PROTECTION WHEN NOT APPLICABLE FOR COMMUNICATIONS DURING MARRIAGE - EXCEPTION TO SECTION 122 OF THE INDIAN EVIDENCE ACT

       Before moving on to comprehending the exceptions to Section 122 of the Indian Evidence Act, 1872 it becomes quite essential to first understand what this section encompasses to itself. Section 122 of the Indian Evidence Act incorporates the privileged communication between a man and wife in a marriage and secures the communication from any disclosure. This section talks about one of the privileged communication from the lot as incorporated between section (122 – 129).Hence, it becomes imperative to understand that privileged communications are the conversations or the certain matters which can neither be compelled nor disclosed by a witness even if he wishes to do so. It is a protection granted by the law for certain communications. This section rests on a sole fundamental ground that if the communication between a man and his wife are disclosed it would result in unrest, commotion, turmoil and domestic turbulence among the members of the family hence shaking the entire system of mutual trust, faith and confidence which is in fact one of the vital prerogatives of the family setup.

     However, it is to be kept in mind that though this section guarantees protection from disclosure of privileged communication between husband and wife it also carries with it certain exceptions which determines the fact that the protection under this section is not absolute as it guided by certain restrictions and exceptions.

Exception to section 122:

1. When any one of the spouse consents to the disclosure of the communication then this is known as the waiver of privileged communication. When a party consents to such disclosure then the protection guaranteed under this section is not attracted.

2.This section is not applicable when the parties are contesting against each other is a suit or a criminal proceeding as the fundamental purpose of mutual confidence between the partners perishes when they are raged against each other.

3. Any communication made prior to the marriage or after its dissolution cannot be protected under this section. Refer to case Mc Varghese v/s T.J Ponnan (AIR 1970 SC 1876)

4. Any act which does not form a part of the communication can be compelled or disclosed as a testimony.

5. Any communication or a conversation being made by a husband and wife in the presence of a third person or being overheard by the third person can be testified. However, a clear demarcation needs to be drawn when ascertaining as to the communications being overheard and the giving of testimony on the basis of letters, documents….Etc. The letters, documents...Etc as the part of a confidential information of privileged communication must not have been achieved surreptitiously without the consent of the parties. Absence of the consent renders the evidence inadmissible in the eyes of the law with respect to documents, letters etc.

Contributed by,

Maitreyi Raghuraman