Question: Discuss the scope and limits of the privilege granted to the communications made between husband and wife...

Question: Discuss the scope and limits of the privilege granted to the communications made between husband and wife. What are exceptions under which the said privilege may be withdrawn? [HPJS 2019]

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Answer

The concept of privileged communication between husband and wife is rooted in the idea that marital confidence must be protected to maintain the sanctity of marriage. This privilege is recognized under Section 122 of the Indian Evidence Act, 1872, which states:

"No person who is or has been married shall be compelled to disclose any communication made to him during marriage by his spouse, nor shall he be permitted to disclose any such communication, unless the person who made it, or their representative-in-interest, consents."

This privilege applies to both civil and criminal proceedings and extends to communications made during the subsistence of marriage, even if the marriage is later dissolved.

Scope of the Privilege

• Applies to Communications, Not Acts: The privilege covers oral, written, or gestural communications but does not extend to acts or conduct of a spouse. 
• Covers Present and Past Marriages: Even if the marriage is dissolved by divorce or death, communications made during the subsistence of marriage remain privileged.
• Protects Both Spouses: The privilege ensures that neither spouse can be forced to disclose confidential marital communications, safeguarding trust and personal security.
• Applies to Judicial Proceedings: The protection applies only in legal proceedings and does not prevent voluntary disclosure outside of court.

Limits of the Privilege

• Applies Only to Confidential Communications: If a communication is made in the presence of a third party or shared publicly, it is no longer considered privileged.
• Privilege Can Be Waived by Consent: The privilege can be withdrawn if the spouse who made the communication, or their legal representative after their death, consents to the disclosure.
• Does Not Cover Matters Outside of Communication: Observations, physical conditions, or actions of a spouse are not protected. For example, if a spouse sees the other hiding stolen property, they may be compelled to testify about what they saw.

Exceptions to the Privilege

The privilege is not absolute and can be withdrawn in certain cases:

1. Cases Between Spouses:  If the spouses are involved in litigation against each other, such as divorce, maintenance, domestic violence, or cruelty cases, the privilege does not apply.
2. Criminal Proceedings Involving One Spouse Against the Other: If one spouse is prosecuted for an offence against the other, the privilege does not apply.
3. Cases Involving Crimes Against Children or Public Interest: Communications may be disclosed when one spouse is accused of a crime against a child (including their own children) or where disclosure is necessary in the interest of justice.
4. Cases Affecting the Security of the State: If a spouse communicates details of treason, terrorism, or other national security threats, the privilege may be lifted.

The privilege of confidential communication between spouses is an essential protection for marital harmony, but it is not absolute. Courts recognize exceptions where justice, public interest, and victim protection outweigh the privilege. Thus, while the law seeks to safeguard personal relationships, it also ensures that this privilege is not misused to shield criminal acts.