Section 120 Evidence Act: Competency of Parties and Spouses as Witnesses
Section 120 of the Indian Evidence Act, 1872 recognised parties to civil proceedings and their spouses as competent witnesses, and also recognised the spouse of a person facing criminal proceedings as a competent witness. The corresponding provision under the Bharatiya Sakshya Adhiniyam, 2023 is Section 126.
Section 120 of the Indian Evidence Act, 1872 - Statutory Text
In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness.
Section 126 of the Bharatiya Sakshya Adhiniyam, 2023
Section 126, titled Parties to civil suit, and their wives or husbands. Husband or wife of person under criminal trial, continues the rule that a party to a civil case, or that party's spouse, is not disqualified from testifying merely because of that relationship. In criminal proceedings, the accused person's spouse is likewise competent to testify.
Competent witness means a person legally eligible to give evidence. Competency does not automatically mean the person can be compelled to answer every question, that all communications are admissible, or that the testimony must be believed.
Who can testify in civil proceedings?
Both parties to a civil dispute and their husbands or wives can give evidence. For example, in a property or money recovery suit, a litigant may testify about transactions personally witnessed, and the litigant's spouse may also testify about relevant facts within their knowledge. The court assesses the evidence under the ordinary rules of relevance, examination and credibility.
Can the spouse of an accused person testify?
Yes. The spouse of a person facing criminal proceedings is a competent witness under the statutory rule. However, the question whether particular testimony can be compelled or particular marital communications can be disclosed is distinct from basic competency.
Competency versus marital communication privilege
Section 128 of the Bharatiya Sakshya Adhiniyam, 2023 (corresponding to Section 122 of the Indian Evidence Act, 1872) deals with communications during marriage. Subject to its statutory exceptions, a person who is or has been married cannot be compelled to disclose communications made during marriage by their spouse, nor permitted to disclose them without the required consent. This privilege must be considered separately from Section 126.
Other rules governing witnesses
- General competency: Section 124 of the Bharatiya Sakshya Adhiniyam (formerly Section 118 of the Indian Evidence Act) sets out the general test for who may testify.
- Non-verbal communication: Section 125 of the Bharatiya Sakshya Adhiniyam (formerly Section 119) provides for witnesses unable to communicate verbally.
- Constitutional protection: Article 20(3) of the Constitution protects an accused person against being compelled to be a witness against themselves. This is different from the competency of a spouse.
Practical illustrations
Example 1: Civil suit
A wife sues to recover a loan. Her husband, who witnessed the payment, may be a competent witness, subject to the usual evidentiary rules.
Example 2: Criminal trial
A husband is prosecuted for an offence. His wife is not automatically disqualified from testifying because of the marriage. Any applicable privilege concerning marital communications must still be examined.
Which law applies after 1 July 2024?
The Bharatiya Sakshya Adhiniyam governs proceedings to which it applies following its commencement. Section 170 contains repeal and savings provisions for specified proceedings pending immediately before commencement; the applicable procedural position depends on the facts and timing of the case.
Official legal sources
Consult the India Code official legislation portal for the authoritative text of the Bharatiya Sakshya Adhiniyam, 2023 and the Indian Evidence Act, 1872. The Gazette of India publishes commencement notifications and other official legal instruments. The Constitution of India is also available through the Legislative Department.
Frequently asked questions
Are spouses allowed to give evidence in a civil suit?
Yes. The parties and their spouses are competent witnesses under Section 126 of the Bharatiya Sakshya Adhiniyam.
Does marriage make a person incompetent to testify in a criminal case?
No. A spouse is competent to testify, but rules about protected marital communications and other legal safeguards may apply.
What replaced Section 120 of the Indian Evidence Act?
Section 126 of the Bharatiya Sakshya Adhiniyam, 2023 is the corresponding provision.
This article provides general legal information and is not a substitute for advice on a particular proceeding.