Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023 –Communications During Marriage (Section 128)

Introduction
The law of evidence recognizes certain relationships as deserving special protection, and marriage is one such relationship. Communications between spouses are presumed to be made in trust, confidence, and intimacy. To preserve marital harmony and privacy, the law grants a privilege to communications made during marriage.
Section 128 of the Bharatiya Sakshya Adhiniyam, 2023 embodies this principle by protecting spousal communications from compulsory disclosure in court.

Nature of Spousal Privilege
There are broadly three types of privileged communications under Indian evidence law:

1. Spousal privilege – Section 128
2. State privilege – Section 129
3. Legal professional privilege – Sections 132–134

Section 128 deals specifically with communications during marriage and is founded on the sanctity and confidentiality of the marital relationship.

Statutory Provision Explained
Section 128 provides that:

• Any person who is or has been married shall not be compelled to disclose any communication made to him during marriage by his spouse;
• Nor shall such person be permitted to disclose any such communication.

Exceptions
A married person may be compelled to disclose such communication in only two situations:

1. Consent
   • When the person who made the communication, or his representative-in-interest, consents to disclosure.
2. Proceedings Between Spouses
   • In suits between married persons themselves, or
   • In criminal proceedings where one spouse is prosecuted for an offence committed against the other.

Scope of Section 128
(a) Extent of the Protection

• The Section:
  • Prohibits husband or wife from disclosing marital communications;
  • Does not prohibit proof of the same facts by other independent means.
• The protection:
  • Extends to all communications, whether confidential or otherwise;
  • Applies only to communications made during the subsistence of marriage.
• The privilege:
  • Continues even after dissolution of marriage, annulment, or divorce,
  • Provided the communication was made while the marriage subsisted.

The rationale is that admitting such testimony would:

• Disturb domestic peace, and
• Undermine mutual confidence between spouses.

Meaning of “Communication”
​In M.C. Verghese v. T.J. Ponnan, the Supreme Court clarified the scope of the word communication:

• The term does not include correspondence (letters) produced and proved in court.
• When a letter is produced, it is the document itself that discloses the contents, not the spouse as a witness.

The Court identified two distinct branches of Section 128:

1. A married person shall not be compelled to disclose marital communications.
2. A married person shall not be permitted to disclose such communications without consent.

“To Whom He Is or Has Been Married”

• For the privilege to apply:
  • The communication must have been made during the subsistence of marriage.
• Communications made:
  • Before marriage, or
  • After dissolution of marriage,

are not protected, however confidential they may be.

• However, communications made during marriage remain protected even after divorce, due to the phrase “is or has been married”.

Representative-in-Interest

• A representative-in-interest means a person other than the spouse who claims through the spouse (e.g., legal heirs).
• Such a representative cannot waive the privilege for the purpose of disclosing marital communications.

Judicial ClarificationIn Baldev Singh v. Surinder Mohan Sharma, it was held that:

• The right to privacy extends not only to the matrimonial home but also to litigation relating to dissolution of marriage.
• A third party cannot intrude into marital privilege to advance his independent interests.

Exceptions Revisited (Note Form)Spousal communication may be disclosed only when:

• The communicating spouse or his representative-in-interest consents; or
• The dispute is:
  • Between husband and wife, or
  • A criminal prosecution by one spouse against the other.

Outside these situations, disclosure is strictly barred.

Object and Rationale of Section 128The object of Section 128 is to:

• Preserve marital harmony and trust;
• Protect privacy of spouses;
• Encourage free and honest communication within marriage;
• Prevent courts from becoming arenas for domestic disclosures.

The privilege is based on public policy, not merely personal convenience.

Critical AnalysisStrengths

• Strong protection of marital privacy
• Encourages trust and openness in marriage
• Prevents misuse of spousal testimony
• Continues protection even after divorce

Limitations

• May exclude potentially relevant evidence
• Requires careful judicial application of exceptions
• Does not protect communications made outside marriage

Conclusion
Section 128 of the Bharatiya Sakshya Adhiniyam, 2023 recognizes marriage as a protected relationship deserving legal confidentiality. By prohibiting compulsory or voluntary disclosure of communications made during marriage—subject to narrow exceptions—the provision safeguards domestic peace, privacy, and mutual confidence.
The law thus strikes a delicate balance between the needs of justice and the sanctity of marital relationships, affirming that some relationships are so fundamental that the law itself must stand guard over their privacy.