​Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023 –Competency of Husband and Wife as Witnesses in Certain Cases (Section 126)

Introduction
Although a husband and wife are bound by marriage, the law treats them as separate legal entities. An important question under the law of evidence is whether spouses can testify for or against each other in judicial proceedings. Section 126 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) answers this question by expressly declaring the competency of husband and wife as witnesses, subject to certain limitations grounded in public policy and marital privacy.

Statutory Provision Explained
Section 126 is divided into two distinct parts dealing separately with civil and criminal proceedings.
(i) Civil Proceedings – Section 126(1)In all civil proceedings:

• The parties to the suit, and
• The husband or wife of any party,

shall be competent witnesses.
This means that spouses may testify for or against each other in civil cases.

(ii) Criminal Proceedings – Section 126(2)
In criminal proceedings against any person:

• The husband or wife of such person shall be a competent witness.

Thus, even in criminal cases, a spouse is legally capable of giving evidence either in favour of or against the accused spouse.

Scope and Significance of Section 126(a)
Removal of the Old Common Law Bar

• Under early common law, husband and wife were treated as one legal person.
• As a result:
  • One spouse could not testify for or against the other.

Section 126 removes this outdated notion and recognises:

• The independent legal personality of spouses, and
• Their competence as witnesses in judicial proceedings.

(b) Husband and Wife as Competent Witnesses

• Spouses are often the best possible witnesses, as they are:
  • Closely associated with the facts, and
  • Likely to have direct knowledge of events.
• Even though spouses may be interested witnesses, the law prefers:
  • Testing their credibility through cross-examination, and
  • Seeking corroboration where necessary,
    rather than excluding their testimony altogether.

This approach enhances the court’s ability to discover the truth.

Section 126 Read with Section 128 (Spousal Privilege)
Although Section 126 declares spouses to be competent witnesses, this competency is not absolute.

• Section 126 must be read subject to Section 128, which:
  • Prohibits disclosure of communications made during marriage.

Thus:

• A husband or wife may testify as a witness,
• But cannot disclose marital communications, except in the limited circumstances permitted under Section 128.

This ensures a balance between:

• Truth-seeking in courts, and
• Preservation of marital confidence and privacy.

Accused Person as a Competent Witness

• An accused person himself is also a competent witness for the defence.
• This is governed by Section 353 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

Key Points

• The accused may choose to give evidence on his own behalf.
• If he chooses not to testify:
  • No adverse inference can be drawn against him, and
  • No comment may be made on his silence.

This flows from constitutional protections and principles of fair trial.

Concept of Privilege of Witnesses
Meaning of Privilege

• The privilege of a witness refers to the right to:
  • Withhold evidence on certain matters, even though the witness is otherwise competent.
• Privilege is based on:
  • Public policy, and
  • Interest of justice, not personal convenience.

Examples include:

• Judges and Magistrates (Section 127),
• Spouses (Section 128),
• Legal professional communications (Sections 132–134).

Competency vs Compellability
It is important to distinguish between:

• Competency: Legal capacity to testify, and
• Compellability: Legal obligation to testify.

Certain witnesses may be:

• Competent but not compellable, due to privilege (e.g., Judges, spouses regarding marital communications).

Thus, non-compellability arises:

• Not from incompetence,
• But from considerations of public policy and justice.

Object of Section 126The object of Section 126 is to:

• Modernise the law by recognising spouses as independent witnesses;
• Prevent exclusion of valuable evidence merely due to marital status;
• Enable courts to access the best possible evidence;
• Balance this access with safeguards under Section 128.

Critical Analysis
Strengths

• Removes archaic legal fiction of marital unity
• Enhances truth-finding by allowing spousal testimony
• Aligns evidence law with constitutional values
• Maintains privacy through spousal privilege

Limitations

• Risk of biased testimony due to marital interest
• Requires careful judicial evaluation and corroboration

Conclusion
Section 126 of the Bharatiya Sakshya Adhiniyam, 2023 marks a progressive step in evidence law by affirming that husband and wife are competent witnesses in both civil and criminal proceedings. By doing so, it rejects outdated common law restrictions and promotes effective adjudication.
At the same time, by making this competency subject to Section 128, the law preserves the sanctity of marital communications. Section 126 thus achieves a careful balance between truth, fairness, and marital privacy, strengthening the overall framework of witness competency under Indian evidence law.