Spousal Privilege: Insights into Protected Communication within Legal Frameworks


Best Law Books

Spousal Privilege: Insights into Protected Communication within Legal Frameworks

Privileged Communication, delineated by the Merriam-Webster Dictionary, denotes a potentially defamatory exchange that absolves the communicator from liability when recognized as privileged. Put simply, it encompasses dialogues between individuals in legally acknowledged relationships, safeguarding the intricacies of such interactions from disclosure to external parties.

This confidentiality serves to preserve the equilibrium of the relationship, allowing individuals to abstain from divulging communication details to third parties. Protected communication, by its nature, remains inadmissible as evidence in a court of law, subject to specific exceptions. Its presence underscores societal reverence for the confidentiality inherent in certain relationships, ensuring individuals can communicate openly and candidly with trusted professionals, advisors, and associates, devoid of concerns regarding legal consequences.

Privileged Relationships under Indian Evidence Law

In India, the Indian Evidence Act of 1872 stands as the cornerstone legislation governing evidentiary rules. Within its provisions lie various privileges aimed at safeguarding confidential relationships, including spousal privilege (pertaining to communication between spouses), State privilege (encompassing unpublished state records), Professional privilege (covering communication between lawyers and clients), among others. These privileges find their legal footing in Sections 122-129 of the Indian Evidence Act. This article delves into the intricacies of spousal privilege as delineated in the Indian Evidence Act, followed by significant Supreme Court rulings pertaining to matters of spousal communication.

Spousal Privilege

Spousal Privilege is a crucial legal concept designed to safeguard the confidentiality of discussions between married couples, permitting them to decline testimony against one another or disclose private conversations shared within their marital relationship. This privilege, often referred to as marital or husband-wife privilege, is exclusively applicable to legally wedded individuals. Enshrined within the Indian legal framework by the Evidence Act of 1872, Section 122 outlines this privilege under the heading ‘Communication during marriage.’ It explicitly states that “No person who is presently married or has been married shall be compelled to disclose any communication exchanged during their marriage with their spouse. Moreover, they are prohibited from disclosing such communication without the consent of the initiating party or their representative, except in cases involving legal disputes between spouses or proceedings where one spouse faces prosecution for a crime committed against the other.” Now, the pressing query arises: “Under what circumstances can spousal privilege be invoked?” Let us delve into a pivotal condition essential for invoking spousal privilege.

Under what circumstances can spousal privilege be invoked?

Spousal privilege may only be invoked if a specific condition is met: that the communication occurred during the duration of the marriage. This privilege does not encompass communications made before or after the marriage. Furthermore, courts do not recognize marital privilege for individuals in fraudulent marriages or those cohabiting without a legal marriage. Thus, the existence of a legally recognized marriage between two individuals is a fundamental requirement for invoking spousal privilege.

Does Spousal Privilege persist after the dissolution of marriage?

The continuity of spousal privilege extends beyond the termination of marriage, provided that the communication between the individuals occurred during the duration of the marriage. This principle was affirmed in the S.J. Chaudhary ruling issued by the Delhi High Court. The bench emphasized that “If the marriage was ongoing at the time of the communications, the prohibition outlined in Section 122 remains effective even after the wife has secured a decree annulling her marriage.”

When spousal privilege can be revealed

Although spousal privilege serves as a crucial legal safeguard, it is not unconditional and is susceptible to specific exceptions. The conditions that permit an individual to reveal information exchanged between spouses are outlined in Section 122 of the Indian Evidence Act.

  • Disclosure of such communication is allowed if the individual who initiated it or their representative in interest grants permission.
  • In situations involving legal disputes between married individuals.
  • During proceedings where one spouse faces prosecution for a crime committed against the other.

Important  Case Laws

Ram Bharosey vs. State of U.P. (February 25, 1954)


In this case, Ram Bharosey, the appellant, was accused of murdering his father and stepmother. However, there existed no direct evidence linking him to the crime.

Main Legal Question:

The central issue addressed in this case was whether the circumstantial evidence presented was adequate to support the conviction of Ram Bharosey.

Supreme Court’s Analysis:

The Supreme Court considered the testimony of P.W. 2, the wife of Ram Bharosey, who stated that she saw the accused in the early hours of May 27, 1952, descending from the roof of his house while it was still dark. He then proceeded to a particular room and later emerged, having bathed and changed his attire. The Court deemed this testimony admissible under Section 122, as it pertained to the actions and behavior of the appellant rather than any communication made by him to his wife.

Key Findings:

The Court highlighted the presence of blood stains on the jewels found in possession of Ram Bharosey, coupled with the circumstance of him being observed descending from the roof of the house in the early hours. Additionally, the recovery of a blood-stained ‘gandasa’ further contributed to connecting him with the murder offense.

Court’s Decision:

Based on the evidence presented, the Supreme Court affirmed Ram Bharosey’s conviction under Section 302 IPC (Indian Penal Code) and subsequently dismissed the appeal lodged by the appellant.

M.C. Verghese vs. T.J. Ponnan (November 13, 1968)


In this legal dispute, M.C. Verghese lodged a defamation complaint against T.J. Ponnan, who happened to be the husband of Verghese’s daughter Rathi. The basis of the complaint stemmed from letters authored by Ponnan, containing defamatory remarks about Verghese. These letters were conveyed to the complainant through the wife of the respondent.

Legal Issue Presented:

The matter was brought before the Supreme Court to examine the legal status of a letter containing defamatory content concerning a third party (Verghese) that was sent by the husband to his wife, particularly regarding whether such communication was privileged under Section 122 of the Indian Evidence Act.

Supreme Court’s Analysis:

The bench deliberated on the admissibility of the letters in question, considering they were in the possession of the complainant and were available for submission as evidence. The Court concluded that there was no justification for prohibiting an inquiry into the complaint based on the preliminary contentions raised. Additionally, the Court remarked that if the complainant intended to rely solely on the testimony of the wife of the accused, he might face the restriction imposed by Section 122 of the Indian Evidence Act.

Court’s Decision:

The Supreme Court’s ruling implied that the complaint could proceed, and the letters could potentially be tendered as evidence. However, the admissibility of evidence from the wife of the accused would be subject to the restrictions outlined in Section 122 of the Indian Evidence Act.

Vishal Kaushik vs. Family Court & Another (May 26, 2015)


Vishal Kaushik, the petitioner, initiated divorce proceedings before the Family Court, citing allegations of mental cruelty inflicted by his wife, particularly due to her extramarital affair.

Main Legal Question:

The pivotal issue addressed by the Supreme Court was whether a conversation recorded by the husband without the wife’s consent or knowledge could be admitted as evidence against her.

Supreme Court’s Analysis:

The Supreme Court answered this question with a definitive “no,” asserting that such a recording violated the wife’s “right to privacy,” a fundamental aspect of her “right to liberty” safeguarded under Article 21 of the Constitution of India.

Key Findings:

The bench emphasized that while Section 122 of the Indian Evidence Act provides exceptions to the privileged communication between spouses, permitting one spouse to compel the other to disclose communications made during marriage, this provision does not extend to tape-recorded conversations conducted without the knowledge of the other spouse.

Court’s Decision:

Consequently, the Supreme Court ruled that tape-recorded conversations obtained without the consent or awareness of one spouse cannot be admitted as evidence or otherwise utilized in legal proceedings.

Legal Recognition of Privileged Communication in Live-In Relationships

D. Velusamy vs. D. Patchaiammal (October 21, 2010)


The case addressed the extension of privileged communication to live-in partners and delineated specific conditions under which a live-in relationship could be recognized as being akin to marriage.

Main Legal Points Addressed:

1. Extension of Privileged Communication:

The Supreme Court deliberated on the applicability of privileged communication to live-in partners, aiming to establish parameters for recognizing the legal standing of such relationships.

2. Conditions for Relationship Recognition:

The court outlined essential conditions for considering a live-in relationship as a ‘relationship in the nature of marriage,’ including:

(i) Public Representation:

The couple must present themselves to society as akin to spouses, thus manifesting a public acknowledgment of their relationship.

(ii) Legal Capacity:

Both partners must be of legal age to marry and possess the qualifications necessary to enter into a legal marriage, including being unmarried.

(iii) Voluntary Cohabitation:

The partners must have voluntarily cohabited and represented themselves to the world as being akin to spouses for a significant duration.

Additional Requirements for 2005 Act:

Under the provisions of the 2005 Act, a ‘relationship in the nature of marriage’ must also fulfill the aforementioned conditions. Moreover, it is required that the parties have resided together in a ‘shared household’ as outlined in Section 2(s) of the Act.

Clarification on Domestic Relationship:

The court emphasized that merely spending weekends together or engaging in a one-night stand would not suffice to establish a ‘domestic relationship’ under the law.

Court’s Decision:

The Supreme Court’s ruling provided clarity on the legal recognition of live-in relationships, setting forth specific criteria to be met for such partnerships to be considered akin to marriage. This decision marked a significant development in the legal framework surrounding non-marital cohabitation arrangements.

Read More

Annulment of Marriage

Share this Article:

Leave a Comment

Presidents Day 2024: History, Significance, and Shopping Deals The Pubic examinations (prevention of unfair means) bill, 2024 Supreme Court’s Landmark Decision on Electoral Bonds Scheme Restrictions Imposed under Section 144 in Delhi till March 12 Dual Citizenship: Insights and Challenges for Indians Abroad Delhi High Court Bar Association Honors Legal Pioneers in Landmark Cases Digital Arrest New Scam Delhi Judicial Service Exam 2023: Notification Overview Switzerland Parliament Passes Burqa Ban: What You Need to Know Woman Loses All Limbs After Consuming Contaminated Tilapia fish Important Legal Maxim UK ban American xl bully dog Rosh Hashanah 2023 G20 Summit 2023 Full Moon Supermoon Blue Moon India Gears Up to Host G20 Summit in Delhi 2023 Shivaji Maharaj Statue desecrated in Goa Dubai burj khalifa Indian flag 2023 Partition horrors remembrance day Indiana mom dies after drinking water