Report No. 185

Section 122

This Section deals with 'communications during marriage' between a husband and wife and as to what extent they are privileged. It reads as follows:

"122. 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."

The Section bears some resemblance to Section 120 which has already been dealt with in connection with competency and compellability of one spouse 306 to be witness against the other. We have already referred to the amendments proposed to Section 120 by the 69th Report which we have accepted.

The first part of the Section refers to the witness-spouse who cannot be compelled to disclose any communication made to him or her; the second part relates again to "any such communication: i.e. made to the witness, which, in case he volunteers (i.e. otherwise than under compulsion), he cannot unless the other spouse who has written it (or his/her representative) consents. The third part deals with two exceptions (1) inter se action between the spouses (2) proceedings in which one of the spouses is prosecuted for any crime committed against the other.

The Section does not speak of communication by the witness-spouse to the other spouse. The 69th Report referred (see para 64.4 and 64.37) to rules which refer to communication between spouses. The New Jersey Rules of Evidence say:

"No person shall disclose any communication made in confidence between such person and his or her spouse."

This includes communication received by the witness spouse as also those sent by the witness. Similar is Rule 215 of the Model Code of Evidence 307 framed by the American Law Institute. It refers to privilege in regard to "communication between spouses".

If the paramount reason for protecting such communications was the preservation of family harmon.- a concept on which there is no difference of opinion anywher.- Section 122 must be amended by granting the immunity not only to the communications received by the witness spouse but also to those which emanate from him or her.

A question arises whether a letter which is written by the husband to the wife, if it falls in the hands of a third party or the police, it could be put in evidence. The House of Lords held in Rumping v. D.P.P. 1962(3) All ER 256, that no privilege attaches to such a communication in the hands of a third party. Viscount Redcliffe dissented. The Supreme Court of India in M.C. Varghese v. T.T. Ponnan AIR 1970 SC 1876 appear to have accepted the majority view in the above judgment (see para 15). They say after referring to the above ruling that, if the spouse who received the letter comes as a witness, then she alone can object. In para 14, they say that, even if the spouse witness who received it objects, that does not mean that no other evidence is barred under Section 122.

In the 69th Report, in para 64.45, the Commission felt that it sounds reasonable to extend the provision (i.e. see 122) to communications overheard or intercepted by others also. The fundamental object is to 308 preserve family harmony. In order to substantiate this proposal, the Commission quoted extensively from the speech of Viscount Radcliffe. He said:

"Ought the law to apply a different rule merely because the letter has miscarried and has come into the hands of the police? Considering the history and the nature of the principle that lies behind the special rules governing testimony of husband and wife in criminal trials, I do not think it should."

He even refers to eaves dropping, and cases where a letter is snatched (say) from the wife's hands. In all such cases, it is said the trophy can be carried into Court by the prosecution but that cannot be permitted. He referred to the principle of ensuring 'conjugal confidence' and the legal policy behind the provision.

Sarkar says (15th Ed., 1999, page 1986) that under English and American rule, third persons are allowed to give evidence of communication between married persons made in their presence or overheard by them (R v. Smithies 5. C & P. 332: R v. Simmons: 6 C & p. 540; State Bank v. Hutchinson: 62 Kan 9 (Am).

Before we go further, we shall refer to other decisions of the Supreme Court, under this Section though, in our view, they do not throw much light on the question. Ram Bharosey v. State AIR 1954 SC 704 was a case of a wife deposing in respect of the acts of her husband in relation to a crime which she saw. It was said Section 122 was not attracted as she was deposing to his acts and not his communication.

In a recent case in Shanker v. State of TN: 1994(4) SCC 478 (see para 28) where the husband, accused in the case, told the witness about his killing the deceased. It was held that the witness was not the legally wedded wife of the accused and was his mistress, (the first marriage of the accused still subsisting) and hence Section 122 was not attracted.

We have already referred to R v. Simmons (1834)6. C & P 540.. There Alderson B said

"What a person is overheard saying to his wife or even saying to himself is evidence."

Phipson (15th Ed., 1999, para 28.10) thus refers even to a 'soliloquy' as being evidence. Also refers to R v. Sippels (1839) a case of a statement made in sleep. R v. Spilsbury 1835-7 C & P. 187 is a confession of a drunk followed by the Cape Provincial Division of the Supreme Court of South Africa in R v. Rimmer 1954 (1) SA 489.

We have given serious consideration to the proposal made in the 69th Report for excluding evidence of third parties in relation to communication between spouses which falls in their hands. Of course, Viscount Radcliffe laid stress on 'family harmony' principle and the duty of the prosecution to prove the guilt of accused. The point here is that a written communication which falls into hands of third parties is not a communication "made to him". It has not reached the person to whom it was meant, it does not fall within the scope of the privilege.

If a soliloquy is not inadmissible, why should not a written communication which has not reached the other spouse be admissible? (Then, question is if a letter received by the other spouse, if it reaches a third party, should it not be admissible). The question may arise whether a statement made by a spouse to another in the presence of servants or third parties. Why should the third party be shut out from giving evidence? Today, police are able to intercept phone conversation and hear them simultaneously along with the other spouse. In some cases they are also able to obtain transcript of full telephone conversation on cell-phones.

Should all these be excluded is the question? If a terrorist's talk with his wife on cell phone is intercepted, should it be held inadmissible? The way crime is increasing with the help of technology, we think that these statements should not be protected? When a husband (or wife) calls his wife on phone and speaks about a crime committed by him, any interception of the phone by the polic.- must be allowed to be used in the Court. This principle must apply to civil as well as criminal proceedings, because Indian law makes no such distinction.

We, accordingly, disagree with the opinion expressed in the 69th Report to make inadmissible, information received by third parties in relation to spouse-to-spouse communications. We are of the view that between 1977 and 2002 there is a lot of difference because of development in technology and new types of litigation and also because of increase both in technology and crime. Hence, subSection (2) has to be introduced covering this aspect.

The third aspect discussed in the 69th Report concerns the exception to the rule of privilege. As it is Section 122 excepts two classes of cases (1) suits between the married persons (2) proceedings in which one married person is prosecuted for crime committed against the other. The third exception recommended related to proceedings where one married person is prosecuted for any offence committed against a child of the other person or a child of the first mentioned person or a child of to whom either of them stand in the position of a parent. (The language is similar to the recommendation in Section 120).

As already stated earlier, communication received or sent must both be protected.

We, therefore, recommend with slight modification of the recommendation in the 69th Report (para 64.47) that Section 122 should be substituted as follows:

"122 Communication during marriage.- (1). No person who is or has been married, shall be compelled to disclose any communication made during marriage, between that person and any person to whom that person is or has been married; nor shall that person be permitted to disclose any such communication, unless the person to whom that person is or has been married or that person`s representative in interest, consents, or unless the proceedings are of the nature specified in sub Section (3).

(2) Any person other than the person referred to in sub-Section (1) who has overheard or has acquired possession of or has intercepted, in accordance with law, any communication as is referred to in subSection (1), may be permitted to disclose any such communication without the consent of the spouses or their representatives in interest.

(3) The proceedings referred to in sub Section (1) are-

(a) proceedings between married persons;

(b) proceedings in which one married person is prosecuted for any offence committed against the other;

(c) proceedings in which one married person is the complainant or is the person at whose instance the first information of the offence was recorded, and the other married person is the accused;

(d) proceedings in which one married person is prosecuted for an offence committed against a child of the other person or a child of the first mentioned person or a child to whom either of them stands in the position of a parent."