The Marital Communications Privilege under Section 128 of the Bharatiya Sakshya Adhiniyam, 2023

A spouse is a fully competent witness and may be called against the other. What the spouse may not do is repeat what was said in confidence during the marriage — and may not do it even if willing, and even after the marriage has ended. The privilege is narrow in what it covers and unusually strong in how it operates, and the line it draws is between what one spouse was told and what that spouse saw for himself.

1. The Provision

Section 128, BSA — 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.

Section 128 corresponds to Section 122 of the Indian Evidence Act and is carried forward unchanged.

It sits alongside Section 126, which makes the husband or wife of a party a competent witness in a civil proceeding, and the husband or wife of an accused a competent witness in a criminal proceeding. The two provisions do different things and must be kept apart: Section 126 settles competency, Section 128 creates a privilege within it.

⚠ Competency and privilege are separate questions

A spouse called against the other is a competent witness and may be examined on everything — except the communications Section 128 protects. The objection that a wife cannot be called at all is wrong; the objection that she cannot be asked what her husband told her is right. Counsel framing examination-in-chief should work out in advance which parts of the account rest on communication and which on observation, because the second is entirely available and the first is not.

2. The Rationale

The privilege rests on a proposition about the institution rather than about the litigation: that a marriage in which each spouse must weigh what may later be repeated in a witness box is not the confidential relationship the law supposes it to be.

Two features of the provision follow from that rationale and are otherwise hard to explain.

It survives the marriage. The words are 'is or has been married'. Divorce, annulment or the death of the other spouse does not release the communication. What is protected is the confidence as it existed when the words were spoken, and a confidence that expired with the relationship would be no confidence at all.

The witness spouse cannot waive it. Most privileges belong to the person protected and may be given up by him. Here the privilege belongs to the spouse who made the communication, and the spouse who received it is both not compellable and not permitted to disclose. A willing witness is no answer.

3. The Ingredients

Element	What it requires
A person who is or has been married	A valid marriage. Where the marriage is void, or is not proved, the privilege does not arise, and the question of its validity may itself have to be tried
A communication	Something said or written by one spouse to the other. Acts, conduct and what the witness perceived are outside it
Made to him	The privilege attaches to what the witness spouse received, not to what he said himself
During marriage	The communication must have been made while the marriage subsisted. What was said before it or after its dissolution is unprotected
By the person to whom he is or has been married	Communications from a third party, even about the marriage, are outside the section

Two of these repay separate attention.

During marriage is a real limitation. A statement made during courtship, or after a decree of divorce, is not protected however confidential it was. Where the timing is in issue, the date of the marriage and the date of the communication both become facts to be established.

Made to him confines the privilege to the receiving spouse. A husband giving evidence is not prevented by this section from deposing to what he himself said to his wife — though whether he would wish to is another matter, and other provisions may bear on it.

4. Communication and Conduct — The Decisive Line

The section protects communications. It does not protect facts the spouse perceived, and this distinction decides most cases arising under it.

📖 Ram Bharosey v. State of Uttar Pradesh, AIR 1954 SC 704

Held: The provision corresponding to Section 128 protects communications made by one spouse to the other during marriage; it does not protect acts or conduct of one spouse observed by the other.

The wife's evidence that she had seen her husband, at about sunrise, come down from the roof, go to the bhusa kothri and then to the bathroom, was admissible, because these were acts she had observed. Her further evidence as to what her husband told her on that occasion — that he had obtained the ornaments from the house of the deceased — was inadmissible, being a communication made during marriage.

Ratio: Acts and conduct observed by a spouse are not communications and are outside the privilege. What was said is protected; what was seen is not.

The division the decision produces is worked out in practice as follows.

The spouse's evidence	Protected?
That the other told her he had committed the offence	Yes — a communication
That she saw him return at an unusual hour	No — an act observed
That she saw him wash or burn clothing	No — conduct
That he handed her an article, saying nothing	No as to the handing over; the act is conduct
That he handed her an article and explained where it came from	The act is admissible; the explanation is not
That she found an article in his possession	No — a fact observed
That he wrote to her admitting the offence	Yes — a written communication
That he was absent from the house on the relevant night	No — a fact

⚠ Framing the examination decides how much survives

Where a spouse's account mixes the two, the admissible part is frequently the more useful. A witness who may not say 'he told me he had killed him' may say that he returned at three in the morning, that his clothes were stained, that he burned them in the yard, and that he left the house before daylight. Each is an observation. Counsel should elicit the perceived facts in their own right rather than as the setting for a conversation, and should be ready with the Ram Bharosey distinction when the objection comes.

5. The Privilege Binds the Spouse, Not the Communication

This is the most important structural point about the section and the one most often misunderstood. Section 128 is addressed to a person — 'no person who is or has been married shall be compelled ... nor shall he be permitted'. It prohibits a spouse from testifying to the communication. It does not make the communication itself inadmissible for all purposes and against all comers.

📖 M.C. Verghese v. T.J. Ponnan, (1969) 1 SCC 37

Facts: Ponnan wrote letters to his wife containing statements defamatory of her father, Verghese. The wife handed the letters to her father, who prosecuted Ponnan for defamation. The accused contended that the letters were communications made during marriage and were protected.

Held: The provision corresponding to Section 128 prohibits the spouse from disclosing the communication in evidence; it does not declare the communication inadmissible. The bar is on the testimony of the spouse, and where the communication can be proved by other evidence — because the document has come into the hands of a third person, or its contents can be established otherwise — it may be received.

The Court observed that the section prevents disclosure in giving evidence in Court of the communication by the spouse, and does not prevent proof of the communication by a person to whom it has been made available.

Ratio: The privilege attaches to the spouse's testimony, not to the communication. A third party who lawfully has the communication may prove it.

Three consequences follow, and they are of considerable practical importance.

A document may be proved by other means. A letter from one spouse to another that has come into a third person's hands may be tendered and proved in the ordinary way, and the privilege does not bar it. What the receiving spouse may not do is depose to its contents.

A third person who overheard is not bound. The section binds the spouse. Somebody who happened to hear what was said — a servant, a relative, a person on a telephone line — is not within it and may be examined.

An interception is not within the section either. Where a communication between spouses has been recorded or intercepted, the privilege does not exclude it, though the admissibility of such material raises its own questions under the interception legislation and under the reasoning in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

⚠ The route around the privilege is genuine but has limits

M.C. Verghese is sometimes read as making the privilege nearly worthless. It does not. What it establishes is that the spouse cannot be the conduit. Where the only way to prove the communication is through the spouse's mouth, the privilege is complete and there is no way round it. The route exists only where the communication has, independently and lawfully, become available to somebody else — and that is a question of fact to be established rather than assumed.

6. The Two Exceptions

The privilege does not apply in two situations, and both rest on the same idea: where the marriage itself is the subject of the litigation, a privilege founded on preserving its confidence would defeat the proceeding.

6.1 Suits between married persons

In a suit between the spouses — matrimonial proceedings for divorce, judicial separation, restitution or nullity, and civil suits between them — the privilege does not operate. Where the conduct of the marriage is what the court has to determine, excluding what passed between the parties would make the determination impossible.

6.2 Proceedings in which one is prosecuted for a crime committed against the other

The second exception is of great practical importance in the criminal courts. Where one spouse is prosecuted for an offence committed against the other, the privilege falls away, and the complainant spouse may depose to everything including what was said.

The exception covers the whole range of offences between spouses — cruelty by a husband or his relatives, offences relating to dowry, assault, and offences against the person. In such a prosecution the wife is a competent witness under Section 126, the privilege in Section 128 does not apply by force of the exception, and her evidence is available in full.

⚠ The offence must be against the other spouse

The exception is confined to a crime committed against the other married person. Where the husband is prosecuted for an offence against a third party — a murder, a theft, an offence against a child — the exception does not apply, and the privilege operates in the ordinary way. A prosecution in which the wife is a witness rather than the victim is therefore squarely within the privilege, and the Ram Bharosey distinction becomes the whole of the analysis.

6.3 Consent

Beyond the two exceptions, the privilege yields to the consent of the person who made the communication, or of his representative in interest. The reference to a representative in interest matters where the spouse who made the communication has died: the privilege does not lapse with him, and it is his representative who may consent.

7. Section 128 Compared with the Other Privileges

	Section 128 — marital	Section 132 — advocate and client	Section 129 — affairs of State
Holder	The spouse who made the communication	The client	No private holder; the public interest
May the recipient waive?	No — he is not permitted to disclose	No — the advocate needs the client's express consent	Not applicable
Survives the relationship?	Yes — 'is or has been married'	Yes — continues after the employment ceases	Not applicable
Covers conduct?	No — communications only	Covers communications, documents and advice	Covers unpublished official records
Exceptions	Suits between the spouses; prosecution for a crime against the other; consent	Illegal purpose; crime or fraud since the employment; client's consent	Permission of the head of the department, and the court's own decision
May a third party prove it?	Yes, if lawfully available — M.C. Verghese	The privilege attaches to the advocate and the client, with a similar structure	No — the record itself is protected

8. Practical Points

Establish the marriage. The privilege presupposes a valid marriage, and where it is disputed the question may have to be tried.
Fix the date of the communication. It must have been made during the marriage; statements before or after are unprotected.
Separate communication from observation in every spousal statement, and lead the observed facts in their own right — Ram Bharosey.
Check whether an exception applies. A prosecution for an offence against the spouse removes the privilege entirely.
Consider whether the communication is available otherwise. A document in a third person's hands, or a person who overheard, is outside the section — M.C. Verghese.
Do not treat the witness's willingness as consent. Only the spouse who made the communication, or his representative in interest, can consent.
Take the objection when the question is put, since it is an objection to the admissibility of the answer.

9. The Position Stated Shortly

Section 128 creates a privilege, not an incompetency. A spouse is a competent witness under Section 126 and may be examined on everything except protected communications.
The privilege belongs to the spouse who made the communication, and the recipient is neither compellable nor permitted to disclose.
It survives the marriage — 'is or has been married' — and survives the death of the maker, his representative in interest then consenting.
It covers communications, not conduct. Acts and facts observed by the spouse are admissible — Ram Bharosey.
It binds the spouse, not the communication. A third party who lawfully has it may prove it — M.C. Verghese.
Two exceptions — suits between the married persons, and prosecutions for a crime committed against the other.
The offence must be against the other spouse. A prosecution for an offence against a third party leaves the privilege intact.
The privilege yields to the consent of the maker or his representative in interest, and to nothing else.

10. Related Topics and Provisions

Topic or provision	Connection
Privileged Communications under the BSA	The eleven privileges in Sections 127 to 137
Competency and Privilege of Witnesses — Sections 124 to 139	Section 126 on the competency of a spouse
Advocate-Client Privilege — Section 132	The other relationship privilege, and its different structure
Presumption as to Dowry Death — Section 118	Prosecutions in which the second exception operates
Abetment of Suicide by a Married Woman — Section 117	The same exception
Audio and Video Recordings as Evidence	Intercepted or recorded communications between spouses
Section 126, BSA	Competency of husband and wife as witnesses