After commission of an offence, the husband informed his wife as to the circumstances in which he has committed it. In the trial, the prosecution wants to produce the wife of accused as a witness to disclose what has been communicated to her by her husband. Is it permissible? Discuss.

Facts of the Case

After the commission of an offence, the husband informed his wife about the circumstances in which he committed the offence.

During the trial, the prosecution seeks to produce the wife as a witness to testify about what was communicated to her by the husband, with the intention of using it as evidence against him.

Issues in the Case

1. Whether a spouse can be compelled to disclose communications made by the other spouse?
2. Whether such communication is admissible under the Indian Evidence Act, 1872?
3. Are there any statutory privileges protecting spousal communication?

Legal Principles Covered to Support Case Proceedings and Judgements

A. Privileged Communications – Section 122, Indian Evidence Act, 1872

Section 122 provides:

Communication made during marriage by one spouse to the other cannot be proved against the person who made it, except in cases where the spouse is charged with an offence against the other spouse or the children of either.

Key Points:

• The rule protects marital confidence.
• It applies only to confidential communications during marriage.
• The privilege is for the benefit of the communicating spouse, not the witness spouse.

B. Exceptions to Privilege

• Section 122 does not protect communication in cases where:
  1. The offence is against the spouse making the disclosure
  2. The offence is against the children of either spouse
• In other cases, the spouse cannot be compelled to testify about such communications.

C. Related Provisions

• Section 133 CPC: Compulsory attendance of witnesses; however, privilege under Section 122 overrides compulsion.
• Section 125–126, Indian Evidence Act: Privileges for professional and confidential communications, similar in principle to spousal privilege.

D. Judicial Interpretation

1. R. v. Jhang (UK case applied in India)
   • Communications between husband and wife are privileged unless statutory exception applies.
2. State of U.P. v. Chandra Shekhar (1977)
   • Court recognized spousal communications cannot be used against the spouse in criminal proceedings, except for offences against the spouse or children.
3. Queen Empress v. Mst. Rukn-uz-Zamani (1885)
   • Reinforced the principle of confidential marital communications as privileged.

E. Application to Present Case

• The communication by the husband to his wife occurred during marriage.
• The prosecution seeks to use it against him in a criminal trial.
• The offence was not committed against the wife or their children, hence the privilege under Section 122 applies.
• Therefore, the wife cannot be compelled to testify regarding these communications.

Possible Judgement

The Court is likely to hold that:

1. The communication made by the husband to his wife is protected under Section 122 of the Indian Evidence Act, 1872.
2. The wife cannot be produced as a witness to disclose what her husband communicated to her.
3. Any attempt to use such communication as evidence against the husband is inadmissible.
4. The privilege ensures confidentiality in marriage and prevents misuse of spousal communications in criminal proceedings.

Final Conclusion

No, the prosecution cannot produce the wife as a witness to testify about communications made by her husband regarding the offence. Such communications are privileged under Section 122 of the Indian Evidence Act, 1872, and are inadmissible against the communicating spouse unless the offence is committed against the spouse or children.

About lawgnan

If you are dealing with a case involving marital communications, evidentiary privileges, or spousal testimony issues, understanding Section 122 of the Indian Evidence Act is crucial. Confidential statements made between spouses during marriage carry legal protection, and knowing how this privilege applies can significantly impact your case outcome. Visit Lawgana.in today to access reliable legal insights, expert explanations, and case-based guidance designed to simplify complex legal principles. Whether you are a student, professional, or litigant, Lawgana.in provides trusted resources to help you navigate Indian evidence law with clarity and confidence.