When a witness cannot be dissuaded from testifying by current legislation, that witness is deemed competent. Whether the witness is competent or not is determined by his capacity to answer all the questions put in front of him and whether he can give rational answers to the questions. In the Indian Evidence Act of 1872, sections 118 to 121[1] as well as section 133[2] lays down provisions regarding the competence of those who may show up as witnesses, and section 121[3] of the Act, talks about communication during the marriage.
COMPELLABLITY OF A WITNESS
Every competent witness cannot be a compellable witness, in other words, it means that a person who can be a witness by providing a rational answer or understanding the questions is not subject to the court’s authority. The court cannot force the witness to attend and give evidence. In the case of foreign ambassadors and sovereigns, they can be competent witnesses but they cannot be compellable by the court since they are not bound to appear before the court and give evidence. Even if the witness is both competent and compellable the law may not compel them to answer specific questions. which can cause injury to his character, and can expose him to any criminal prosecution or proceedings for penalty or forfeiture of real estate or interest, this is also known as restricted compellability or restricted privilege. “Similarly, magistrates, lawyers, spouses, etc. also have the right to be safe and protected from answering certain questions while they are being examined as a witness”[4].
Section 124 to Section 132 [5]of the Act lays down provisions regarding the same.
WHO CAN BE A WITNESS?
Any person whom the court thinks to be competent enough to understand the questions put in front of him/her and capable enough to provide logical responses to the questions. “People of tender age, extreme old age, disease whether of a body or mind or any other cause of similar nature, cannot be a competent witness”[6]. For example, a lunatic person can be a competent witness unless and until his lunacy is preventing him from giving rational answers and from understanding the questions put to him. The accomplice can also be a competent witness against the accused as per section 133[7].
ADMISSIBILITY OF SPOUSAL COMMUNICATION: SECTION 122 READ WITH SECTION 120
One of the most preferred doctrines in the past was to treat husband and wife as one in the eyes of the law[8]. Therefore, in any legal procedure where one spouse was a party and the other one was required to participate, the former party’s spouse was not permitted to testify for or oppose the former party. However, the Act’s Section 120 lifts this prohibition, making both spouses qualified to testify regardless of their opinions of each other.[9]
S.120 lays down provisions regarding “parties to a civil suit, and their wives or husbands as well as Husband or wife of person under criminal trial”[10]. Much more elaboratively, it means in any civil proceeding husband and wife of any party can be competent witnesses against each other. Additionally, in criminal proceedings against anybody, the accused’s spouse may serve as a credible witness. [11]
Section 122 [12] lays down provisions regarding communications during the marriage. It means a person who is married or has been married cannot be forced to disclose any communications made to him or her during the subsistence of the marriage by any other person to whom he or she is married or has been married with[13]. This communication can only be disclosed if any consent is given by the party or by his or her representative in the interest of who had made the communication. This cannot take place in the case of a suit or proceedings where one of the wedded parties is being sued or any criminal offence perpetrated towards the other person.[14] This section protects all communications between the spouses during the marriage that can be proven in a court of law. “But it does not prohibit communication by any other means”[15]. This has to be noted that if the communication is made by one person to another after the dissolution of marriage, section 122 will not apply in this case. Similarly, the husband or wife may be required to reveal any communications they had before their marriage.
In the case of Ram Bharose vs State of Uttar Pradesh[16],
“The wife said that while it was still dark, she saw her husband coming down from the roof of his house and then going to the Bhusa Kothari and coming again and having a naked bath and after that wore the same clothes in the early hours of the day of the murder. She also said that after her husband gifted her some ornaments and when she asked about the place from where he got them, he said that he went to the house to get the ornaments. It was the house where the deceased lived. Venkataramma Iyer J. held that the wife could testify about the conduct of the husband but cannot disclose the communication they had between them.”[17]
When a lady who separated from her first husband and married a new one was provided as a witness in opposition to him to establish a conversation made during the concealment of marriage[18], it was held that she was deemed incapable of accomplishing so, because, in terms of interpreting the rule, the relation of husband and wife does not have to be continuing when it is necessary to provide the proof.[19]
NECESSITY OF CONSENT IN SECTION 122
If the husband or wife who made the communication, or his representative in interest, grants his consent, the other spouse may be allowed to testify about the communication made during the marriage[20]. It is not acceptable to imply assent to the provision of evidence. A party against whose evidence is to be introduced must consent to its admission, and the court must inquire of that party to determine if it will be accepted. Remember that the privilege under this clause only applies to communications, not to being a witness. According to the clause, a husband or wife cannot be forced to reveal such correspondence and cannot even be permitted to do so if they choose to.
EXCEPTION TO SECTION 122
Either spouse does not have to be involved in any litigation or proceedings to implement S. 122.[21] Whichever way it turns out, regardless of who is involved, any communication made between husband and wife is prevented to be proved in a Court of Law[22].
But this general norm has an exemption. The spouse’s communication can be shown in any legal lawsuit between them. Similarly, if a husband is charged with a crime against his wife or the reverse, the other partner has the legal obligation to reveal any conversation made by their partner in a criminal procedure.[23] It must be noted that the offence must take place against one another to apply the exception under section 122. “The seal of the law is applied to all communications of whatever form that pass between a husband and wife; therefore, the protection is not limited to situations where the communication sought to be presented as evidence is confidential[24]”. It also applies to situations in which just the interests of strangers are at stake and situations in which either spouse is a party to the evidence.[25]
Author(s) Name: Tapashya Bhattacharya (Amity University, Kolkata)
References:
[1] Indian Evidence Act 1872, s 118-121
[2] Indian Evidence Act 1872, s 133
[3] Indian Evidence Act 1872, s 121
[4] Batuk Lal, The Law of Evidence (Central Law Agency,20th edn) 551
[5] Indian Evidence Act 1872, s 124-132
[6] Indian Evidence Act 1872, s 118
[7] Indian Evidence Act 1872, s 133
[8] Batuk Lal, The Law of Evidence (Central Law Agency,20th edn) 557
[9] Batuk Lal, The Law of Evidence (Central Law Agency,20th edn) 557
[10] Indian Evidence Act 1872, s 120
[11] Batuk Lal, The Law of Evidence (Central Law Agency,20th edn) 557
[12] Indian Evidence Act 1872, s 122
[13] Ratanlal & Dhirajlal, The Law of Evidence (27th edn, Lexis Nexis)
[14] Batuk Lal, The Law of Evidence (Central Law Agency,20th edn) 559
[15] Batuk Lal, The Law of Evidence (Central Law Agency,20th edn) 559
[16] Ram Bharose vs State of Uttar Pradesh [AIR 1954 SC 704]
[17] Batuk Lal, The Law of Evidence (Central Law Agency,20th edn) 559
[18] Batuk Lal, The Law of Evidence (Central Law Agency,20th edn) 560
[19] M. C. Verghese v. T.J Ponnan [ AIR 1970 SC 1876]
[20] Batuk Lal, The Law of Evidence (Central Law Agency,20th edn) 560
[21] Batuk Lal, The Law of Evidence (Central Law Agency,20th edn) 559
[22] Narendra Nath Mukherjee v. State [AIR 1951 Cal. 140]
[23] Batuk Lal, The Law of Evidence (Central Law Agency,20th edn) 559
[24] Batuk Lal, The Law of Evidence (Central Law Agency,20th edn) 559
[25] Ram Chandra v. Emperor [AIR 1933 Bom. 153]
