Spousal Privilege in Indian Evidence Act, 1872

24 January, 2024

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Privileged Communication is defined as “A defamatory communication that does not expose the party making it to the liability that would follow from it if not privileged,” as per the Merriam-Webster Dictionary. Simply put, it is a kind of communication between two or more individuals who are in a legally recognized relationship. To protect the sanity of the relationship, they are not bound to disclose the details of the communication to any third person/party. Privileged communication is a kind of information that cannot be used as evidence in a court of law barring certain exceptions. The existence of privileged communication is because society values the privacy of certain relationships. Moreover, it ensures that every person can communicate honestly and freely with certain trusted professionals, advisors, and individuals without worrying about legal repercussions.

In India, the Indian Evidence Act, 1872, is the primary legislation governing the evidence rules. There are various privileges recognized within its provisions for protecting confidential relationships such as spousal privilege (communication between husband and wife), State privilege (unpublished records of state affairs), Professional privilege (communication between advocate and client), and others. These privileges are covered under Sections 122-129 of the Indian Evidence Act. In this article, spousal privilege in the Indian Evidence Act is discussed, followed by important Supreme Court decisions in matters related to spousal communication.

What is Spousal Privilege?

Spousal Privilege is an important legal concept that protects the privacy of communications between husband and wife by allowing them to refuse to testify against their spouse or disclose any communication they have privately exchanged as a married couple. This right is given only to legally married persons and is also known as marital privilege or husband-wife privilege. Under the Indian Evidence Act, 1872, this privilege is defined in Section 122, ‘Communication during marriage’. It states that “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.” Now, the question arises ‘When can spousal privilege be invoked?’ Let us determine an important condition to be satisfied for invoking spousal privilege.

When can spousal privilege be invoked?

The spousal privilege can only be invoked if a condition, ‘the communication must have been made during the continuance of the marriage’ is satisfied. It does not extend to communications made before or after marriage. Moreover, the Courts do not allow the use of marital privilege by those who have a false marriage or who merely live together. It means a legal marriage between two individuals is an important condition to invoke spousal privilege.

Does Spousal Privilege end after the termination of marriage?

As long as the communication between two individuals is made during the subsistence of the marriage, the spousal privilege continues to exist even after the marriage has ended. The same has been illustrated in the S.J. Chaudhary verdict delivered by the Delhi High Court where the bench observed that “It is also now well settled that if the marriage was subsisting at the time when the communications were made, the bar prescribed by Section 122 will operate even after the wife has obtained a decree for nullity of her marriage.”

When spousal privilege can be disclosed

While spousal privilege is a significant legal protection, it is not absolute and is subject to certain exceptions. Following are the conditions that allow an individual to disclose the information between spouses as per Section 122 of the Indian Evidence Act:

The person who made it or his representative in interest permits disclosure of such communication.
In case there is a suit between married persons.
Proceedings in which one married person is prosecuted for any crime committed against the other.

Related Case Laws

Ram Bharosey vs. State of U.P. (February 25, 1954): In this case, the charge against Ram Bharosey (appellant) was that he murdered his father and stepmother. There was no direct evidence that connected him with the offence. The main question addressed in this case was ‘whether the circumstantial evidence in the case is sufficient to sustain the conviction.’ In this context, the Supreme Court held that “there is the evidence of P. W. 2 (Wife of Ram Bharosey) that the accused was seen in the early hours of the 27th May 1952 while it was still dark, coming down the roof of his house, that he went to the ‘bhusha kothri’ and came out again and had a bath and put on the dhoti again. This is not inadmissible under Section 122, as it has reference to acts and conduct of the appellant and not to any communication made by him to his wife.” It also said that the presence of the blood-stain on the jewels taken along with the circumstance that Ram Bharosey was found getting down the roof of the house in the early hours and with the recovery of the blood-stained ‘gandasa’ from him is, in our opinion, sufficient to connect him with the offence of murder. The bench further confirmed his conviction under Section 302 IPC and dismissed the appeal.
M.C. Verghese vs. T.J. Ponnan (November 13, 1968): In this case, M.C. Verghese filed a defamation complaint against T.J. Ponnan (Husband of Verghese’s daughter Rathi), who wrote letters containing defamatory imputations about him. The letters were passed to the complainant (Verghese) by the wife of the Respondent (Ponnan). The matter was mentioned before the SC to examine whether a letter containing defamatory content concerning a third party (Verghese in the instant case) sent by the husband to the wife was privileged under Section 122 of the Indian Evidence Act. The bench held that “The letters are in his possession and are available for being tendered in evidence. We see no reason why an inquiry into that complaint should, on the preliminary contentions raised, be prohibited. If the complainant seeks to support his case only upon the evidence of the wife of the accused, he may be met with the bar of Section 122 of the Indian Evidence Act.”
Vishal Kaushik vs. Family Court & Another (May 26, 2015): The petitioner (Vishal Kaushik) filed a divorce petition before the Family Court alleging that the respondent-wife caused mental cruelty to him by different means, especially because of her extramarital affair. In this case, the main question answered by the SC was whether a conversation tape recorded by the husband without the wife`s consent or her knowledge, can be received in evidence and be made use of against her. The SC answered the question in an affirmative ‘no’. It added, “...as a recording of such conversation had breached her "right to privacy", one of the facets of her `right to liberty' enshrined under Article 21 of the Constitution of India.” The bench further said, “The exception to privileged communication between husband and wife carved out in Section 122 of the Indian Evidence Act, which enables one spouse to compel another to disclose any communication made to him/her during marriage by him/her, may be available to such spouse in a variety of other situations, but if such communication is a tape-recorded conversation, without the knowledge of the other spouse, it cannot be, admissible in evidence or otherwise received in evidence.”

Case related to the extended privileged communication to Live-In partners

D. Velusamy vs. D. Patchaiammal (October 21, 2010): In this case, the Supreme Court extended the scope of a privileged communication to Live-in partners and listed certain conditions to which a live-in relationship can be given the status of ‘relationship in the nature of marriage’. The conditions illustrated were “(i) The couple must hold themselves out to society as being akin to spouses, (ii) They must be of legal age to marry, (iii) They must be otherwise qualified to enter into a legal marriage, including being unmarried, and (iv) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.” It further held that “a 'relationship in the nature of marriage' under the 2005 Act must also fulfill the above requirements, and in addition, the parties must have lived together in a 'shared household' as defined in Section 2(s) of the Act. Merely spending weekends together or a one-night stand would not make it a 'domestic relationship'.”

1. When can spousal privilege be invoked?

The spousal privilege can only be invoked if a condition, ‘the communication must have been made during the continuance of the marriage’ is satisfied.