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Privileged Communication: Discussing Marital Privilege

Eashaan Agrawal



Abstract


Law reflects the realities existing within the societies and provides legitimacy and protection to institutions that are an essential feature of this society. Marital relationship is one such institution which the law regulates and protects through various legislations. The Indian Evidence Act, also provides a unique status to matrimonial communications between spouses. Section 122 provides that the spouses cannot be compelled to disclose in court any communication made to them by the other spouse and hence the communication between the spouse becomes privileged. The purpose of this provision was to protect the matrimonial harmony and mutual trust between spouse by letting the spouses engage in free conversation with each other.


While the privileged nature of matrimonial communication has been widely recognized there are certain issues which arise specifically in Indian context. Recently, the Supreme Court of India has extended some rights, earlier restricted to married people, to adults in a live-in relationship. In the first part of this article, the author has tried to analyze whether by virtue of the Supreme Court’s ruling can the existing provision of Section 122 harmoniously interpreted to include adults in a live-in relationship. Further, the author has also discussed whether such expansion of privilege necessary.


In the second part of this article, the author has discussed how the concept of privilege in cases matrimonial communication has often been prone to misuse by the parties. The author has analyzed various cases laws and hypothetical scenarios which point out the shortcomings in Section 122 and what are the possible solutions that could help make the provision more suited to the broader objectives of the Indian legal system


Thus, the author will try to analyze Section 122 from a multidimensional approach and provide the readers a deep insight in the concept of privilege in matrimonial communication.


Marital Privileges


Section 5 of the Indian Evidence Act provides that evidence may be given on facts which are declared to be relevant by the act itself. Further, the general rule of evidence, under the common law principles, is that facts which are relevant are also admissible as evidence.[1] However, the law creates certain exceptions to this general rule, where facts, which are otherwise relevant, are made inadmissible in the court as evidence. The reason behind such exclusion is that while relevancy is based on logic, law needs to consider social context, and hence to preserve such social interest, certain kinds of evidence are not admissible. One of the grounds where evidence though relevant, but still may be excluded is based on privilege. The intention behind granting this evidence of privileged nature is to protect public interest.[2] Thus, professional communications are privileged under Section 126 of the Indian Evidence Act, in order to provide the accused a fair chance of securing effective legal representation.[3]

Section 122, of the Indian Evidence Act, similarly also grants the spouses, marital privileges, by virtue of which, the communications made during the marriage to another spouse are privileged.[4] Hence, the spouse cannot be compelled to disclose such communication in the court without witness spouse’s own will and the express consent of the accused spouse. The author will, through the course of this chapter, critically analyze the rationale, the elements, and the existing judicial discourse surrounding Marital Privileges.


Harmonious Relationship: Rationale Behind Marital Privileges


The legislative intent behind giving marital communications a privileged status can be traced to two ideas which were prevailing in England. The first view, as discussed by Sir Edward Coke, was based on the premise that the wife was incompetent to give testimony against her own husband, since the both the husband and wife were conceived as a single legal entity and hence, by extension, incapable of testifying against themselves.[5] The second prevailing view was based on the sociological conceptualization of the institution of marriage. According to this view, an important aspect of human existence was the inviolability and sanctimony of his domestic life. However, if the communications between the spouses became subject to public scrutiny and disclosure, the mutual trust between the spouses will break down, causing social dysfunction.[6] England’s Commission on Common Law Procedure, in fact, considered that the cost of this invasion of the personal space of the spouses was a far greater evil than the disadvantage which may arise in collection of relevant evidence and thereby recommended that all communication between spouses should be held to be privileged.[7] Gradually, through a course of judicial decisions, the second view became the accepted reason for marital privileges rather than competency of the spouses to testify.[8] Thus, maintenance of harmonious relationship between the spouses became the primary rational behind the marital privilege.


Section 122: The Contours of Marital Privileges


Section 122, when enacted, was thus modelled on protecting the harmonious relationship between the spouses. Section 122 provides that; communication made by one spouse to another is of privileged nature. This privilege can be overridden subject to two requirements. Firstly, the witness’ spouse should be willing to disclose the communication made to him. Secondly, the other spouse should expressly consent to the disclosure of such communication.[9] Thus, the privilege is with the spouse who made the communication and disclosure is impermissible, even if the witness spouse is willing to disclose such communication.[10] The exception to this privilege exists when the spouses are engaged in either, suits against each other, or, one spouse is prosecuting another spouse for commission of a crime against him. Given the significant consequences of marital privilege in trial proceedings, section 122 has been subject to multiple judicial decisions which have clarified its scope and elements.


Understanding Marital Privilege: Judicial Precedents


In the landmark case of M.C. Verghese v. T.J. Ponnan, the Supreme Court was called to examine if a letter, containing defamatory content concerning a third party, sent by husband to wife was privileged under s.122. The Supreme Court held that if the guilt of the accused is sought to be proven solely based on the testimony provided by her wife, it would be inadmissible under s.122. The court also clarified that the marital status of the parties at time of legal proceedings is irrelevant, provided that the parties were married to each other when the communication was made by the spouse. Once a communication has been made, the protection under s.122 does not terminate with the termination of the relationship, rather it continues till eternity.[11]


The ruling of the Supreme Court was followed by multiple High Court judgements which further discussed the scope of s.122. In the case of Col. S.J. Choudhary vs. The State¸ the Delhi High Court, while discussing the cope of section 122, held that the admission of testimony as envisaged under Section 122 has the potential to cause distrust among spouses and that the privilege is funded on a principle of high import and cannot be waived by the court on its own will.[12] In the case of Appu v. State, the Madras High Court held that s.122 protected only the communication between the spouses and the content of the communication was not protected per se. Thus, if a third person overhears the conversation between a husband and wife, then such person’s testimony can be made admissible in the court of law. Such admission of evidence will thereby not be considered a violation of s.122.[13]


Further, in the cases of Nagraj vs. State of Karnataka and Bhalchandra Namdeo Shinde vs The State of Maharashtra, the court clarified on nature of the term ‘communication’. In Nagraj vs. State of Karnataka, the Karnataka High Court specified that the privilege under s.122 extends to all communication between spouses and need not be only of confidential nature. Further, before accepting evidence under s.122 the express consent of party against whom the disclosure must be taken. The consent, according to the court must be express and cannot be implied.[14]


In the case of Bhalchandra Namdeo Shinde vs The State of Maharashtra, the Bombay High Court held that the communication between parties did not include the conduct of the parties which was witnessed by the spouse and hence admissible in court of law. Thus, a wife’s observations of her husband making preparation for a crime was held to be admissible, while the communications made by the husband discussing the preparation of crime were excluded as inadmissible.[15]


These case laws clarify the scope of s.122 of the Indian Evidence Act and help us understand the contours of Marital Privilege in India. This, however, raises two important questions. Firstly, given the development of legal jurisprudence on live-in relationships, can the marital privilege under section 122 also be extended to persons in a live-in relationship? Further, given long passage of time since the introduction of the concept of marital privilege, is there a need to amend section 122 to bring it in line with the needs of the modern judicial system?


Broadening the Horizon: Marital Privileges in Live-In Relationships


In the previous chapter the author discussed the scope of s.122 which provides for marital privilege and the various case laws which clarified on the extent such privilege is available and the conditions in which it can be waived. However, an essential feature of s.122 is that it is exclusively available to people who are married. This raises an interesting question of ‘Whether the privilege granted to matrimonial communication under the Indian Evidence Act, also extends to live-in relationships?’. The author through this chapter will discuss the judicial precedents which discuss the nature of live-in relationships and try to see if the judicial discourse allows adults in a live-in relationship to claim marital privileges. The author will also engage in a comparative analysis with United Kingdom and United States which already have exhaustive judicial discourse around rights of people in a live-in relationship.


Live-In Relationship: Judicial Discourse


While the marital relationship is an aspect of private domain of an individual, the state still regulates and lays down certain rights and obligations which the married spouses owe to each other. The legal recognition is thus granted by the state, through which the parties are bestowed with the bundle of mutual rights and duties. However, when two persons are in a live-in relationship, their relationship is not granted legitimacy by the state and hence the parties do not owe each other any marital duty. This does not mean, however, that the live-in relationship is illegal, it merely means that the there is a gap existing in the legislation. This was the traditional view of the judicial institution towards the conceptualization of live-in relationship.


However, gradually the Judiciary through different cases defined and clarified the extent of protection and rights available to persons in a live-in relationship. The process of Judicial recognition began with the case of Payal Sharma vs. Superintendent, Nari Niketan Kalindri Vihar, Agra and others. In this case, the Allahabad High Court held that a major adult has the right to go and live with anyone. Further, a man and woman can live together without getting married and such an act, while may be considered immoral by some, is not illegal.[16]


Further, the Supreme Court in the case of D. Veluswamy vs. D. Patchaiammal held that even in cases of live-in relationships, which are similar to common law marriages, certain basic elements must be met. They include:


1. The Couples must hold themselves out to society as spouses

2. They persons should have attained legal age of marriage

3. They must be qualified to enter a legal marriage

4. They must have cohabited and held themselves out as spouses for a significant time.


However, if the relationship between parties is merely maintained for sexual purpose, then such a such a relationship would not be eligible for protection on par with that of live-in relationships. The Supreme Court gave this judgment in the context of the Protection of Women from Domestic Violence Act.[17] Another, judgement by the Supreme Court furthered the ruling of D. Veluswamy and laid down certain conditions subject to which a live-in relationship can be given the status of marriage. This was the case of Indra Sarma vs. V.K.V. Sarma, in which the Supreme Court laid down certain criteria to identify such live-in relationships to which the protection, otherwise available in marital rights, can be extended.[18] These criteria included elements such as the duration of the relationship, living and financial arrangements, sexual relationship, children and socialization and conduct of the parties in public.


Reconciling S.122 and Live-In Relationships


These decisions point towards the growing tendency of the judiciary extending rights, earlier exclusive to married couples, to people in live-in relationships. It is in this progressive context we shall see the applicability of s.122 of the IEA to persons in a live-in relationship.


The author will approach the grant of marital privileges to persons in a live-in relationship in two ways. Firstly, the author will rely on s.50 and s.114 of the IEA to show that the court can grant the protection of marital privilege to persons in live-in relationship under the existing provisions. Secondly, the author will base his contention on the wider rationale behind s.122 and refer to the judicial understanding about the scope of marital privilege in the United States and the United Kingdom.


Section 114 of the Indian Evidence Act, provides the Court with the power to presume existence of any fact which it thinks is likely to happen.[19] This provision has been frequently used by the court to understand the nature of live-in relationship in the context of the Evidence Act. In the case of Badri Prasad v. Dy. Director of Consolidation and Ors, the Supreme Court observed that in case a man and woman lived together for 50 years, as husband and wife, a strong presumption lies in favor of marriage between the parties. Further, while the presumption is rebuttable the burden is heavy, since law leans in favor of legitimacy of marriage.[20] This view was further reiterated in the case of S.P.S. Balasubramanyam vs. Suruttayan, where the Supreme Court again held that long period of cohabitation as husband and wife can lead to presumption of marriage, albeit rebuttable, the burden is heavy.[21] This case was followed by the case of Alok Kumar v. State, where the Delhi High Court specified that live-in relationships are usually “walk in and walk out” and the parties owe each other no mutual obligation. In this case, both the parties had children and one person had not even divorced his previous wife, though they were separated.[22] However, in the case of Madan Mohan Singh & Ors vs Rajni Kant & Anr, the Supreme Court clarified the position of live-in relationships and held that live-in relationship, if continued for a long time cannot be termed as “walk in and walk out” relationship and there is a strong presumption of marriage between the parties in such case.[23] Thus, judicial precedents show us that relying on s.114 the Court favors legitimacy and thereby presumes that the parties were married. Using this judicial interpretation, we can thereby conclude, that the parties in live-in relationship can take the benefit of s.114 to show existence of marriage and thereby claim the protection of marital privilege as granted under Section 122. This approach allows the parties to claim marital privilege within the existing framework of the Indian Evidence Act. However, the parties cannot be sure whether the duration of their relationship meets the judicial test of longevity in order to allow the court to presume marriage and this legal gap brings the author to his second argument which is based on purposive interpretation of s.122.


As discussed in the first chapter, the rationale behind s.122 is to protect the matrimonial harmony between the spouses. This is possible only when the parties have mutual trust and by making the communication between spouses privileged, it was believed that the discussion between the spouses would be franker and more honest and thereby achieve the aim of marital harmony. The principles behind live-in relationship are based on the freedom of the parties to choose which rights they want to be bound by, which would not be possible under existing personal laws. However, the need for harmony and trust in personal relationship still forms an important aspect of live-in relationships and thus, adopting a purposive interpretation, the marital privilege under s.122 should be extended to people in live-in relationship as well. Further, rather than relying on judicial precedent, amendments to the existing provisions can be made in order to make the law more certain. Such an amendment will lead to more certainty among parties with regards to their rights. This has been done in England and some states in United States as well, from where the privilege originated.


The United Kingdom in 2004 introduced the Civil Partnership Act. The act provided that through the process of registration two people can become civil partners.[24] The eligibility criteria was that people should be over 16 years of age, unmarried and not within prohibited degree of relationship.[25] While initially, the act was enacted to provide marital rights to same-sex couples, the Supreme Court of the United Kingdom in 2019 held that people in opposite-sex relationship can also become civil partners.[26] This thereby, allowed people in live-in relationship to get legal rights earlier limited to married couple. Further, the UK Police and Criminal Evidence Act, in fact provides equal protection with respect to admissibility of evidence in case of spouses and civil partners under s.80.[27] This has been reinstated even though there have been demands to restrict the scope of marital privilege, which is considered anachronistic.[28]


In the United States, while all states do not have a uniform policy, the State of New Jersey inter alia, allows persons in live-in relationship to register themselves with the Registry to be eligible to claim certain rights and obligations.[29]


The system of registration thus can also be adopted in India on the lines of UK and the US, where the parties which want to have certain rights and duties towards each other without opting for marriage can do so. Under the registration system, the couple intending to claim the benefits, will have to file a declaration stating that they cohabit with each other, and would like the benefits of married couple to be extended to them. Further, the registration will be subject to the general rules of capacity and free consent. Once registered, this would allow the parties to claim the marital privilege available under s.122 of IEA and will be in consonance with the wider rationale behind granting them such privilege under the law of evidence in the first place. Further, Section 122 can also be amended to include certain criteria based on the Indra Sarma case, which the courts can refer to identify people who are married, specifically, for the purpose of marital privilege under the Indian Evidence Act. This would also allow the court to determine if the parties have entered a marital relationship only to defraud the judicial process and thereby prevent the abuse of the privilege granted.


In this chapter, the author analyzed the whether the marital privileges under s.122 can be extended to people in live-in relationship. However, as we can see that there is a gradual shift in the United Kingdom towards restricting the scope of marital privilege under their Evidence Act. The author will in the next chapter discuss certain issues that exist within the current scheme of s.122 and discuss the recommendations made by the 69th report by the Law Commission of India. This will help the author suggest some legislative changes, which bring the section in tandem with the demands of the modern justice system.


Marital Privilege: An Absolute Veil


In the previous chapter the author discussed how the marital privilege under s.122 of IEA can also be extended to people in live-in relationship. The author discussed the prevailing system in the United States and the United Kingdom and the judicial precedents in India. Based on this information and purposive interpretation of s.122 the author concluded that the marital privilege can be extended to people in live in relationship. This, however, leads to a larger question, Whether the current legal provision on Marital Privilege, representative of the needs of society? The author in this chapter will try to answer this question by highlighting the legal gaps in s.122 and practical issues which may arise in its application. Further, the author will suggest some legislative changes which can make s.122 more appropriate in its application.


Section 122 provides that Marital Privilege is subject to only two exceptions. Firstly, disclosure can be made in suits between the spouses or if one spouse is being prosecuted for crime committed against the other. Secondly, disclosure of marital communication can be made with the consent of both the spouses.[30] This is an aberration from laws on other privileges, which have been qualified. For instance, Section 126 provides for professional privilege, which can be violated in case the disclosure is made for any illegal purpose or any crime is committed by the client during the employment of the attorney.[31] This shows that the privilege under s.122 is virtually absolute since there are extremely limited grounds where it can be violated.

This wide language and import of s.122 can also lead to problematic situations. In the case of Fatima v. Emperor, the accused killed her child, however, due to marital privilege, the court could not admit the testimony of the accused’s husband, which would have been helpful in securing conviction.[32] Further, in the case of Nagraj v. State of Karnataka, wife’s testimony against her husband who had killed her sister was held inadmissible.[33] Further, in offences by the parents against their children, often the initial complaint is made to the parents of the minor who may then confront the accused spouse. However, given the current legal provision such conversation will lose it testimonial value because of the privilege under s.122. In these situations, we can clearly see that the marital harmony between the spouses has broken down, however, despite this the marital communication, which otherwise would be invaluable as evidence, remains inadmissible.


This problem in s.122 was also noted by the Bombay High Court in the case of Vilas Raghunath Kurhade v. State of Maharashtra, where it observed that accepting blanket ban on admissibility of communication between spouses has adverse effects, especially in pending cases under statues like NDPS and POTA. Further, the court while refusing to direct the government to take concrete actions, suggested that there was a need for increasing exceptions through legislative amendments to Section 122 to do complete justice.[34] This was also highlighted in the 69th Report of the Law Commission of India, which discussed that section 122 left scope for doubts and there was need for amending it.[35] The Law Commission report highlighted that, the existing provisions do not allow disclosures in cases where the interests of child of the marriage is involved. Further, Section 122 should also, as recommended by Law Commission, protect communications intercepted or overhead by a third party. Thus, to ensure that application of s.122 does not become a hindrance to justice, exceptions can be included through legislative enactment.


The author believes that privilege should be made witness-spouse contingent. This means that instead of the spouse who made the statement, it should be contingent upon the spouse, to whom the statement is made, to disclose the statement. This is also in consonance with the rationale behind s.122, since if the spouse agrees to disclose the communication made to her by other spouse, it means that the matrimonial harmony has already broken and there is no need for the privilege to continue. The principles of matrimonial harmony also break down in the event of divorce. This practice has been adopted in the UK as well.[36] It might be claimed that such a provision might lead to distrust in matrimonial relationship, since the spouse will always be unsure if his communication can later be disclosed in court. However, these fears are misplaced. Most people in the marital relationships do not communicate relying on the protection granted by law, in fact, most people are not aware of the privilege granted by s.122. Hence, introduction of provision limiting the scope of marital privilege till the subsistence of marriage will have limited impact on the objectives sough to be achieved by s.122. Finally, as discussed, in cases involving children the communication between spouses becomes extremely important for fair investigation. Thus, in offences involving minors the protection of s.122 should not apply. These provisions, if enacted, will ensure that the process of fair trial and investigation does not suffer, while at the same time the marital harmony in a relationship is protected by the law.

Conclusion and Analysis


Through the course of this article the author analyzed the legal provisions existing on marital privilege under s.122 of the Indian Evidence Act. In the first chapter, titled ‘Marital Privileges’, the author discussed the rationale behind s.122 and what is the scope of the privilege granted under section 122. The author also discussed the judicial precedents which discussed and defined the contours of marital privilege in India.


In the next chapter, titled ‘Broadening the Horizon: Marital Privileges in Live-In Relationships’, the author discussed the applicability of s.122 in case of live-in relationships. The author contended that the scope and rationale of s.122 would be preserved if the marital privilege was extended to live-in relationships. Further, the judicial precedents point towards the tendency of the court to presume existence of a marriage under s.114 of the Indian Evidence Act, if the nature of the relationship between parties is not “walk-in walk-out”. The author contended that persons in live-in relationship can be granted marital privilege under the existing provisions, however, legislative enactment on the lines of law in the United Kingdom will provide more certainty to the parties in the adjudication process.


In the third chapter, titled, ‘Marital Privilege: An Absolute Veil’, the author, further, critically analyzed the marital privilege under section 122. The author concluded that, the existing privilege under s.122 is absolute and there is a need for introduction of certain exceptions to marital privilege. The author suggested that the privilege can be made witness based and exception can be created in case the offence involves minors.



[ The author is a 3rd Year, VIth Semester student at NLU Delhi]


[1] Tanmay Amar, ‘Matrimonial Communications: Wedded to the Irrational’, (2005) Vol.17, Student Bar Review, pp. 59-72. [2] Anne N DePrez, 'Pillow Talk, Grimgribbers and Connubial Bliss: The Marital Communication Privilege' (1980) 56 Ind LJ 121. [3] Indian Evidence Act 1872, Section 126. [4] Ibid, Section 122. [5] Tanmay Amar, ‘Matrimonial Communications: Wedded to the Irrational’, (2005) Vol.17, Student Bar Review, pp. 59-72. [6]Doker v. Hasler, (1824) 171 E.M. 992. [7] 2nd Commission on Common Law Procedure Report, 13 (1853), as cited in 69th Report of the Law Commission of India, The Indian Evidence Act, 1872, 634 (1977), available at <https://lawcommissionofindia.nic.in/51-100/Report69.pdf>, last accessed on 5th November, 2021. [8] 69th Law Commission of India Report, The Indian Evidence Act, 1872, 634 (1977), available at <https://lawcommissionofindia.nic.in/51-100/Report69.pdf>, last accessed on 5th November, 2021. [9] Indian Evidence Act 1872, Section 122. [10]Anupram Yadav vs. State of Orrisa, 2020 Cri LJ 4861. [11]M.C. Verghese v. T.J. Ponnan, 1970 AIR 1876. [12]Col. S.J. Choudhary vs. The State, 1985 CriLJ 622. [13]Appu v. State, AIR 1971 Mad 194. [14]Nagraj vs. State of Karnataka, 1996 CriLJ 2901. [15]Bhalchandra Namdeo Shinde vs The State Of Maharashtra, 2003 (2) MhLj 580. [16]Payal Sharma vs. Superintendent, Nari Niketan Kalindri Vihar, Agra and others, AIR 2001 All 254. [17]D. Veluswamy vs. D. Patchaiammal, (2010) 10 SCC 469. [18]Indra Sarma vs. V.K.V. Sarma, (213) 15 SCC 755. [19] Indian Evidence Act 1872, Section 114. [20]Badri Prasad v. Dy. Director of Consolidation and Ors, (1978) 3 SCC 527. [21]S.P.S. Balasubramanyam vs. Suruttayan, 1994 AIR 133. [22]Alok Kumar v. State, 2010 SCC OnLine Del 2645. [23]Madan Mohan Singh & Ors vs Rajni Kant & Anr, (2010) 9 SCC 209. [24] Civil Partnership Act 2004, Section 2. [25] Civil Partnership Act 2004, Section 4. [26] Elizabeth Forbes, ‘Opposite-Civil Partnerships and What This Means for Your Scheme’ (2020) Linklaters Blog, accessible at < https://www.linklaters.com/en/insights/blogs/pensionlinks/2020/january/opposite-sex-civil-partnerships-and-what-this-means-for-your-scheme>, last accessed at 26th October, 2021. [27]UK Police and Criminal Evidence Act 1984, Section 80. [28] Richard Glover, Peter Murphy, Murphy on Evidence, (13th edn, OUP 2013) pp. 536-537. [29] Julia Cardozo, ‘Let My Love Open the Door: The Case for Extending Marital Privileges to Unmarried Cohabitant’, (2010) 10 U. Md. L.J. Race Relig. Gender & Class 375. [30] Indian Evidence Act 1872, Section 122. [31] Indian Evidence Act 1872, Section 126. [32]Fatima v. Emperor, A.I.R. 1914 Lah. 380. [33]Nagraj v. State of Karnataka, 1996 Cri L.J. 2901. [34]Vilas Raghunath Kurhade v. State of Maharashtra, (2011) 3 AIR Bom R 479. [35] 69th Law Commission of India Report, The Indian Evidence Act, 1872, 634 (1977), available at <https://lawcommissionofindia.nic.in/51-100/Report69.pdf>, last accessed on 5th November, 2021. [36]UK Police and Criminal Evidence Act 1984, Section 80.

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