NLIU LAW REVIEW

Assailing the Tenability of Section 122 of the Indian Evidence Act: Traversing Through the Troubled Waters

Saumya Ranjan Dixit and Bhabesh Satapathy

Section 122 of the Indian Evidence Act of 1872 provides for marital communication privilege intending to protect marital privacy and marriage as an institution. However, this provision has been facing significant criticisms for obstructing the truth-seeking nature of the judicial process. This article attempts to highlight that the objective that the provision seeks to achieve is flawed and haphazard in nature. It further discusses various prevailing infirmities that have crept into the provision and proposes to abrogate those lacunae. It also highlights concerns relating to the exceptions grafted into the provision and contends to add some more exceptions to it by borrowing them from foreign jurisdictions. It further criticizes the reasonings adopted in various cases by courts of the United Kingdom (“UK”), the United States of America (“USA”), and India to showcase a comparative analysis of the exercise of this provision in these states. At certain points, the authors also draw inspiration from foreign constituencies, which have evolved some welcoming developments and suggest its adoption in India. However, it should not be misconstrued that the authors demand a complete erasure of the privilege, but rather suggest limiting its impact on the information-seeking process of the judiciary. Therefore, to alleviate the present infirmities in the provision it is proposed that voluntary testimony of the witness spouse must be permitted. In other words, if a spouse is willing to become a witness and provide testimony voluntarily to the detriment of another spouse, then that should be permitted and accepted instead of restricting it. Further, some more exceptions are carved into the provision. These suggestions are the prime solutions which the authors propose to cure the existing defects in the provision. The authors also believe that adopting this mechanism could balance the competing interests of protecting marital privacy and the truth-seeking mechanism of the judiciary in an effective manner.