Admissibility of Communication during the Marriage | A the husband of B obtains the decree of divorce against A…Is the communication made by A to B privileged under Section 122?

Question: Admissibility of Communication during the Marriage | A the husband of B obtains the decree of divorce against A. After divorce, one day he suddenly meets B in the market and tells her that a few days back, he committed the murder of C. Is the communication made by A to B privileged under Section 122? [A.P.J.S. 1987]

Find the answer to the mains question only on Legal Bites. Admissibility of Communications during the Marriage | [A the husband of B obtains the decree of divorce against A. After divorce, one day he suddenly meets A in the market and tells her that a few days back, he committed the murder of C. Is the communication made by A to B privileged under Section 122?]

Answer

Section 122 of the Indian Evidence Act talks about the admissibility of Communications during the marriage.

It states: “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.”

It is important to note that this section applies to such matters as having been communicated during the marriage. If a communication is made by one person to another after the dissolution of the marriage between them. This section does not apply. Similarly, if communication is made prior to the marriage, the wife or husband may be compelled to depose about it.

In interpreting the rule, it is not material that the relation of husband and wife should be subsisting at the time when the evidence is required to be given so where a woman has been divorced and had married another husband was offered as a witness against her former husband to prove a communication made during the coverture, it was held that she was incompetent to do so [S.J. Chaudhary v. State, 1985 Cr. LJ 622]

The protection conferred by the section is limited to such matters as having been communicated during the marriage. A communication made to a woman before marriage would not be protected. But the privilege continues even after the marriage has been dissolved by death or divorce.

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 the light of the status at that date and not the status at the date when evidence is sought to be given in court [MC Verghese v. TJ Ponnan, AIR 1970 SC 1876]

In the case of Vilas Raghunath Kurhade v. State of Maharashtra, 2011 Cr LJ 3300 (Bom), where the accused had made an extra-judicial confession to his wife, it was held that the said extrajudicial confession cannot be taken into consideration as evidence.

Applying the reasoning of section 122 and its application from the rulings of the above court, it can be held in the present case at hand that when, ‘A’, the husband of B after their divorce, one day meets her in the market and tells her that a few days back, he committed the murder of C, the communication made by A to B will still be covered under privileged communication between husband and wife under Section 122.

Such communication made by the husband cannot be held admissible against A in the present case.

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1. Law of Evidence Mains Questions Series Part-I
2. Law of Evidence Mains Questions Series Part-II
3. Law of Evidence Mains Questions Series Part-III
4. Law of Evidence Mains Questions Series Part-IV
5. Law of Evidence Mains Questions Series Part-V
6. Law of Evidence Mains Questions Series Part-VI
7. Law of Evidence Mains Questions Series Part-VII
8. Law of Evidence Mains Questions Series Part-VIII
9. Law of Evidence Mains Questions Series Part-IX
10. Law of Evidence Mains Questions Series Part-X