Evidence of Communications | W the wife of H one day sees her husband H while he was committing the murder of D. W wants to depose against her husband ‘H’ regarding the murder of D. Can she do so?

Question: Evidence of Communications | W the wife of H, one day sees her husband H while he was committing the murder of D. W wants to depose against her husband ‘H’ regarding the murder of D. Can she do so?

Find the answer to the mains question only on Legal Bites. Evidence of Communications | [W the wife of H, one day sees her husband H while he was committing the murder of D. W wants to depose against her husband ‘H’ regarding the murder of D. Can she do so?]

Answer

The law relating to evidence of communications between husband and wife is contained in Sections 120 and 122 of the Evidence Act. Section 120 enacts that in criminal proceedings (as the one concerned here) the spouse of the accused may be cited as a witness.

It relates to the competency of a wife or husband as the case may be, to be a witness in the cause, for the prosecution or for the defence. Section 122 commands that a wife or husband cannot be compelled to disclose and, even if she or he is willing to do so be permitted to disclose any communication made to her or him by the spouse, except on express consent of the latter, or if he or she is no more, of the legal representative.

Section 122 lays down that a wife or husband may not be compelled to divulge the communication of husband to wife and vice versa. According to the section, any communication during the wedlock by the husband to his wife or by wife to her husband is prevented from being proved in a Court of Law.

In the case of Ram Bharose v. State of Uttar Pradesh [AIR 1954 SC 704] the Court laid down that mere doing of an act in the presence of the spouse cannot be considered as communication between them. It is not like any domestic act will be considered as communication. Communication must be conveyed in some way; be it verbal, or non-verbal.

In the instant case, the wife has seen her husband coming down from the roof and then coming out of the bathroom again with changed clothes. The wife testified regarding the same and the testimony was admissible as the act of the husband was not a communication.

In the case of Bhalchandra Namdeo Shinde v. State of Maharashtra [1994 Cri. L.J. 274], the court held that communication for the purpose of Section 122 would refer to only verbal or written words said by a spouse and not their actions. The wife, in this case, was called in to give testimony against her husband who was being tried for allegedly committing a murder. She was allowed to testify regarding his conduct and actions but not the communication between them.

It is settled law that the prohibition on the admissibility of communication between a husband and wife confines only to the communication between them but it does not prohibit communication to be proved by some other means. In the present case at hand, ‘W’, the wife of ‘H’ sees her husband while he was committing the murder of ‘D’.

Being the sole eye-witness of the criminal conduct of her husband when he was killing D, if later ‘W’ wants to depose against her husband ‘H’ regarding the murder of ‘D’, she is allowed to do so as she is a competent witness as under the section 120 of the Indian Evidence Act.

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