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section 122

Supreme Court of India

M.C. Verghese vs T.J. Ponnan & Anr on 13 November, 1968

Verghese has complained that he was defamed by the three letters which Ponnan wrote to Rathi Ponnan, however, says that the letters addressed by him to his wife are not--except with his consent--admissible in evidence by virtue of s. 122 of the Indian Evidence Act, and since the only publication pleaded is publication to his wife and she is prohibited by law from disclosing those letters. no offence of defamation could be made out. So stated the proposition is in our judgment, not sustainable. Section 122 of the Indian Evidence Act falls in Ch. IX which deals with evidence of witnesses in proceeding before the court. That section provides:

"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 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."

A prima facie case was set up in the complaint by Verghese. That complaint has not been tried and we do not see how, without recording any evidence, the learned District Magistrate could pass any order discharging Ponnan. Section 122 of the Evidence Act only prevents disclosure in giving evidence in court of the communication made by the husband to the wife. If Rathi appears in the witness box to give evidence 'about the communications made to her husband, prima facie the communications may not be permitted to be deposed to or disclosed unless Ponnan consents. That does not, however, mean that no other evidence which is not barred under s. 122 of the Evidence Act or other provisions of the Act can be given.

In a recent judgment of the House of Lords Rumping v. Director of Public Prosecutions [1962] All E.R. 256 , Rumping the mate of a Dutch ship was tried for murder committed on board the ship. Part of the evidence for the prosecution ,admitted at the trial consisted of a letter that Rumping had written to his wife in Holland which amounted to a confession. Rumping had written the letter on the day of the killing, and had handed the letter in a closed envelope to a member of the crew requesting him to post it as soon as the ship arrived at the port outside England. After the appellant was arrested, the member of the crew handed the envelope to the captain of the ship who handed it over to the police. The member of the crew, the captain and the translator of the letter gave evidence at the trial, but the wife was not called as witness. It was held that the letter was admissible in evidence. Lord Reid, Lord Morris of Borth-Y-Gest, Lord Hodson and Lord Pearce were of the view that at common law there had never been a separate principle or rule that communications between a husband and wife during marriage were inadmissible in evidence on the ground of public policy. Accordingly except where the spouse to whom the communication is made is a witness and claims privilege from disclosure under the Criminal Evidence Act. 1898, (of which the terms are similar to s. 122 of the Indian Evidence Act though not identical), evidence as to communications between husband and wife during marriage is admissible in criminal proceedings.

The question whether the complainant in this case is an agent of the wife because he has received the letters from the wife and may be permitted to give evidence is a matter on which no opinion at this stage can be expressed. The complainant claims that he has been defamed by the writing of the letters. The letters are in his possession and are available for being tendered in evidence. We see no reason why inquiry into that complaint should, on the . preliminary contentions raised, be prohibited. If the complainant seeks to support his case only upon the evidence of the wife of the accused, he may be met with the bar of s. 122 of the Indian Evidence Act. Whether he will be able to prove the letters in any other manner is a matter which must be left to be determined at the trial 'and cannot be made the subject-matter of an enquiry at this stage. When the letters were written by Ponnan to Rathi, they were husband and wife. The bar to the admissibility in evidence of communications made during marriage attaches at the time when the communication is made, and its admissibility will be adjudged in the light of the status at the date and not the status at the date when evidence is sought to be given in court.

We are, therefore, of the view that the appeal must be allowed and the order passed by the High Court set aside. The proceedings will be remanded for trial to the District Magistrate according to law.

Supreme Court of India

Ram Bharosey vs State Of Uttar Pradesh on 25 February, 1954

Firstly, there is the evidence of P. W. 2 that the accused was seen in the early hours of the 27th May 1952 while it was still dark, coming down the roof of his house, that he went to the bhusha kothri and came out again and had a bath and put on the dhoti again. This is not inadmissible under Section 122, as it has reference to acts and conduct of the appellant and not to any communication made by him to his wife. Secondly, there is the fact that among the articles delivered by him to P. W. 18 at the time of the investigation on the morning of the 27th was a blood-stained gandasa.

028. Section 122
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