Does Section 122 of the Evidence Act need reform?

In light of the Kerala High Court's recent suggestion that Section 122 of the Indian Evidence Act be revisited, GAZAL PREET KAUR explains the court's rationale, the jurisprudential background of section 122, and why the provision mandates scrutiny.

—–

LAST week in a murder case, the Kerala High Court pointed that there is a dire need to scrutinize Section 122 of the Indian Evidence Act in context of "changing values governing human and familial relations". The division bench of the high court, comprising Justices K. Vinod Chandran and C. Jayachandran, directed the Court's Registry to send the copy of the judgment to the Secretary, Ministry of Law and Justice and Member Secretary, Law Commission of India.

The bench was hearing a matter where the accused Rasheed, murdered his employer named Noushad, the owner of a plywood factory, in 2015. The prosecution claimed that the accused murdered the victim on suspicion of an affair between his wife and the victim. In order to understand the motive of the accused, the court claimed that it needed to know the conversations that he had with his wife, which was apparently an argument about the victim, as per the wife. The admissibility of the conversation as evidence was challenged by the defence on the grounds of violation of section 122 of the Evidence Act.

The court in the present case wondered whether the principle of the sacrosanctity of communication in a marriage that underpins the section requires a re-visit. It said that in matters like the one that the bench was hearing, the greater good of society has to be kept at a higher pedestal. The bench said that it was time that more importance is given to the public interest than the happiness and peace of a marital relationship.

The court referred to the Bombay High Court's judgment in the case of Vilas Raghunath Kurhade vs. State of Maharashtra (2011); here too the high court had suggested the state government approach the Law Commission or the Union Ministry of Law and Justice with a proposal for amendment of section 122. The court had agreed with the submissions of the prosecution that in an age where the march towards the development of science and technology is unstoppable, conversations between spouses cannot be protected all the time and hence, they cannot be stopped from being produced as evidence without their consent. It also said that the section is becoming a setback to hundreds of criminal proceedings in India.

Treating matrimonial communication as privileged

Section 122 of the Evidence Act raises the subject of 'spousal privilege'. 'Spousal privileges' are usually of two kinds, 'testimonial privilege' and 'spousal confidence privilege'. Testimonial privilege prohibits a spouse from testifying against the other to testify in the court of law, whereas in 'spousal confidence privilege' protects the communication between spouses to be used against a spouse in the court of law. Section 122 provides the latter privilege to protect the sanctity of the private conversations between two individuals in wedlock.

Section 122 of the Evidence Act states that any married person cannot be compelled to disclose any conversation between them during the marriage. The disclosure can only be admissible as evidence if there lies a dispute or any proceeding where one spouse has to be held liable for an offence committed against the other. For a conversation to be admissible, it is necessary that both the spouses consent to its disclosure.

This section aims to recognize the value of marital confidence that a couple has under marriage and puts the conversation under the category of "privileged". Privileged communication is a communication in certain relationships that is protected by law. Marital communications are even protected when a marriage ceases to exist. In the case of S.J. Chaudhary vs. The State (1984), the Delhi High Court disallowed a woman from testifying against the accused even when the marriage between them had ceased to exist.

The importance to adhere to this section has been reiterated in landmark cases like Ram Bharosey vs. State of Uttar Pradesh (1954) and M.C. Verghese vs. T.J. Ponnan & Anr. (1968), in which the Supreme Court proclaimed that the disclosure of any conversation within a marital relationship without the consent of a spouse is extra judicial in nature and cannot be admissible.

In Ram Bharosey, the Supreme Court differentiated conversations between spouses from acts and deeds. The wife of the accused in the case had confessed to what she saw her husband doing in the morning. She said she saw him coming down from the terrace, taking bath and going to the middle house to get something. The court held that the confession of the wife in this case pertaining to what she saw him doing was admissible; however, the confession about where he went in the morning is extra judicial. A spouse is therefore allowed to confess about what act they saw the other committing.

The same views were reiterated by Allahabad High Court in Shahnawaj Akhtar vs. State of Uttar Pradesh (1991). The Allahabad High Court noted that the evidence that the wife produced in the court was regarding the act that the husband had done; the conduct of a husband in front of his wife cannot be put in the ambit of "conversation" under section 122 because the act was done "for the sake of doing, not for the sake of disclosure". Similarly, the Aurangabad bench of the Bombay High Court, in Bhalchandra Namdeo Shinde vs. State of Maharashtra (2003) took into cognizance the observations of a witness on the basis of what she saw her husband doing.

Also read: Prisoners have the right to unmonitored conversations with their spouses, says Madras HC

Rationale behind the protection of marital communication

The second report of  the Commission in Common Law Procedure in England that was submitted in 1853 said: "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 that the disadvantage which may occasionally arise from the loss of light which such revelations might throw on the questions in dispute…hence all communications between them should be held privileged." The report has been referred to multiple times to defend the spousal privilege of communications.

Sir L.H. Jenkins, Chief Justice of the Calcutta High Court, remarked in Nawab Howladar vs. Emperor (1913) that the bar to disclosure of private communication in marriage is based on a high import which no court can waive at will through technicalities. Since decades, the courts have tried to protect the institution of marriage in matters where evidence or testimony could shatter the marital relationship between a husband and wife apart. This is one of the reasons why section 122 is still applied in cases involving offences of grave nature. The idea is to prevent a spouse to stand at the cross-road where they may be forced to speak against someone who they have vowed to spend their lives with.

The courts have strived to protect the privacy that a married couple holds, even if one of them commits an offence. This rationale is still being used by the courts to prevent hurting the peace present in a wedlock. However, it must be noted that a spouse readily agreeing to testify the other has already abandoned the idea of shielding their own marriage; therefore, the court taking the onus on themselves to neglect the greater good of public interest in a crime, to protect this sanctity, is alarming.

Furthermore, it must be noted that acquiring the consent of someone who has committed an offence to waive this spousal privilege is very rare. Hence, this forces the court to not take the confession as evidence, which at times is very crucial for a case. Keeping the institution of a marriage on a higher pedestal than the vanishing cause of greater good in public interest in a criminal case is concerning. Had the person who is a part of this marital relationship actually cared to protect its sanctity, they would have tried to avoid committing an offence that was committed with mens rea.

The need for an amendment

The core idea of section 122 has been widely accepted as a spousal privilege since time immemorial. The rationale behind the protection of a marital couple's privacy through the application of this section is cogent. However, it must be noted that the acquiring consent of both the parties in marriage is at a fault. If a person is ready to confess against the other without undue pressure from the prosecution, this testimony should be permissible in the court. A person integral to the commission of crime will never consent for a confession against themselves. Therefore, this non-disclosure of material facts could be detrimental in dispensing justice.

Furthermore, the communication of certain issues like those pertaining to sexual harassment or sexual abuse of a child within the family of the spouse can never be addressed without the consent of the other spouse. Additionally, a married couple, having discussed fundamental information regarding a relative, may try to conceal the material facts by taking the defence of privileged communication. This compels the court to base its decisions on half-truths and unconvincing evidence. Disclosure of marital communications without the consent of the spouse can help the court in making informed decisions and bringing people to justice.

Not only this, the defence of protection of the sanctity of peace and happiness in a marriage is flawed. Section 120 of the Evidence Act allows a husband or wife to testify against the spouse and terms them as "competent witness". Had the law cared about protection of marital institution, it would have disallowed the spouse as a witness except in the cases of marital disputes or proceedings against the spouse. Testimonial privileges in a marriage that are no more applicable would have still been applied in the courts of law. The core arguments in favour of section 122 are over-ridden by the inclusion of section 120 in the Evidence Act. Therefore, the two sections provide a contrast when it comes to the issue of peace and harmony in a marriage.

An amendment that allows to not give away a couple's privacy in the hands of law but also take care of the greater good of those who have been the victims of crime, must be brought into the picture. The courts need to back public interest as well instead of taking on the mantle of protecting the institutions of marriage. In cases where the marriages cease to exist, the communications are still protected under section 122. Therefore, some fundamental questions arise: which institution is the law trying to protect? Why is a voluntary testimony against the accused not admissible even when the marriage fails to exist? It is crucial that these are answered. The Kerala High Court's concern is justified and must be pondered over.

(Gazal Preet Kaur is a fifth year B.A., LL.B. (Hons.) student at the Rajiv Gandhi National University of Law, Patiala, Punjab, and an intern with The Leaflet. The views expressed are personal.)