Guest Post - The Law on Spousal Privilege in India

(This is a guest post by Khush Bhachawat)

The evidentiary rule of spousal privilege originates in Common Law, premised on the logic that compelling a husband / wife to disclose communication with their spouse during marriage undermines trust, disturbs marital harmony, and shakes conjugal confidence. However, problems arise when the law's interests in preserving marital harmony conflict with a competing public interest in imparting justice in cases where correct adjudication depends on full disclosure of all relevant evidence, including a spouse's testimony regarding matrimonial communication. 

Earlier this year, the Kerala High Court, in the case of Alli Noushad v. Rasheed & Anr. (“Alli Noushad”) highlighted this conflict and expressed concerns about the relevance and rationale behind Section 122 of the Indian Evidence Act, 1872 (“Evidence Act”), which codifies the principle of spousal privilege in India. Here, I am to take a closer look at the privilege and its problems, and possible suggestions for resolving them.  

Spousal Privilege in England 

Spousal privilege can be traced back to at least the early 17th Century. Common law required citizens to report crimes and felonies they were privy to. Failure to do so would make the person guilty as an accessory after the fact. This put a wife in an impossible situation because while she was obligated to report any crime committed by her husband, but she also had a divine duty to serve and obey her husband. Following this divine duty would require her to keep this information to herself, making an accessory after the fact. To resolve this difficulty, common law created a legal fiction by which a wife was not bound to discover her husband's crime and, therefore, was not obligated to report it. Ten years later, Edward Coke relied on the doctrine of coverture and observed that a wife could not be allowed to testify for or against her husband because married spouses ceased to be distinct legal individuals and formed a single, unified legal entity. Coke highlighted that allowing a wife to testify against her husband may cause discord and dissension in the matrimony and, therefore, asserted an absolute rule of spousal incompetency.

After various rounds of codification in England in the 19th and 20th centuries [Section 3 of the Evidence Act, 1851, (amended in 1853), Criminal Evidence Act, 1898, Civil Evidence Act, 1968, Police and Criminal Evidence Act, 1984], the privilege has been abolished for civil proceedings, and for criminal cases a court can compel spouses or civil partners to testify for the prosecution in cases involving allegations of sexual offences, assault, or injury to a spouse or a child below the age of sixteen, but not in other cases. 

Spousal Privilege in India 

Section 122 of the Evidence Act codifies the doctrine of spousal privilege in India. It says that no person who is, or has been married shall be compelled to or permitted to disclose communication made to him during marriage without the consent of their spouse. This rule does not apply to suits between the married couple or in proceedings where one spouse prosecutes the other for a crime, they committed against them. Section 122 must be read with Section 120 of the Evidence Act. 

While Section 120 confers competency on both husband and wife, they can neither be compelled nor permitted to disclose matrimonial communication as per Section 122. This shows that there is no blanket spousal testimonial privilege in India because, generally, spouses are allowed to testify. It is only ‘communication’ between spouses during the marriage, which is privileged under Section 122. 

It is settled law that the word ‘communication’ means only actual communication between the spouses and does not include acts or conduct of one spouse witnessed by the other. In Ram Bharosey v. the State of UP, a case involving conviction based on circumstantial evidence, the wife saw her husband at the place of commission of the crime. The Supreme Court held that this formed an important link in the chain of evidence and was not inadmissible under Section 122 as it had reference to acts and conduct of the husband and not to any communication made by him to his wife. Further, in MC Verghese v. TJ Ponnan (“Verghese”), the Supreme Court also observed that a spouse’s privilege under Section 122 does not mean that other evidence regarding matrimonial communication is also barred. Such communication may still be proven by means other than compelling the witness spouse to whom the communication was made. 

Section 122 deviates from the English law on spousal privilege in four main respects. While English law  limits the privilege in cases involving sexual offences, etc., no such exceptions are found in India. Further, unlike in the UK, the privilege in India extends even after the marriage is dissolved. Therefore, a spouse can claim privilege even after the marriage ceases to exist, provided the communication was made on a date when the marriage subsisted. Third, unlike in India, spousal privilege in the UK is not limited to married couples and extends to civil partners. Lastly, on a close reading of Section 122, it is evident that it is the party spouse who can claim privilege, not the witness spouse. The words 'permitted to' and ‘consent’ used in Section 122 mean that even if the witness spouse is willing to testify, they will not be permitted to do so. However, in the UK, the law confers privilege on the witness spouse and not the party spouses. This means that the witness spouse is not required to seek consent of their spouse and cannot be precluded to testify if they are otherwise willing.

Infirmities in Section 122

Indian courts have clarified that Section 122 is not based on common law rules like the coverture doctrine. The Madras High Court in Queen Empress v. Butchi and the Supreme Court in Verghese have expressly held there is no presumption in India that a husband and a wife constitute one person in criminal law. However, there still exist logical inconsistencies in this provision. 

First, Section 122 does not justify making voluntary testimony of the witness spouse inadmissible. Preventing a spouse who wishes to testify willingly fails the logic of preserving marital harmony because the fact that a husband/wife is willing to testify against their spouse means that matrimonial harmony has already broken. Preventing voluntary spousal testimony opens gates for misuse of the provision where the party spouse can withhold relevant evidence by preventing their willing spouse from testifying. 

Second, Section 122 is counterproductive in cases involving heinous offences, child sexual abuse, and offences involving close relatives. In cases of child sexual abuse by a close relative or a spouse, family members, particularly the husband/wife, are usually aware of such information, either because the guilty spouse confesses to them or because the victim child confides in them. In both cases, it is natural that the confidant would confront their spouse before approaching the police. If such confrontation constitutes communication under Section 122 and is made inadmissible, in the absence of other corroborating evidence, it would be difficult to secure a conviction. Moreover, in heinous offences like rape, or child sexual abuse, marital harmony tends to break when the witness spouse becomes privy to such information, and there no longer exists a social need to protect it. Even otherwise, I argue that ensuring justice to the victim by considering all relevant evidence before deciding a case trumps the interest in preserving the bonds of matrimony. 

Third, Section 122 does not justify extending privilege beyond marriage. Once marriage ceases to exist, the question of marital harmony becomes irrelevant. The claim that the possibility of disclosure of communication after divorce may undermine marital trust in the present is farfetched and unreasonable. Even English law has done away with this interpretation.

Recommendations

To address the infirmities identified in the preceding section, I would recommend three changes to the existing law on spousal privilege. 

• The privilege should enure to the recipient of the communication and not to the maker. To this extent, Section 122 should be amended, and the words 'nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents’ should be deleted from the Section. This would shift the privilege from the party spouse to the witness spouse and ensure that even though a spouse cannot be compelled to testify, they can choose to do so without the consent of their spouse.
• An amendment along the lines of the UK's Police and Criminal Evidence Act, 1984 to include exceptions for cases involving allegations of heinous offences, sexual offences, and assault or injury to a spouse or a child below the age of sixteen. This would strike a perfect balance between preserving matrimonial harmony and imparting complete justice by ensuring that the guilty spouse withholds no relevant evidence. 
• Lastly, an amendment to introduce a provision similar to Section 80(5) of the Police and Criminal Evidence Act, 1984 to limit the application of spousal privilege only till the time marriage persists. Therefore, once a marriage is dissolved, either by way of a divorce or death of a spouse, the parties would no longer be able to claim the protection of Section 122.

Conclusion

Indian Courts have held that Section 122 must be strictly followed and that the Court cannot waive this provision on its will. However, it is time that Indian law recognizes the logical inconsistencies inherent in this provision and the adverse effects that it leads to. The Bombay High Court in Vilas Raghunath Kurhade v. The State of Maharashtra made welcome observations and expressed its reservations with the provision but, in the absence of an amendment, was constrained to apply the law as it exists. In Alli Noushad also, a similar fate followed. Here, the Kerela High Court heard an appeal against an order of acquittal passed by the trial court acquitting a murder accused. It was alleged that the accused (husband) suspected an illicit relationship between his wife and the deceased, and enraged by this, the accused murdered him. During the trial, the wife testified that a day before the occurrence of the incident, she had quarrelled with her husband about her frequent conversations with the deceased on the phone. 

The prosecution argued that the wife's testimony established the accused's motive to kill the deceased; however, the accused contended that the conversation between him and his wife was privileged and was inadmissible. The Court accepted the objection of the accused and held that the quarrel between the accused and his wife constituted communication and was not admissible under Section 122. The Court observed that "public interest in disclosure of the truth about a crime is not inferior or subservient to the happiness and peace of a family, secured by suppression of such truth, backed up by statute" and underscored the need to revisit the provision. However, in the absence of an amendment in this regard, the Court was compelled to follow the provision as it exists. 

It is true that in light of the interpretation given by the Courts to Section 122, the adverse effects of this provision might not manifest in the final outcome of cases. 

Since most cases involve a complex set of facts, a conviction may more or less be secured even without relying on the spouse’s testimony simply because other evidence might exist on record. However, a situation with no corroborating evidence is not unfathomable. In such cases, allowing the accused to claim a blanket privilege may result in the accused going scot-free and prevent true justice from being imparted.