This article is written by Aayushi Swaroop, 3rd Year student, NUSRL, Ranchi.
A society takes profound interest in preserving the peace of families. The reason being that within marital relations, the sense of intimacy strengthens the rationale of autonomy and privacy which in turn leads to openness between the partners. This is safeguarded by the presumption of non-disclosure and the observance of confidentiality. It is therefore that the law declares all communication between the husband and the wife to be incompetent matter for either of them to disclose in the Court as witnesses.
‘Privileged communication’ is the kind of information which is inadmissible in the Court of Law as evidence due to the protected nature of the relationship the two people in the communication share. The importance of privileged communication was echoed in the case of S.J. Choudhary v. The State.
Section 122 of the Indian Evidence Act, 1872 (hereafter ‘the Act’) was incorporated in the public interest. The Supreme Court in the case of M.C. Verghese v/s T.J. Poonan passed a landmark judgment relating to the privileged communication between the husband and the wife which according to the author is not in compliance with the very object with which the provision was inserted.
M.C. VERGHESE V/S T.J. POONAN: TRACING THE BACKGROUND
The present case addresses the issue: whether a letter given by the husband to the wife which contains defamatory matter concerning the father-in-law (wife’s father) could be proved in an action by the father-in-law against his son-in-law.
The Kerala High Court held that the letters could not be proved in the Court to the prejudice of her husband because such communications are precluded by law. Ponnan, was thereby discharged.
However, the Apex Court reversed the decision. The Court advanced that Section 122 of the Act prevents disclosure of only those communications that have been exchanged between the husband and the wife, i.e. if Rathi approaches the witness box to deliver as evidence ‘the communications made to her by her husband’, the same shall be prima facie deposed unless Ponnan consents to it. However, the Court found that, herein, the letters were in the possession of Mr. Verghese and therefore were available for being tendered in evidence and that the same can be proved in any other manner.
The rationale that runs through the Court’s judgment is that a document that is privileged is not necessarily inadmissible. Once a privileged document falls in the hands of the opponent, he may tender it as evidence at the trial as the opponent does not need to compel the disclosure of the evidence; the evidence is already in his possession.
CAREFUL EXEGESIS OF SECTION 122
There exist two kinds of spousal privileges: firstly, ‘testimonial privilege’ which bars all adverse spousal testimony. It applies only when the parties are married to each other at the time when the testimony is sought. Secondly, ‘spousal confidences privilege’ which preserves only the communications made during marriage. It usually protects spousal communications for forever. Section 122 of the Act engulfs the latter concept.
Aforementioned Section has been incorporated to guarantee that spouses may rely on the confidence of the marriage relationship where they are so inclined. This ultimately lands up in serving the public interest.
However, ‘spousal confidence communication’ is not an absolute privilege and is subject to the restrictions that: firstly, when the spouse who made the communication consents to the disclosure; secondly, when the harmony in marriage has already dissolved. This exception arises where the spouses are involved in a suit against each other. Thirdly, when one spouse is being prosecuted for a crime committed against the other.
Section 122 could be regarded as preemptive remedy wherein the idea is to prevent the evidence from being adduced at the trial. The ‘privilege’ acts as a waiver. Till the time the waiver subsists, evidence cannot be admitted in the Court of Law. So in a case where the evidence has been tendered and there is no law that supplants the waiver, the recourse available for the Court is to either exclude it or expunge despite the evidence being admissible. And whether the law should exclude or expunge evidence of a privileged matter must cohere with the consequence which it attaches to a wrongful reception of the evidence.
The judgment of the Supreme Court in the present matter was in held in defiance with the true interpretation of Section 122 of the Act on the following grounds: Firstly, the passing of the letter by the wife to the opponent was not done with the consent of her husband. In law it is one thing to possess, another to be in possession as has been enshrined in the Latin maxim alind est possidere, alind esse in possession. Therefore, In the present, had the letter come to the observance of the opponent in any manner other than the wife disclosing it to him without the consent of her husband, the same would have been admissible despite being a privileged communication.
Secondly, upholding of the appeal was abruptly based on the ground that the letter in the possession of the opponent was admissible. It is submitted that though the ‘privilege’ does not affect the admissibility of the evidence, yet it is an important qualification for it. Therefore the Court needed to decide whether the evidence should have been completely excluded or set aside for want of being a ‘privileged communication’ as per the principle of fairness.
Since in the present case the waiver of spousal confidence privilege was intact, despite the letter being tendered by the opponent, it should have been kept aside or completely wiped out.
Law recognized the Latin maxim adjuvari quipped nos, non decipi, beneficio oportet which means that we ought to be helped by a benefit, not to be entrapped by it. Marital privilegeexists because the relationship of marriage is a sacrosanct institution and to some extent is placed above the concerns of justice, deeming it necessary to safeguard the confidentiality between husband and wife.
In the present case, the Apex Court tripped in considering firstly, that ‘privileged’ be considered as a qualification for testing the admissibility of the evidence which has been tendered by the opponent. In this regard it is also desirable that ‘principle of fairness’ be incorporated and recognized as a principle of law and not merely as matter of discretion under Section 122. The said principle would concern itself with fairness in the use of evidence wherea party would be prevented from tendering admissible evidence of a matter, over which his opponent could claim ‘privilege’.
Secondly, that Court defaulted in seeing the broader picture that Section 122 of the Act portrays. Passing the communication, directly into the hands of the opponent, by either of the spouse involved in the communication would defeat the objective of the particular provision. And if such evidence were not to pass any qualification test pursuant to a law or a rule, the harm caused by disruption of the peace within families would ultimately go against the public interest.
Hence, from the above analysis, it can be deduced that a ‘rule of fairness’ be incorporated under Section 122 as a strict measure to adjudicate upon the qualification of an admissible evidence.