Communications During Marriage — Husband and Wife (s. 128) — BSA (Law of Evidence) Notes

Communications During Marriage — Husband and Wife (s. 128)

In M.C. Verghese vs T.J. Ponnan (1970), a husband had written wounding letters to his wife during the marriage. Later the wife’s father tried to use those letters in a criminal case. The Supreme Court had to decide whether the marital privilege still applied. The case fixed the boundary the exam tests every year: s. 128 protects the communication, and the protection outlasts the marriage — but it protects the married person’s disclosure, and only what was said during the marriage.

Spouses confide in each other; if either could be dragged into court to repeat those confidences, marriages could not hold together. So s. 128 [IEA s. 122] throws a shield around communications between husband and wife.

What the section does. No person who is or has been married shall be:

compelled to disclose any communication made to him during the marriage by the person to whom he is or has been married; nor
permitted to disclose it — unless the person who made it (or his representative in interest) consents.

Two doors, one lock. The witness-spouse cannot be forced to reveal the confidence, and even if willing, cannot volunteer it — only the communicating spouse can unlock it by consenting.

Who holds the privilege. It belongs to the spouse who made the communication. The witness-spouse cannot waive it alone; consent must come from the maker (or his representative in interest).

How long it lasts. It survives divorce and death — “who is or has been married”. A communication made during the marriage stays protected even after the marriage has ended.

Now the three limits — this is where every mark lives:

It protects communications only, not conduct. What the spouse said or wrote is protected. What the witness-spouse saw the other do is not a communication and comes in as ordinary evidence. If a wife sees her husband come home bloodstained and hide a knife, she may testify to those acts — she is not disclosing a communication.
It covers only communications made DURING the marriage. A statement made before the couple married is not protected — there was no marriage to protect it. This is the single most-tested point, and the fact-pattern always plants a date before the wedding.
It falls away in two situations (the section’s own exceptions): (i) in suits between the married persons themselves, and (ii) in proceedings where one spouse is prosecuted for a crime against the other. Here the law’s reason for secrecy has already broken down.

🧩 WORKED EXAMPLE — the confession made before the wedding

Facts. A tells B in 1988 that she has committed theft of her neighbour’s ornaments. A and B marry in 1989. In 1992 A is prosecuted for that theft and B is called as a witness. Can B disclose what A told him?

Rule. Section 128 protects only a communication made during the marriage. A statement made before the marriage is outside the section.

Apply. A’s statement was made in 1988, a year before the 1989 marriage. At that time A and B were not married, so the confidence was never a “communication during marriage”. The later marriage cannot reach back and clothe it with privilege.

Conclusion. B can disclose the statement; s. 128 does not protect it. (Contrast: had A confessed after the 1989 wedding, B could neither be compelled nor permitted to disclose it without A’s consent.)

Decoy. “They are married, so everything between them is privileged” is the trap — the privilege attaches to the timing of the communication, not to the mere fact that the parties later married.

Section 128, BSA 2023: “No person who is or has been married shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.”

In Simple Terms: Whatever your husband or wife told you while you were married stays sealed — you cannot be forced to repeat it, and you cannot repeat it even if you want to, unless your spouse agrees. The seal lasts even after divorce or death. But it covers only words spoken during the marriage, not things you saw, and it lifts when the two of you are suing each other or one is prosecuted for a crime against the other.

flowchart TD
    ROOT["A communication between spouses is offered"]:::root
    ROOT --> Q1{"Was it made DURING the marriage?"}
    Q1 -->|"No — before marriage"| OUT["Not protected (s. 128 does not apply)"]:::diamond
    Q1 -->|"Yes"| Q2{"Is it a communication,<br/>or merely conduct the spouse observed?"}
    Q2 -->|"Conduct/acts observed"| OUT2["Not protected — ordinary evidence"]:::diamond
    Q2 -->|"Communication"| Q3{"Suit between spouses, or crime<br/>by one against the other?"}
    Q3 -->|"Yes"| OUT3["Exception — privilege lifts"]:::diamond
    Q3 -->|"No"| IN["PROTECTED — no compulsion, no disclosure<br/>without maker's consent; survives divorce/death"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    classDef diamond fill:#FDECEA,stroke:#B22222,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

M.C. Verghese vs T.J. Ponnan (1970) — the privilege under s. 122 IEA (now s. 128) protects communications made during marriage and continues after the marriage is dissolved; but it bars only disclosure by the spouse, and the communication is not otherwise made inadmissible for all purposes.
Ram Bharosey vs State of Uttar Pradesh (1954) — acts and conduct of the husband observed by the wife (his movements, what she saw him do) are not “communications” and are not protected by the marital privilege; only what he told her is.
Nawab Howladar vs Emperor (1913) — a communication made during marriage remains privileged even after the death of one spouse; the protection does not die with the marriage.

📄 Full notes + Question Bank (₹199) — every topic in depth, model answers to all past KSLU questions, in one printable PDF. Get the bundle · 10 Solved Problems · All BSA (Law of Evidence) topics