a knife and buried him in the park”.~ Now, in the above deposition, the part in plain italics was what the wife herself thought or experienced. That part is not barred by S.122. Further, the part in bold was what the wife told to the husband. That part is also not barred by S.122. But the part ~strikenthrough~ was the communication that was made by the husband to the wife. Therefore, u/s.122, the wife is barred from disclosing the said communication without the consent of the husband, and the Court cannot permit the wife to disclose that communication and that part of the deposition would not form part of the record. The Court will have to delete that part from the deposition.
- The bar in the Section is with respect to “disclosure” of ‘communication’ by the ‘spouse’, and not to that “communication” per se. The spouse cannot be compelled or permitted to get into the witness box and disclose the communication, but that communication may be brought before the court through any other means. The bar u/s.122 does not mean that no other evidence can be given for that communication which is not barred u/s.122 or other provisions of the Evidence Act. For example, husband ‘Y’ wrote a letter to wife ‘X’, telling her that he has committed a murder. Now as per S.122 of the said act, the wife ‘X’ is barred from disclosing this communication. But if during investigation of the crime, the police find these letters and bring them before the Court in evidence then the bar of S.122 of the said Act will not be attracted.
- The bar u/s.122 is limited to disclosing of communications made to that spouse but is not attracted for the acts that were seen by the spouse or experienced by the spouse. For example, when husband ‘Y’ comes to wife ‘X’ and tells her that “I killed Z”, then X is barred from disclosing this communication. But X is not barred from disclosing if she secretly saw Y killing Z.
SC relied upon the following judgments-
- M.C. Verghese V. T.J. Ponnan (1969 SC),
- Ram Bharosey V. State of UP (1954 SC),
- Appu @Ayyanar Padayachi V. State (1971 Mad),
- Nawab Howladar V. Emperor (1913 Cal),
- Shankar V. State of T.N. (1994 SC).