ABSTRACT:
The author argues that the concept of spousal privilege is extremely outdated and is actually doing more harm than good in the process of serving of justice. The paper aims to highlight how an immediate and effective change must be brought about in the evidence admission process of India with special relevance to section 128 of the Bharatiya Sakshya Adhiniyam,2023 (previously section 122 of the Indian Evidence Act).
The author will also elucidate with case laws and statistics how the doctrine of “spousal privilege” leads to the potential of the dispensation of justice being hampered by basing decisions on incomplete facts.
The author in this research paper shall also analyse pertinent issues such as those relating to child abuse and other forms of offences against close relatives of either of the spouses which can never be substantially proven or cohesively addressed unless evidence from the spouses are provided.
In the course of this research paper, the author will cover the history and rationale behind section 128, analyse its constituents and also put forward how it holds the potential to impede justice. Due and special emphasis will be placed on how the provision fails to justify the rationale. In the concluding section, recommendations will be proposed as a measure of reforming the evidence admission procedure.
The primary aim of this research paper is to highlight how spousal privilege is an outdated concept in the sphere of privileged communications and how there is an immediate need to review the relevant provision ( i.e. section 128) since the provision suffers from several infirmities.
INTRODUCTION
Spousal privilege or marital privilege, is a form of privileged communications and a legal concept wherein, a spouse will not be compelled nor shall be allowed to make communications that took place during the subsistence of marriage, public, except with the explicit consent of the other spouse or his agent thereto. There are only but two exceptions to this rule : Firstly, when the suit is between married persons and secondly, when one married person is prosecuted for any crime committed against the other. It would be interesting to note that the doctrine of spousal privilege continues to subsist even after the dissolution of marriage. Thus, communications between parties once married remains privileged communication until one of the three aforementioned conditions are satisfied.
The main rationale behind this doctrine can be understood in a two-fold manner. The lawmakers of the time were of the notion that spousal privilege must be enacted in India to preserve the sanctity and harmony in a marriage and the second reasoning can be seen as an extension of the concept that once married, two individuals become one entity.
Though the doctrine derives itself from English Common Law, the mention of this doctrine in India can be traced back to the case of S.J. Choudhary vs The State1, which was decided on 26 July 1984, wherein Justice Khanna observes that “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 than the disadvantage which may occasionally arise from the loss light which such revelations might throw on the questions in dispute hence all communications between them should be held privileged.” Thus, the need to sacrosanct relation and at times the need to place it above the ends of justice can be witnessed in the outlook of the Indian judicial system.
The rationale behind the doctrine is infested with infirmities and that is where a desperate need to review the same arises as will be discussed further in this paper.
LITERATURE REVIEW
To understand the need of the immediate review of the provision one needs to first delve into the nature of the privilege, the elements of the privilege and most importantly the rationale behind the privilege and only then it can be deduced why the doctrine as a legal concept is an outdated one that has lost its relevance in the modern legal framework.
The main sources that shall be reviewed in this article in an attempt, to elucidate these three concepts shall be as follows:
- BLACKSTONE'S CRIMINAL PRACTICE 1979.
- C MULLER & L.C KIRKPATRICK, EVIDENCE UNDER THE RULES 939.
- The various decided cases of Indian courts that now act as precedents.
NATURE OF THE PRIVILEGE:
As explained by Muller, spousal privilege can be divided into primarily two forms – (1) “testimonial privilege” encompasses all adverse spousal testimony and (2) “spousal confidences privilege”2 that prevents any form of testimony as to matrimonial communications made during the tenure of marriage. The primary difference between the two is how much of communication is protected between the spouses and as to whether the protection continues to exist even after the marriage itself ceases to subsist.
Testimonial privilege debars a spouse from testifying against the other spouse in the aspect or not only the communications that occurred between the two but also the acts of one spouse that the other witnessed. Testimonial privilege ends once the marriage comes to an end. This form of spousal privilege can be found in the English common law.
On the other hand “spousal confidences privilege” only covers the communications that has taken place between the married individuals and testifying in relation to acts that the spouse may have witnessed is not prohibited. However, this privilege is broader in the sense that it continues to exist even after the marriage has come to an end.
This very doctrine is followed in s.128 of the Bharatiya Sakshya Adhiniyam,2023 ( erstwhile, s.122 of the Indian Evidence Act, 1872) and has been upheld by the Indian courts in various different cases, some notable ones being, Ram Bharosey v. State3, and Bhakhandra Namdeo Shinde v. State of Maharashtra4,.
RATIONALE BEHIND S.128:
Evidence that may be relevant in a suit has been made inadmissible in certain cases and under certain conditions keeping in view public policy. One such instance is privileged communication between spouses. By the virtue of s.126, chapter IX of BSA,2023, there are certain suits in which spouses are competent parties, however, s. 128 has an overriding effect over s.126. As observed in the case of Ramchandra v. Emperor5, if spouses testify against one another or reveal sensitive marital communications, either under compulsion or voluntarily, it would create strife between the married parties and destroy or weaken the peace and mutual happiness on which marriage thrives.
The creates a clear juxtaposition between two conflicting public interests: the public interest that justice must be served at all means and crucial evidence to a case must not be concealed, and the public interest that the sacrosanct bond of marriage must be preserved, to ensure that the fabric of society and families remain intact. Amidst such conflicting interests, the interest of conjugal confidence has been given overriding effect by Indian jurists and legislatures 6.
ELEMENTS OF S.128:
S.128 classifies communications between spouses as privileged communications, however, if the same is overheard by another person, that person may and is competent to testify in court7. Much the same way if another individual comes to know of communications between the married parties by the way of letters, the same will be admissible as evidence in court 8.
S.128 also mentions three exceptions wherein one spouse may testify against the other in court:
- With the consent of the spouse against whom the testimony is to be given. In such a case, the consent must be expressed and not implied 9.
- When the two spouses are involved as parties in suits against one another. In this context, the term “suits” is a blanket term that refers to all legal proceedings between the two 10.
- Thirdly and lastly, when a spouse is being prosecuted for a crime against the other. In such a case it is presumed that the matrimonial harmony and is already shattered and the spouse who is the victim of the alleged crime, becomes competent to testify.
METHODOLOGY
This research paper uses a qualitative case study method to analyse the doctrine of spousal privilege in India, its effects and the relevance of the relevance of the same in the current socio-legal framework of the country. By conducting a thorough analysis of the legal effect of the doctrine through various decided cases, this paper aims to highlight the various infirmities that exist within the application of the doctrine and why there is an immediate need to review the provisions pertaining to this doctrine for the better and more just deliverance of justice in further cases that present themselves before the Indian courts.
RESULTS
The provision concerning spousal privilege is deeply infested with infirmities, some of which have been discussed in detail below:
i. Voluntary testimony:
The principle behind spiral privilege is to protect the sanctity and harmony of marriage. This justifies the reason as to why a spouse cannot be compelled to testify against the other in court, this would not only loosen the thread of the fabric of marriage but would also be emotionally taxing on the spouse to testify.
However, there is no valid reason as to why voluntary testimony by one spouse against the other would be inadmissible in court. If a spouse is willing to testify against their weeded partner, in court, it would be safe to assume that the confidence and the harmony in the marriage is already shattered and in such a scenario, the rationale behind S.128 fails to justify itself and thus emerges the need to review the provisions.
ii. Prohibition after marriage:
The rationale is unjustified in the sense that it imposes a bar on spousal testimony even after the dissolution of the marriage. This bar on testimony even after the marriage ceases to exist is arbitrary, since it would be safe to assume that there was already marital strife in the relation that ultimately led to its dissolution. If there is no marriage in existence, then there is no harmony to preserve and preservation of marital harmony is the principle rationale behind enacting s.128. in such a scenario, the rationale holds no ground and fails to justify itself which is why the provisions that are attached with the said rationale need an immediate review. This protection after the marriage has dissolved protects no harmony it only creates hindrance in the delivery of justice.
In the case of S. Choudhary v. State 11, the application of this provision was taken to the extreme. The accused in this case was married to the witness and then subsequently divorced. The witness started cohabitating with another man with whom she had established relation with during the subsistence of marriage. Coming into this knowledge, the accused murdered the man. All communications that had happened between the accused and the witness with regard to the accused’s jealousy over the other man was declared inadmissible evidence by court. The case is a striking example of how the application of the section 122 prohibition beyond marriage can lead to absurd situations.
iii. Cases pertaining to child abuse:
As heart-wrenching and horrifying as it may sound, it is the reality that moat children who are victims of any form of abuse are mostly abused by people they know or someone close to them. The nature of the abuse may be sexual or otherwise. What makes the situation much more sinister for children is that more times than once, the abuser is the child’s own parents. When children are abused by one of the parent, it is most natural that they will open up to their other parent. The parent will confront their spouse before taking the case up to the police or taking legal recourse. In such a case if communications between them is made inadmissible as evidence in court, it would be difficult to pass the correct order and ultimately the child will not get the just justice.
In the case of, Fatima v. Emperor12, the child was killed by the mother. The testimony of the father that would have helped convict the mother was declared inadmissible by the court by virtue of s.122 of the Evidence Act (now. S.128 of BSA). In the end, this doctrine detracted the ends of justice.
iv. When there is a crime against a close relative:
The exception to s.128 only allows testimony by the spouse to be admissible when there is a crime by one spouse towards the other spouse. However, this exception should also extend when a crime is committed by one spouse against a close relative, (for eg, the mother or father) of the other spouse. In most of these cases, testimony would be critical evidence and would be of paramount importance to convict the aggressor.
In the case of Nagaraj v. State of Karnataka13, the accused was charged with the murder and rape of his wife’s sister. He has confessed to his crimes in front of his wife, however, her testimony was declared as inadmissible evidence by court owing to the doctrine of spousal privilege.
In a similar case of Jwala Sahai v. The Crown14, the wife was prevented from testifying against her husband. The testimony would have helped convict her husband, of her sister’s husband. In such a case, the marriage was already irreversibly broken, once the husband killed his sister-in-law, this provision only served to protect him unjustifiably and the rationale was again not satisfied.
v. Special provisions to be made in respect to heinous crimes:
At times the public interest in prosecuting individuals accused of having committed heinous crimes like rape takes precedence over protecting the harmony in marriage. In respect of such cases, the testimonies by spouses should be made admissible in court.
DISCUSSION
After reading the nature of s.128, the rationale behind the policy, the extent of application of the provision and various infirmities that the provision suffers from, it can be safely deduced that there is a need and an immediate need to review the provisions relating to spousal privilege.
Some recommendations that would make the provision more relevant in the modern legal setting have been provided by the author below:
- Voluntary testimony by spouses should be made admissible evidence in court.
- Spousal privilege should cease to exist once the marriage in question itself ceases to subsist.
- If the cases pertain to abuse or crime against children of the spouses or close kin of the spouses, the testimony by the spouses should be admissible by the court.
- If one spouse is accused of having committed a heinous crime, the testimony by the other spouse should be admissible evidence in court, keeping in mind the larger public interest.
CONCLUSION
In the present day, s.128 of the Bharatiya Sakshya Adhiniyam remains an anachronism, whereby it expanses beyond its rationale and hampers the deliverance of justice by making crucial evidence inadmissible for little or no gain.
There is no reason as to why spousal privilege should bar voluntary testimony or as to why the privilege should extend beyond the days of marriage. Moreover, in innumerable instances serving of justice takes precedence over the preservation of matrimonial harmony for the greater good and if the offence is of such a heinous nature then the bond of marriage is inevitably broken whether the spouse is allowed to testify or not.
Thus, for all the reasons mentioned and discussed at length in this research paper, the author finally rests the contention that there is a need for immediate re-reading and review of the doctrine of spousal privilege and the provisions connected to it.