Marital Confidence U/S 122 Of Evidence Act Jeopardises Public Interest, Requires A Revisit: Kerala High Court

The Kerala High Court on Friday observed that Section 122 of the Evidence Act requires a revisit since it was a legal weapon used by criminals to suppress their crimes, thereby affecting public interest. The said provision recognises the age-old concept of marital confidence, where all communications between spouses during the wedlock are considered sacrosanct.

While appreciating the sacrosanctity attached to communications between spouses as laid down by the English Commission of Common Law Procedure report in 1853, a Division Bench of Justice K. Vinod Chandran and Justice C. Jayachandran observed that perhaps it was time to reconsider the stand in the light of modern times.  

"...we are afraid whether the observations made by the above Commission in the year 1853 requires a re-visit, in the touchstone of competing interests between public crimes of extreme cruelty on the one hand; and the peace of families, on the edifice of mutual confidence and trust, on the other."

The Court opined that although the provision was an attempt at protecting the communication between spouses as a privileged communication, is it not more significant to bring to light the truth behind a crime. 

"Can we recognise any more that the public interest in the context of disclosure of truth about a crime in a court of law is inferior or subservient to the happiness and peace of a family, secured by suppression of such truth, backed up by statute? One cannot keep happiness and peace of his family, after indulging in a crime and then seeking support of law to suppress it. What about the peace and happiness of the family of victim? What about the underlying public interest being seriously jeopardized for the sake of peace and happiness of the family of the culprit? We prefer to believe in the primacy and paramountcy of truth and hence, not in the least, perplexed to vote against the continuance of the provision, as it stands now, in the statute book. Its high time that Section 122 is subjected to further scrutiny, more so in the context of changing values governing human and familial relations."

The Judges also recalled that a word of caution was raised much before by the Bombay High Court in Vilas Raghunath Kurhadev. State of Maharashtra [2011 Crl.LJ 3300].

After referring to the danger of recognising sacrosanctity of spousal communications as predominant, the Bombay High Court had recommended the State Government to approach the Law Commission or the Ministry of Law and Justice with a proposal for amendment of Section 122.

However, since no amendment has been made so far, the Court found itself bound by Section 122 and its implications, so long as it remains in the statute book.

Nevertheless, the Registry was directed to send a copy of this judgment to the Secretary of Ministry of Law and Justice and to the Member Secretary of Law Commission of India to initiate a discussion on this issue. 

Background:

The Court was adjudicating upon a criminal appeal moved by a woman against the order of a trial court acquitting the accused in her husband's murder.

The prosecution case was that the accused brutally murdered the deceased suspecting him of being engaged in an illicit affair with his wife. Their primary piece of evidence was a witness statement of the man who witnessed the entire incident.

The wife of the accused had also deposed before the trial court, which was the sole evidence the prosecution had to prove the motive of the accused. 

However, the trial court discarded the evidence of the eyewitness as unbelievable on the ground that he did not scream or make any noise while watching the accused stab the deceased thrice on his neck. The trial court found this behaviour strange and improbable and hence not believable.

The wife's deposition was also disregarded on the ground that it was protected by Section 122 as privileged communication between the spouses. As such, finding the evidence adduced by the prosecution to be lacking, the trial court acquitted the accused. 

Relevant Findings:

• Illogical to Presume a Standard Behaviour from Human Beings

The High Court failed to see why the evidence tendered by the eye witness was not approved by the trial court.  

Notably, it held that it is unscientific and illogical to presume standard behaviour from human beings in a given situation. Equally fallacious is the conclusion drawn based on the deviation from the so-called standard behaviour, the Bench observed.

"Every individual is different and distinct, with separate individual traits and personality patterns. Different persons react to the same situation differently. Some may react proactively and may even attempt to prevent the commission of the crime. They may sometimes dare even to risk their lives. Au contraire, some may be passive and may take an unconcerned attitude. Some may flee from the spot of crime. Another category can be in the spell of shock, upon seeing a ghastly incident. We are, therefore, of the opinion that no standard behaviour can be expected of human beings, who witness the commission of a crime. Nor is it permissible in law to brand a witness as reliable or unreliable on the sole basis of such standard behaviour, or deviation therefrom."

The Sessions Judge had standardised the immediate reaction of an ordinary human being upon seeing an accident that he will suddenly come to the rescue of the injured. This generalisation of human conduct was found to be palpably wrong and legally unsustainable.

• Quarrel b/w Spouses involves Mutual Communication, Protected By S.122

The admissibility of the wife's evidence was seriously challenged by the accused citing express bar under Section 122 of the Evidence Act.

Her deposition was that on the day before the murder, there was a quarrel between her and the accused, over the chats between her and the deceased.

The Court noted that close scrutiny of Section 122 reveals that the bar of disclosure is only to a 'communication' made to a witness - a married person – by their spouse during the marriage.

In this backdrop, it was found that entire evidence adduced by the wife except the one referring to the quarrel is admissible in evidence. 

Although at first blush, it may appear that the quarrel is more of a conduct than communication, the Bench noted the quarrel between them was a means by which the accused had communicated his protest over her chats with the deceased.

"A quarrel, in all probability involves, mutual conversation, where, in the instant case, the accused should be interested to find fault with PW17 in chatting with deceased, and PW17 may perhaps justify it as an innocent conduct. All what we are trying to point out is that such quarrel involves communication by each other of the stand being taken by the respective parties." 

It was further observed that the sacrosanctity of a family includes its privacy, which is what is sought to be protected by Section 122.

If that be so, touching the fidelity of the wife is all the more a finer and important one, which requires to be preserved from being divulged. Therefore, it was held that as evidence regarding quarrel and the reason behind it are matters which fit into the prohibited compartment of communication between spouses, and therefore, are inadmissible. 

Although the inescapable conclusion was that the prosecution failed to establish the motive alleged, the High Court set aside the impugned judgment of acquittal finding sufficient force in the other evidence rendered by the prosecution.

Thus, the accused was found guilty of having caused the death of the deceased, attracting the offence under Section 300 of IPC.

"The offence committed is one under Section 302 of the Penal Code, exterminating the life of the deceased. An unmerited sympathy on the accused in the sentence component of fine will, therefore, be inappropriate." 

Allowing the appeal, the Court imposed on the accused imprisonment for life and a fine of Rs.2,00,000/- to be paid to the wife and children of the deceased as compensation.

Senior Advocate Vijaya Bhanu appeared for the appellant while Advocate K. Rakesh argued for the accused in the case. Public Prosecutor V.S. Sreejith also made appearance in the matter. 

Case Title: Alli Noushad v. Rasheed & Anr.

Citation: 2022 LiveLaw (Ker) 90

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