Report No. 69
We now come to an important section dealing with what may be conveniently called "marital privilege".
64.1. In India, as the law now stands, the spouses are compellable witnesses against each other.1 But, even in the existing law, there is a special provision relating to the disclosure of communications made during marriage. In general, when the course of justice requires the investigation of truth, no man has any knowledge that is rightly private. But specific considerations of public policy may demand that certain matters should be kept private. Of those matters, one example is furnished by section 122, which deals with certain communications made to a spouse during marriage.
1. Section 121.
64.2. By this section, which consists of two parts, there is created a privilege and there is also created a disability. The first part of the section, which creates the privilege, provides that 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 or she has been married.
64.3. The second part of the section, creating the disability, provides that such person shall not be permitted to disclose any such communication unless the person who made it or his representative in interest consents, except-(i) in suits between married persons, or (ii) in proceedings in which one married person is prosecuted for any crime committed against the other.
64.4. There is a semicolon separating the two parts of the section and this seems to suggest the construction that so much of the matter contained in the latter-half of the section as begins with the words "unless the person" land ends with the section, is not intended to govern the first-half. In other words, the exception created in the second half for the case where a person consents or where the proceedings are between married persons etc. is not to control the first half of the section.
64.5. On the merits also, this appears to be the right approach. If a spouse in the witness-box is asked about a communication made during marriage, then, even if the other spouse consents or the proceedings are between married persons etc., there is still a reason why disclosure should not be compelled. The spouse in the witness box may find it embarrassing. The other spouse may have lost an interest in the marriage relationship-say, temporarily-but the testifying spouse may still have such interest. It would not, therefore, be proper to compel him or her to disclose the communication if he or she is, unwilling to do so.
64.6. Under the section, then, a person cannot be compelled to disclose communications made during marriage by his spouse. Without the consent of the spouse he is no even permitted to do so (except in certain cases).
Let us examine the rationale of the section. Traditionally,1 the law of evidence has demonstrated a degree of solicitude towards the sanctity of marriage-a solicitude not manifested with regard to other protected relationships. In England, until the late nineteenth century, the privilege for confidential communications between spouses was not separated from the broader principle that neither husband nor wife was competent to testify to any facts against the other. In some jurisdictions in the U.S.A. even the modern rule is not confined to a privilege for confidential statements. It rather prevents the spouse from testifying to any information gained on account of the marital relation.2
1. See Staplation v. Crofts, (1852) 18 QB 367.
2. See e.g., State v. Robbing, (1950) 35 Wash 2d 289 (213), p. 2d 310, cited in Note in 77 Harvard Law Review 734.
64.8. We need not, for the present purpose, go into the controversy whether there was in England a separate privilege of confidentiality.1 This privilege came to be recognised by statute in England. By and large, in most States in the U.S.A. also, whether or not they recognise the testimonial immunity of a spouse, the privilege not to disclose marital communications is recognised. We shall discuss the comparative position later in due course.2
1. This is discussed, infra.
2. See discussion as to English statutory law and law in the U.S.A., infra.
64.9. As to the prohibition enacted by section 122, Jenkins C.J., in a Calcutta case,1 observed that the prohibition is founded on a "principle of high import" which no court is entitled to relax. In that case, one H and others had committed a murder. A few days after the murder, H committed suicide. While he was alive, H made certain statements to J, his wife, implicating certain persons in the murder. It was held that J could not disclose those communications under section 122. The same principle applies to a confession made by a husband to his wife.2
Best, C.J. (later Lord Wyndford) in Doker v. Hosier, (1824) 171 EM 992 (where the other spouse was dead), explained the rationale in these terms:
"I think that the happiness of the marriage state requires that the confidence between man and his wife should be kept for ever inviolable."
1. Nawab Hilawdar v. Emperor, 1913 ILR 40 Cal 891.
2. Fatima v. Emperor, AIR 1914 Lah 380.
64.10. Similar views were expressed in England by the Commission on Common Law Procedure, in their second Report1 submitted in 1853. The Commission observed-
"So much of the happiness of human life may fairly be said to depend on the inviolability of domestic confidence that the alarm and unhappiness occasioned to society by invading its sanctity and compelling the public disclosure of confidential communications between husband and wife would be a far greater evil than the disadvantage which may occasionally arise from the loss light which such revelations might throw on the questions in dispute hence all communications between them should be held privileged.".
The signatories to the report are Lord Jervis, C.J., Martin, B., Lord Cockburn, C.J. Lord Bramwell and Willes, JJ.
1. Commission on Common Law Procedure, 2nd Report (1853), p. 13, cited in Shenton v. Tyler, (1939) 1 All ER 827.
64.11. The provisions of the section, it is unnecessary to say are not based on any theory of the legal unity of the spouses. The section is based on the abiding communion between husband and wife, which is of such a nature that their mutual communications are not always to be regarded on the same footing as communications between persons who have no such intimate tie. Greenleaf,1 in a very striking sentence, said that the rule is that nothing shall be extracted from the bosom of the wife which was confided there by the husband.
1. Greenleaf Evidence, (7th Ed.), Vol. 1, para. 254, quoted by Woodroffe (1941), p. 930.
A few aspects of the scope of the section may be briefly referred to.
64.12. In the first place, it is necessary that the communication must be made during marriage. The privilege does not cover communications before marriage.
64.13. Secondly, on the other hand, the privilege survives the marriage, as is clear from the words "or has been married", which occur in the section.1 The communication must be made during marriage. But the disclosure thereof remains privileged even after the termination of the marriage. "Miserable indeed", said Lord Alvanley,2 "would be the condition of a husband if, when the woman is divorced from him, perhaps for her own misconduct, all the occurrences are to be laid at large".
1. M.C. Verghese v. T.J. Poonam, AIR 1970 SC 1876 (on appeal from 1967 AIR 228).
2. Cf. Monroe v. Twislation, (1802) 170 ER 256 (Divorced woman).
64.14. Thirdly, once the relationship of marriage is established and it is proved that the communications were made during marriage, the privilege applies irrespective of the subject matter of the communication and the nature of the proceedings. For example, the decisions in England show almost no trace of any exception for crime. One of the earliest1 English cases clearly to recognise a marital privilege involved a wife's request to her husband to commit forgery. Fourthly, it is not necessary that the spouse claiming the privilege, or the other spouse, must be a party to the proceedings.
1. Lady Ivy's Trial, (1784) 10 Now ST 555 (628).