Section 122 of the Indian Evidence Act: Communications During Marriage

Section 122 of the Indian Evidence Act, 1872 protected communications made between spouses during marriage. Its corresponding provision under the Bharatiya Sakshya Adhiniyam, 2023 (BSA) is Section 128, which addresses communications during marriage.

Section 122 of the Indian Evidence Act, 1872 - statutory text

Meaning and scope of marital communications privilege

The provision protects communications made by one spouse to the other while their marriage subsisted. It generally prevents a spouse or former spouse from being compelled to disclose such communications and also restricts voluntary disclosure without the consent of the communicating spouse or that spouse's representative in interest.

The protection concerns communications during marriage, not automatically every act, event or independently observed fact. Whether particular testimony reveals a protected communication depends on its nature and the applicable exceptions.

Section 128 of the Bharatiya Sakshya Adhiniyam, 2023

Section 128, titled Communications during marriage, continues the statutory protection for communications between married persons, subject to consent and the specified exceptions. The current statutory wording should be consulted for proceedings governed by the BSA.

The distinction between competency to testify and privilege against disclosure is important. A spouse may be competent to testify, while a particular marital communication remains protected from disclosure. See also Section 120 of the former Evidence Act and its corresponding BSA provision.

When may marital communications be disclosed?

• Consent: The person who made the communication, or the representative in interest where applicable, consents to disclosure.
• Proceedings between spouses: The statutory exception applies to suits between married persons.
• Crime against a spouse: The exception applies to proceedings in which one spouse is prosecuted for a crime committed against the other.

These exceptions should be applied according to their statutory terms. The fact that a marriage has ended does not, by itself, remove protection from a communication made during the marriage.

Practical illustrations

Private communication during marriage

If one spouse privately communicates information to the other during marriage, the receiving spouse ordinarily cannot be compelled to reveal that communication in unrelated proceedings, subject to the statutory exceptions and consent.

Proceedings between spouses

Where spouses are parties to proceedings against each other, the express statutory exception may permit disclosure of otherwise protected communications.

Witnessing an event

A spouse's personal observation of an event is not necessarily a communication made by the other spouse. The court must distinguish direct observations from the contents of protected marital communications.

Application after 1 July 2024

The Indian Evidence Act, 1872 was repealed by the BSA, subject to the savings in Section 170. The applicable evidentiary regime depends in part on whether the relevant proceeding was pending immediately before commencement. Practitioners should check the savings provision and procedural history rather than assume that every case uses the same enactment.

Frequently asked questions

Does marital privilege continue after divorce?

Generally, the protection concerns communications made during marriage and is not lost merely because the marriage subsequently ends.

Can a spouse give evidence in court?

Yes. Competency to testify is a separate issue from the prohibition on disclosure of particular marital communications.

What replaced Section 122 of the Indian Evidence Act?

The corresponding provision is Section 128 of the Bharatiya Sakshya Adhiniyam, 2023.

Official legislation and further reading

This article provides general legal information. The statute and applicable judicial decisions should be consulted for a specific case.