As per Section – 5 , evidence may be given by party either to prove or to disprove a relevant fact or a fact-in-issue but the party cannot give any evidence of a fact which is irrelevant.

Even though Section – 5 enables a party to give evidence of any relevant fact or fact in issue , there are certain specific exceptions in the Indian Evidence Act which prohibit the giving of evidence

These provisions are enumerated under –

1. Section 25
2. Section 26
3. Section 121 -131

When two individuals are in a legally recognized relationship, they are not bound to disclose any details of the communication that happened between them by virtue of this relationship. Such a relationship is referred to as a protected relationship and this form of communication is known as ‘Privileged Communication’

It extends to a variety of legal relationships such as Attorney and Client, Doctor and Patient, Husband and Wife, Priest and Penitent and it also extends to the State in the form of State Privilege.

Section – 122. Communications during marriage

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.

Example –Suppose, the husband makes confession to his wife that he has committed a theft or murder of a person. The wife to whom the confession is made cannot be called to the Court and compelled to give evidence against her husband.

Section 122 gives protection to the communication during marriage on account of public policy and provides domestic peace and conjugal confidence between the spouses.

Marital privilege or spousal privilege seems to have originated from common law jurisprudence

The fundamental principle behind this privilege is mentioned in the case of S.J. Choudhary vs The State [1985 Crile 622], which was decided on 26 July 1984, where Justice Khanna observes-

“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”.

This concept is again echoed in English cases of Pringle v Pringle and Mercer v State. Thus, marital privilege exists because it is essential to preserve amity and sustain full confidence between a husband and a wife, therefore deeming the relationship of marriage as a sacrosanct institution and to some extent placing it above the concerns of justice.

Under Section 122 of the Evidence Act, a married person shall not be:

1) Compelled to disclose any communication made to him during marriage by any person to whom he is married; and

2) Permitted to disclose any such communication, except:
a)when the person who made it or his representative in interest consents or
b) in suits between married persons, or
c) in proceedings in which one married person is prosecuted for any crime committed against the other

For the purpose of invoking the privilege under Section 122, the following conditions have to be satisfied:

1) The communication must have been made during the continuance of the marriage: Any communication made either prior to the marriage or after the termination of marriage is not protected from disclosure. The privilege continues even after the marriage has been dissolved by death or divorce.

In Nagaraj v. State of Karnataka, [1996 Cr.LJ. 2901 (Kar.)], where an accused is alleged to have made an extra judicial confession to his wife about his raping and killing of her sister, the evidence of his wife was held to be inadmissible. A wife was not allowed to tell what her husband told her about a murder with which he was charged.

2) Only communications are protected from disclosure but not the acts or conduct: The ban of the Section 122 is confined to communications only. A wife can testify to the deeds of her husband of which she was the eyewitness. The conduct of a spouse is not protected and not privileged by Section 122.

In Ram Bharosey vs. State of UP [AIR 1954 SC 704],

The Supreme Court observed “The statement of the accused to his wife that he would give her jewels and he had gone to the house of the deceased to get them is inadmissible under Section 122. But the wife’s statement that the accused was seen in the early hours, while it was dark, coming down the roof of his house and that he went to the Bhusa Kothri and came out again and had a bath and put on the dhoti again is not inadmissible under Section 122 as it has reference to acts and conducts of the accused and not to any communication by him to his wife”.

3) The privilege operates only against the husband or wife but not against third person:- Neither the husband nor the wife can be compelled to give evidence in regard to matrimonial communications between them, nor can any one of them be permitted to disclose them. But nothing prevents a third person or a stranger from giving evidence of such communications between the husband and wife matrimonial communications can be proved by evidence of the over- hearers. Confession to wife in the presence of others was allowed to be proved by others.

4.) The privilege does not end after the termination of marriage: The privilege continues even after the termination of marriage. S.J.Choudharyv State, [1985 Cr. LJ. 622 (Del)], when a communication was between the accused and his wife after the wife obtained a divorce decree, it was held that the marriage 5 cannot be treated as subsisting after the divorce decree and hence the communication was not made during marriage so as to come within the protection under Section 122. A communication made to a woman before marriage would not bé protected. But when a communication is made by one of the spouses to the other during the communication of marriage, the privilege continues even after the marriage has been dissolved by death or divorce

Other Exceptions

1) With the express consent of the person who made the communication or his/her representative. If the spouse, who made the communication to the other party, gives his consent, the other spouse may be permitted to depose about he communication made during the marriage.

2) Crime committed against another: Matrimonial Communications cease to be privileged and not protected in suits between the husband and wife or in criminal prosecutions in which one spouse is prosecuted for a crime committed against the other spouse. The words “proceeding in which one married person is prosecuted for crime committed against the other” in Section 122 refers to such crimes as assault or bodily injuries, wrongful confinement etc. by one of the spouses against the other; there may be also other forms of crime but the gist of this exception is that it must be crime committed by one married person against the other; the question whether unlicensed pistol was in the possession of the husband or the wife cannot be said to involve any crime committed by one against the other; but the wife cannot be compelled to disclose what she was told by her husband (accused) in her conversation with him.