Report No. 69

VIII. Law in U.S.A.

64.35. The marital privilege has received fall recognition in the U.S.A. The marital privilege, it is stated, is two-fold: testimonial privilege and confidential communication. The testimonial privilege is the privilege not to testify against a spouse. It lasts only as long as the marriage exists. It would include matters occurring even before the marriage. The testimonial privilege is held by the spouse against whom testimony is sought; as well as by the spouse whose testimony is sought.

64.36. Confidential communication is the other aspect, it is regarded in that country as similar to the attorney-client relationship. Although it does not exist until there is a marriage-and therefore cannot relate to pre-marriage communications-the privilege attaching to marital communications is said to last for ever. Although the position is not exactly uniform in all States in the U.S.A., the above statement represents the law in an overwhelmingly large number of States.

Sherwood J. observed1-

"It is necessary to preserve family peace and maintain that full confidence which ought to subsist between husband and wife.".

In the eloquent language of Taylor, C.J.2-

"Society has a deeply-rooted interest in the preservation of the peace of families, and in the maintenance of the sacred institution of marriage and its strongest safeguard is to preserve with jealous care any violation of those hallowed confidences inherent in, and inseparable from, the marital status. Therefore, the law places the ban of its prohibition upon any breach of the confidence between husband and wife by declaring all confidential communications between them to be incompetent matter for either of them to expose as witnesses."

1. Sherwood, J., in Pringle v. Pringle, 59 Pat 281 (288).

2 Mercer v. State, 40 Ha 216 (226): 24 So 154: 74 Am St Rep 135.

64.37. New Jersey Rule.-

The following provision1 in the New Jersey Rules of Evidence (1972) is a sample of the provision contained or recognised in most States:-

"Rule 28. Marital Privilege-Confidential Communications.-No person shall disclose any communication made in confidence between such person and his or her spouse unless both shall consent to the disclosure or unless the communication is relevant to an issue in an action between them or in a criminal action or proceeding coming within Rule 23(2). When a spouse is incompetent or deceased, consent to the disclosure may be given for such spouse by the guardian, executor or administrator. The requirement for consent shall not terminate with divorce or separation. A communication between spouses while living separate and apart under a divorce from bed and board shall not be a privileged communication".

1. Rule 28, New Jersey Rules of Evidence (1972).

64.38. Although the expression used is "in confidence" or "confidential", the general understanding in the United States in relation to that expression is that all communications made during marriage' are confidential unless the circumstances show that they were not intended to be so. Another rule in the same State [Rule 23(2)1 precludes a spouse of the accused in a criminal proceeding from testifying except in certain enumerated cases.

IX. Need for Amendment

64.39. Proceedings involving offences against children.-

It is now time to discuss, a few points which require consideration with reference to the section. The marital privilege under the section does not apply in proceedings between the spouses or proceedings in which one married person is prosecuted for any crime committed against the other. This exception is expressly enacted in the section. There is however, no exception in respect of proceedings where a child of the marriage is concerned. Welfare of the child is a consideration that has assumed importance in modern legal thought, and it would not be improper if an exception is made for proceedings in which a child of the marriage is concerned. It could usefully cover children who, though not born of the marriage, are children of one of the spouses.

64.40. By way of illustration, we may cite an American case discussed a few years ago in the Boston University Law Review,1 where the defendant was convicted of mistreatment of his five-month old infant. The defendant's wife voluntarily testified against her husband, and the testimony was admitted over the defendant's objection. The Missouri Statute (which was the one at issue in the case) reads: "No person shall be incompetent to testify as a witness in a criminal cause or prosecution by reason of being the husband or wife of the accused provided no wife or husband shall be required to testify, but any such person may, at the option of the defendant, testify in his behalf ; provided, that in no such case shall husband and wife when testifying be permitted to disclose confidential communications in the relation of such husband and wife".

1. Cases and Comment, (1958) 38 Boston University Law Review 156.

64.41. The court held that it was a recognised common law rule that the wife may testify against her husband if the injury was to the wife. The child was regarded as an extension of the wife's personality and, therefore, the wife could testify. The statute, it was observed, was not created for the purpose of creating new disabilities, and the common law exception remained.1

1. State v. Koilanborn, (1957) 304 SW 2nd 855, cited in Cases and Comment, (1958) 38 Boston University Law Review 158.

64.42. It is desirable to make the position clear, in India also. The present exception is based on the principle that where the interests of the two parties are not identical but conflicting, disclosure should be allowed. The same principle should be applied to proceedings where the interests of the child are concerned; for, in such proceedings between spouses, the interests of the parties are not identical.

64.43. Recommendation.-

Attention may be drawn, in this connection, to a provision suggested in the Model Code of Evidence,1 rule 216, which (so far as is relevant) provides that neither spouse has a privilege in a case relating to a crime against the person or property of the other or of a child or either or desertion of the other or of a child of either. We recommend that a suitable amendment should be made in section 122 on the point discussed above.

1. Model Code of Evidence (American Law Institute, 1942), p. 155, rule 216.

64.44. Amendment recommended regarding communications made by testifying spouses.-

At present, section 122 does not cover communications made by the testifying spouses. An important question for consideration is whether this position is satisfactory. The present section may lead to anomaly. For example, if the husband is called as a witness, he can be forced to make a disclosure of communication made by him, though not of communications made to him. After this, the wife may be called and she, in her turn, could be forced to disclose communications made by her. But this process, the entire episode or the whole complex of communications could be reconstructed, at least to the extent to which such reconstruction is possible by fragmentary disclosures.

We are not having in mind, at present cases where the spouse is made to testify against the accused-that situation may not cause this particular anomaly, because the accused is not compellable to appear as a witness.1 But the point to be made is that the present position might virtually render the privilege futile. It is apparently for this reason that the formulation of the privilege in some of the American States2 phrases the privilege in terms of "communications made between such persons and his or her spouse". The Model Code of Evidence framed by the American Law Institute3 has the following suggested Rules relating to this aspect of marital privileges:-

"Rule 215. Marital Privilege: Confidential Communications Between Spouses.-Subject to rules 216, 217, 218 and 231, a person, whether or not a party, has a privilege to refuse to disclose, and to prevent a witness from disclosing, a communication, if he claims the privilege and the judge finds that-

(a) the communication was a confidential communication between spouses, and

(b) the witness was at the time of the communication of the spouses or is the duly appointed, qualified and acting guardian of his person, and

(c) the claimant is the holder of the privilege, or a person authorised to claim privilege for him."

The Uniform Rules of Evidence4 contain similar provisions. We are of the view that for the reasons given above, the privilege should cover communications whether made by or to a testifying spouse (or ex spouse) during marriage.

1. See discussion as to section 120.

2. Rules of Evidence New Jersey, rule 28, quoted, supra.

3. Rule 215 of the Model Code of Evidence.

4. Rules 23(2) and 28(2), Uniform Rules of Evidence.

64.45. Recommendation to exclude intercepted or overheard communications.-

There is yet another point on which the section seems to need amendment. We have stated1 above that a third person, as the law now stands, can give evidence of a conversation he has heard or intercepted between a husband and wife. This may be a correct construction of the statutory provision, narrowly worded as it is. But, since the primary object of marital privilege is to protect peaceful marriage life, so that spouse can make any communication to the other without hesitation and reservation, it sounds reasonable to extend the provision to communications overheard or intercepted by others also. We recommend that the section should be so amended.

1 See supra Limitations-third person not privilege.

64.46. In this connection, we would like to refer to Viscount Radcliffe's dissenting speech in Rumping's case1. His observations were as follows:-

"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 that it should. If it does, we must recognise the implications that, personally, I find overwhelmingly distasteful. A husband may gasp or mutter to his wife some agonised self-incrimination, intended for no ear in the world but hers: yet the law will receive and proceed upon the evidence of the successful everdropper, professional, amateur or accidental. It is free, I suppose, to entertain the testimony of the listening device, if properly proved.

An incriminating letter may be intercepted by any means: it may be snatched from the wife's hand after receipt, taken into custody if she has mislaid it accidentally, withdrawn from her possession by one means or another: in all these cases, it is said the trophy may be carried into court by the prosecution and proof given that the prisoner is its author, the law has no rule that excludes it from weighing against him as a confession. I do not, for a moment, suppose, of course, that any of your Lordships is indifferent to these implications or that by this decision you desire to countenance them.

But the only alternative to admitting them is to rely, as the learned Solicitor-General did in argument, upon the exercise of an inherent discretion in the judge who presides at the trial to exclude which he regards as unfairly prejudicial to the accused. Certainly, there is much discretion, and there are, for instance, judges' rules. But I cannot agree that a matter of this sort is a proper subject for so vague and uncontrollable a thing as judicial discretion. By what considerations is it to be guided? It is assumed that the evidence, if admitted, will be materially prejudicial to the prisoner. Is the guiding principle then to be some general conception as to what is fair and what unacceptably unfair in methods of police or amateur detection?

I cannot think that the law should leave the prisoner's fate to be determined by discretion. After all, policemen have their duty to detect and bring home a crime; and in this very case, it must be remembered, the trial Judge admitted the evidence of the letter despite the fact that the man's fellow seamen had betrayed his trust to post it to the wife and, though ignorant of the contents, had handed the closed packet to the ship's captain. No doubt, society has an interest in the successful detection and prosecution of crime, but it is axiomatic that it postpones that interest to such considerations as the indecy of listening to evidence obtained by torture or intimidation, or improper inducement. The only question here is whether or not listening to the confidential communications passing between husband and wife should be included among those considerations."

1 Rumping v. D.P.P., (1962) 3 WLR 763 (782-783).

X. Recommendation

64.47. Recommendation.-

In the light of the above discussion, we recommend that section 122 should be revised as follows:-

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

(2) No one who has overheard or intercepted or has acquired possession otherwise than by the consent of both the spouse any communication made during marriage between spouses and no one who is in possession of a communication so intercepted, shall be permitted to disclose any such communication unless both the spouses or their representatives in interest consent or unless the proceedings are of the nature specified in sub-section (3).

(3) The proceedings, referred to in sub-sections (1) and (2) 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 prosecuted for any 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; and

(d) proceedings in which one married person is the complainant or is person to whose instance the first information of the offence was recorded, and the other married person is the accused".