Faculty of Law, Aligarh Muslim

University

2021

Law of Evidence
(GCT-2 Assignment)
On
‘Privileged Communication: Section 122 & 123 of the Indian
Evidence act’

Submitted to
Prof. Javaid Talib

Submitted by
Shrishti Thenuan
19BALLB013
BA LLB VI Semester (Section A)
Enrolment No.- GK1816
 Synopsis

1. Introduction

2. Definition

3. Section 122

4. Exceptions

5. Section 123

6. Unpublished official records

7.Privileged communications under companies act

8. Right to privacy & privileged communications

9. Privileged communications in other countries

10.Conclusion

11. Bibliography
 Introduction
Evidence plays an integral part in a trial as it helps in reaching a conclusion and
deliver a judgement. Evidence can be oral, documentary or in electronic form. A
witness can be testified on any event that he has seen or heard.

Certain communications are protected and cannot be adduced as evidence. These

are known as privileged communications. Let us learn more.

Privileged legal communications are confidential conversations that a witness

cannot be compelled to disclose, even though the communication is related to
relevant facts. The court cannot force a witness to disclose such interactions.

Privileged communication is a form of communication in which two or more

individuals are in a legally recognized relationship. By this protected relationship,
they are not bound to disclose any details of such communication. To protect the
sanctity of such relationships, these communications may not be disclosed to any
third party or used as evidence in a court of law. The Indian Evidence Act, 1872
recognizes the following as privileged communications; Spousal communication
(between husband and wife), Professional communication (between advocate and
client), State communication (unpublished records of state affairs), etc.
Definition
Privileged Communication refers to the confidential conversations or interactions between two
parties who are in a legally recognized protected relationship. The information cannot be
leaked to any third party, not even in the Court. Law can never force an individual or a
corporation to disclose the contents of privileged communications.

Illustration:

• ‘A’, the husband and ‘B’, the wife are undergoing a rough patch in their
matrimonial life.
• ‘A’ decides to transfer all his property to C via his will and only his lawyer knows
about this. If B ever asks A’s lawyer to disclose it, the lawyer can’t tell as it is a
privileged communication.
• He can tell only if A gives consent to do so or A himself discloses to a third party.

Section 122 of Indian Evidence Act

• Section 122 of the Indian Evidence Act reads as follows-
• “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.’’
• 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, 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.” 1

1
The Indian Evidence Act 1872 (Act 1 of 1872)
 • 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.

Exceptions to section 122

• Acts or conducts apart from the communication can be disclosed.

In the case of Ram Bharose v. State of U.P., the husband was accused of theft of jewellery
which he had gifted to her wife. He told his wife that he had obtained it from her previous
home. The wife in the Court discloses the conduct of the accused that he had seen her husband
coming down from the roof and after taking a bath gifted it to her. Court held that the wife
could testify as to the conduct but not the conversation.

• If the party who made the communication consents to its disclosure i.e. waives the
privilege, then the evidence of privileged communication can be given.

• In Suits or criminal proceedings between the two spouses.

• Communications made before marriage or after dissolution of marriage.

The landmark judgement of Nagraj Alias Kumar v. State of karnataka, the Court observed that
even though Section 120 of the Evidence Act permits a spouse to tender evidence against the
other spouse except in suits or criminal proceedings between the two spouses. Section122
makes it clear that privilege extends to all communications, the said communication does not
need to be confidential. Only spouses who made the communication can waive it and not the
witness as the privilege doesn’t extend to them. Even the Court cannot permit the witness to
disclose even if he/she is willing to share. It is incumbent to ask for the consent of the party
against who the evidence is being given under Section122 of the Evidence Act2.

In another landmark case of M.C. Verghese Vs. T.J. Poonan and Anr., the Supreme Court held
that only communications that took place during the marriage are protected under the privilege
mentioned in Section 122 of the Evidence Act. The protection continues even after the
dissolution of marriage or the death of one of the spouses. Communication before the marriage
or after the dissolution of a marriage doesn’t come under the purview of sec 122.

2
S.J. Choudhary vs The State 1985 Crile 622
 • The alternate origin of this law can be traced back to the medieval times when the wife
was considered to be the property of the husband and the concept of husband and the
wife being a single entity was prevalent. The US supreme court in Trammel v. United
States observed-
• “Spousal testimony privilege sprang from two canons of medieval jurisprudence: first,
the rule that an accused was not permitted to testify in his own behalf because of his
interest in the proceeding; second, the concept that husband and wife were one, and
that since the woman had no recognised separate legal existence, the husband was that
one. From those two now long-abandoned doctrines, it followed that what was
inadmissible from the lips of the defendant-husband was also inadmissible from his
wife.”
• They interpreted wife as a belonging of the husband, and not another human being with
an identity of her own, and since self-incrimination does not lead to conviction and is
not admissible in the court, the idea was that a person’s property cannot testify against
the owner of the property, and because the wife was indistinguishable from the
husband, any incriminatory statement by the wife against the husband would be
considered self-incriminatory.

• Section 122 of the Indian Evidence Act protects every communication between the
spouses, during the time of marriage, and prevents it from being brought to court as
evidence. Although, section 122 of the Indian Evidence Act may seem to be very rigid
at a first look, but it has some exceptions to it, such as not protecting the spouse if the
spouse is accused of an offence against the other spouse. The Supreme Court has also
held that section 122 will be applied to every communication made during the life of
marriage and the same privilege will continue even after separation or divorce or
dissolution of the marital relation, but only for the communication which was made
during the existence of marriage. It also allows the conduct influenced by the
communication, or the spouse witnessing the other spouse doing a criminal act, to be
admitted as evidence in the courts, i.e. an effect of the communication can be brought
to court but not the communication itself. Therefore, the conclusion that can be reached
to, is that marital privilege exists because of the relationship of marriage being
considered the foundation of the society and it is vital to protect the intimate
relationship of a husband and wife.3

• One of my concerns with the law that currently is in place is that the courts don’t look
at the motive behind the marriage or the stability of the marriage. According to me,
these are important factors to look at before not allowing evidence under section 122.
As the intent of the legislation was to protect the harmony in a relationship, so a
relationship which is already non-harmonious should not be considered under this
section.

3
Trammel v. United States 445 U.S. 40
 • The position in the United States of America on spousal privilege is different from that
in India. Spousal privilege in USA, is divided into two kinds of privilege, namely the
marital confidences privilege and the spousal testimonial privilege. The marital
confidences privilege does not allow the testimony to come in as evidence and directly
disqualifies it whereas spousal testimonial privilege allows the testimony of the
defendant’s spouse to come in as evidence only if the spouse of the accused wants to,
but it does not allow the defendant to prevent the spouse from testifying. This
classification is important as even though courts cannot compel a spouse to testify
against the other spouse but if the spouse wants to testify he/she can and it benefits the
truth finding process.

• In 1995, it was held in the case of United States v. Acker that marital privilege only
applies to people who are legally married and not to people who are cohabiting without
a legal marriage.[8] But now after twenty-three years, with both the Indian as well as
the English courts numerous rights being conferred upon people who are in a live-in
relationship, this privilege could be extended to those relationships. In live-in
relationships, the level of intimacy is at the level of that of a marital relationship, but
the only thing lacking is a valid marriage in the eyes of law. Indian courts of law have
recognised live-in relationship to be a valid marriage if the couple has stayed together
for a long period of time, and the burden of proof is on the person claiming it to be an
invalid marriage.[9] The courts have also granted women who are in a live-in
relationship, the right to maintenance if they are deserted by the man. They also now
consider the child born out of a live in relationship as a legitimate child. The courts
have also started interpreting right to live together in the ambit of right to life. In the
most recent judgement the apex court has given 5 categories of live in relationships
which can be considered by the court.

• It seems quite clear from the progressive nature of the courts in granting rights to
couples living in a live-in relationship and considering a live-in relationship equivalent
to a marriage that court would apply the privilege on them too. Also, since the original
purpose of the law is the protection of harmony in a relationship, it might seem like the
courts will be inclined to extend marital privileges to live-in relationships soon. In
doing so the courts open the doors to hinder the truth-finding process and obstruction
of justice as people could just pose as couples and then not testify against the other. To
resolve this issue, there must be a process of registration, where government can
scrutinise the application thoroughly and then decide if they match the criteria, where
the live-in relationship can be deemed as a marriage and thus can be under the ambit
of section 122.4

4
M.C. Vergliese V T.J. Ponnam Air 1967 Ker 228
 • To conclude, I feel that Section 122 of the Indian Evidence Act has a very valid reason
to exist, but there are some loopholes present which need to be filled. We must also look
at the laws relating to spousal and marital privileges which are in place in other
countries like the USA, and learn from them and also come up with our own innovative
ways to keep up with the times.

Section 123 of Indian Evidence Act

No one shall be permitted to give any evidence derived from unpublished official records
relating to any affairs of State, except with the permission of the officer at the head of the
department concerned, who shall give or withhold such permission as he thinks fit.5

Section 123 is basically founded on the maxim salus populi est suprema lex, which means
that regard for public welfare is the highest law. This section lays down that no person shall
be permitted to give any evidence derived from unpublished public records relating to affairs
of state. Such an unpublished record can be had of from the official head of the department
concerned, who may also withhold the permission in case of necessity. The section also
prohibits the disclosure of any evidence derived from unpublished official records.

Under the section unpublished official records of the state are protected from being
disclosed. Only exception laid down is that such unpublished document may be disclosed with
express permission of the head of the department. “The court is also bound to accept without
question the decision of the public officer.”

Section 123 has to be read with Section 162 to ascertain whether any claim is made by the
state in respect of any document and whether the document belongs to the privilege class.
The second question is whether the disclosure of the document would cause injury to the
public interest and fall within the discretion of the head of the department concerned. It was
considered by the Supreme Court in S.P. Gupta v President of India1 and held that if the
disclosure of the contents of the document was injurious to public interest and that the
document belonged to the state which should not be disclosed to secure proper functioning of
the public service.

5
The Indian Evidence Act 1872 (Act 1 of 1872)
Unpublished official records:

According to the section unpublished official records are not permitted to be disclosed except
with the permission of the head of the department concerned. Naturally, no question in this
regard can be raised in the court of law. But, whether a document falls within unpublished
official records may be decided in accordance with Section 162 of the Evidence Act. When
Section 123 is read with Section 162 “the effect is that the final decision whether the
permission should be granted or not should be with the court. About the power of the court to
inspect the document, there is residual power of the court to decide whether its disclosure
would be injurious to public interest.

In order to claim immunity from disclosure thereof the document must be unpublished state
documents and must relate to affairs of the state and the disclosure thereof must be against
interest of the state or public interest. Under section 162, the rest documents can be inspected
by the court to examine the privilege claimed that the disclosures would injure the public
interest. After inspection, the court is free to disclose either whole or in parts, provided that
will not to give a distorted or misleading impression of the document.6

An objection against the disclosure of a public document was raised on the ground that it
would be against the interest of the state or public service and it is such class of documents
which being public interest ought not to be disclosed. In S.P. Gupta v President of India,
overruling its earlier decision the Supreme Court Observed that the injury to public interest
which is likely to result from their disclosure would be far less than the injury which would
arise from suppression of such information. Public interest, the very foundation for
protection against disclosure under section 123 and which was protected by the Supreme
Court. State of Punjab v Sodhi Sukhde Singh case has acquired new dimension in S.P. Gupta
case. For the purpose of non-disclosure of documents relating to the affairs of the state, the
immunity claimed by the State under section 123 is not absolute. According to Their
Lordships’ view “it is not the rule of law to be applied mechanically in all cases. In case of
necessity the court can compel the production of such documents for fair administration of
justice because the public interest immunity are not applicable in India.” It is court to decide
what kinds of documents can be handled only by person bound by oath of secrecy. Whether
any document relates to the affairs of the state has to be determined in each case on the basis
of the relevant facts and circumstances adduced before the court. Because, public welfare is

6
Ratanlal and Dhirajlal, ‘The Law of evidence’ (Lexis Nexis, Haryana, 27th edn.)
the highest law. The Supreme Court seems to be in favour of revitalization of the privilege
when it considers whether the ministerial advice falls within the justiciable area. “Since the
court would be precluded from calling their disclosure but the Article 74(2) of the
Constitution is no bar to the ministerial advice was based.

Privileged communication under the Companies Act, 1956

Usually, the job agreement and bylaws of a company make it obligatory to keep
communications confidential. Section 251 of the Companies Act, 1956 (now Section 227 of the
Companies Act, 2013) states that a legal adviser, a banker of any company, a corporate body
should not be required to disclose any privileged communication to the Central government,
inspector or registrar appointed by the Central government.

Right to privacy and Privileged Communication

Article 21 of the Constitution of India states, “No person shall be deprived of his life or
personal liberty except according to the procedure established by law”, it has an encyclopedic
ambit. It covers all aspects of life, one of which is Privacy. Right to privacy isn’t expressly
written in the Indian Constitution but overtime judicial proceedings have shown that it comes
under the ambit of Article 21.

The law safeguards the right to privacy by protecting from the disclosure of privileged
communication. It takes away the evidentiary value of confidential communication.

Section 122 of the Indian Evidence Act interdicts married couples from disclosing any
confidential communication which happens during the marriage. Similarly, sections 126 to 129
of the Evidence Act deal with attorney-client privilege. The concept of privileged
communication strengthens the fundamental right to privacy.

Moreover, laws like Rule 7 and 15 of the BCI Rules on Professional Standards for attorneys
and Rule 4.14 and 4.17 of The Indian Medical Council (Professional Conduct, Etiquettes and
Ethics) Regulations, 2002 for medical practitioners bars the disclosure of privileged
communication. Violation of any of these laws is an automatic violation of the right to privacy
under Article 21 of the Indian Constitution.

In the case of Vishal Kaushik v. Family Court7, the Court held that if the conversation between
two spouses is recorded by one of the spouses without the knowledge of the other spouse, that
evidence will not be admissible in the Court. In fact, this act will amount to a breach of privacy
under Article 21 of the Indian Constitution and the spouse who has recorded will be held liable.

7
AIR 1976 SC 675
Privileged communication in other countries

In both the USA and UK, privilege is a fundamental right which is used as a safeguard tool by
the individuals and corporations from disclosing any privileged communication.

United Kingdom (UK)

Broadly there are two types of privileges in the UK to protect communication between lawyer
and client:

1. Legal advice privilege- This includes only written or oral confidential

communications between a lawyer and a client that provide, seek or receive legal
advice. The term lawyer here doesn’t include tax advisors or accountants but it does
include in-house counsel.
2. Litigation privilege- This includes written or oral confidential communications
between a lawyer and a client or either of them and a third party that provides, seeks
or receives legal advice in connection with the proceedings of a case.
A lawyer can’t waive the privilege without the consent of the client.

Legal professional privilege can be waived in the following cases-

• If the document loses its confidentiality

• The document came into being for a criminal or fraudulent scheme
Unlike in India where an act of illegal nature can be disclosed, in the UK the act must be of
criminal nature and not merely of illegal nature.

United States of America (USA)

There are three areas of law that are covered under the Legal professional privilege-

1. Rule of Confidentiality- without the consent of the client or other applicable

exceptions, a lawyer can’t disclose the confidential communication that occurred
between him and the client or client’s representative.
2. Attorney-client privilege- this rule prevents disclosure of confidential
communication made in furtherance of obtaining legal services specifically judicial
proceedings.
3. Work Product Doctrine- it protects the disclosure by the opposing counsel of
material that has been prepared in anticipation of litigation.
The privilege can be waived under various circumstances, there are no specific terms.
Example- in case of intentional or unintentional waiver of privilege.

Singapore
Legal privilege is of two types-

1. Legal advice privilege- This includes only confidential communications between a

lawyer and a client or lawyer and client’s agent that provide, seek or receive legal
advice. This doesn’t include communication between a lawyer and a third party
unless the third party is acting as a client’s agent.
2. Litigation privilege- This includes confidential communication between a lawyer
and the client and also a lawyer and a third party, even if the third party isn’t acting
as a client’s agent that provides, seeks or receives legal advice where there is a
legal prospect of litigation.
It does include communication with the in-house counsel also.

Australia
Legal professional privilege is derived from legislation and common law. Privileged
communications between a lawyer or lawyers and the client for the purpose of providing legal
advice or professional legal services regarding a Court proceeding cannot be disclosed. It
includes documents also.

If the client acts in an inconsistent manner with confidentiality, it leads to an implied waiver
of the privilege.

In case of global privilege, the complexity increases as in one jurisdiction it may be granted
privilege protection whereas in another jurisdiction it may not be granted privilege.

Recent Cases
Preeti Jain v. Kunal Jain 2016 SCC OnLine Raj 2838

In this case, while deciding a writ petition the Court has stated that Section 65 B of Evidence
Act is not applicable to the evidence in the form of Pin Hole camera with a hard disk memory
on which a recording was done, as it was submitted as Primary evidence, since Section 65 B it
deals only with Secondary evidence. The present writ petition was filed by the wife challenging
the admissibility of the electronic record (Pin hole Camera, memory and recordings) filed by
the husband in a family court, along with the affidavit in evidence in support of the divorce
petition. The Court and also held that the privilege in respect of the husband and the wife’s
communication under Section 122 of Evidence Act would not attract in Family court
proceedings.
The Court observed while rejecting the contention of the wife that, “Section 65B of the Act of
1872 only deals with the secondary evidence qua electronic records. It does not at all deal with
the original electronic records, as in the instant case, where the pinhole camera, with a hard
disk memory on which the recording was done has been submitted before the Family Court.
The Supreme Court in the case of Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473 has held that
if an electronic record is produced as a primary evidence under Section 62 of the Evidence
Act, the same is admissible in evidence without compliance with the conditions of Section 65B
of the Act of 1872. That evidence would take the colour of primary evidence, subject no doubt
to its credibility based on forensic examination and cross examination.”
The single judge Bench comprising of Alok Sharma, J. observed that “Section 14 of the Family
Court Act, 1984 provides that a family court may receive any evidence, report, statement,
documents, information or matter which in its opinion will facilitate the effective adjudication
of the disputes before it, whether or not the same would be otherwise relevant or admissible
under the Indian Evidence Act, 1872. The aforesaid section therefore makes it pellucid that the
issues of relevance and admissibility of evidence which regulate a regular trial do not burden
proceedings before the family courts. It is the discretion of the family court to receive or not to
receive the evidence, report, statement, documents, information etc. placed before it on the test
whether it does or does not facilitate an effective adjudication of the disputes before it.” The
bench further observed “the privilege in respect of the husband and the wife’s communication
under Section 122 of the Act of 1872 would also not attract, as Section 14 of the Family Court
Act eclipses Section 122 of the Evidence Act in proceedings before the Family Court. Section
14 aforesaid is a special law, so to say, as against the general law, which Section 122 of the
Act of 1872 encapsulates vis-a-vis privileged communications between husband and wife.”

Mr Vilas Raghunath Kurhade & Another Versus The State Of Maharashtra SCC
Online 2019 Bom 55

The Supreme Court held that section 122 consists of two parts i.e. (1) that the married person
shall not be compelled to disclose any communication made to him during marriage by his
spouse and (2) that the married person shall not, except in two special classes of proceedings,
be permitted to disclose by giving evidence in Court the communication, unless the person who
made it, or his representative in interest, consents thereto.

Section 122 of the Indian Evidence Act , which provides for bar as to admissibility
in evidence of communication made during the subsistence of the marriage and the same
cannot be disclosed even, unless the person who made it or his representative in interest
consents.
 Conclusion
Privileged communication refers to confidential interactions between legally
protected people. One such communication is known to a third person, it loses
its privilege. According to the rule of privileged communication, a court of law
cannot ask an individual in this protected relationship to disclose any details of
this communication.

The foundation of this principle is to guard the trust that a client re-poses in an
attorney, patient in a doctor and spouses in each other. The law also provides
for punishment in case of its violation. However, this privilege is not absolute as
there are certain exceptions as well. It may be violated in various cases that
have either been specified in the statute itself or various instances by the courts
in Indian Jurisprudence.

Various legislations oblige the parties of a protected relationship (attorney-

client, doctor-patient, husband-wife) to adhere to the rule of privileged
communication. The foundation of this is to guard the trust that a client re-poses
in an attorney, patient in a doctor and spouses in each other. However, the
privilege is not absolute in nature, it is subjected to certain exceptions. The law
also provides for punishment in case of its violation.
Bibliography
➢ The Indian Evidence Act 1872 (Act 1 of 1872)

➢ Ratanlal and Dhirajlal, ‘The Law of evidence’ (Lexis Nexis, Haryana, 27th edn.)

➢ State of Orissa v. Damburu Naiko and Another, AIR 1992 SC 1161

➢ Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753

➢ State of Maharashtra v. Chandra Prakash Kewalchand Jain, AIR 1990 SC 658

➢ Mohan v. State of Maharashtra, 2019 SCC OnLine Bom 1407

➢ Rachna Singh v. NCT of Delhi, 2020 SCC OnLine Del 857

➢ Preeti Jain v. Kunal Jain 2016 SCC OnLine Raj 2838

➢ Mr Vilas Raghunath Kurhade & Another Versus The State Of Maharashtra SCC
Online 2019 Bom 55