Marriage Comes with A Privilege

With right to privacy being recognized as an important facet for living with dignity, under Article 21 spousal privilege gains more importance

We, the people of India, are a sovereign socialist secular democratic republic country.¹ We are among the few fortunate countries that can boast that nothing and nobody is above the law. Our constitution provides for a robust and evolving judicial system. The Indian Judiciary is one of the most prestigious limbs of the Indian system. We have proved the mettle of our legal system and principles time and again. Not just domestically, the efforts and achievements of our judiciary/judges have been recognized even on the international stage. Our system has not shied away from providing fair representation even to the accused of the most heinous crimes. Be it the Kasab Trial, the Nirbhaya case, the 2G Spectrum case and the list goes on.

Fair trial is at the heart of the judicial system. The Supreme Court observed that this right flows directly from Article 21 of the Constitution of India.² The task of fair trial is entrusted with the judiciary and in order to facilitate the same there are certain rights that have been granted to the accused or other litigants. These include free legal aid, impartial judges, adherence to laws and following the principles of natural justice etc. Privileges are an important feature to ensure fair trial. These include the right to silence/right against self-incrimination, attorney client privilege, spousal privileges among others. Privileges are like ventilators and windows, without which the system would suffocate. Laws must facilitate justice, keeping in mind the social and economic factors.

SPOUSAL PRIVILEGES, WHY!

While marriage is a contract for some, for many it is a sacred and holy union. Regardless of the belief and form, the essence lies in leading happy lives. Our society functions on matrimonial unions, therefore, it becomes important that the laws are such which promote healthy and happy marriages. One must be able to share one's life with their spouse without being worried and doubtful. Privacy of a couple must be shielded. It must be protected from the outside world and each other, if/when the time comes. In some countries husband and wife are considered to be as one and the spousal privilege extends as protection against self-incrimination. India too recognizes spousal privilege, but it is a little different from the privilege available in other 'common law' countries with exceptions attached. Nothing good can come from delving into someone's private affairs and dishing it out as dessert to the public.

Justice Khanna observed that "So much of the happiness of human life may fairly be said to depend on the inviolability of domestic confidence that the alarm and unhappiness occasioned to society by invading its sanctity and compelling the public disclosure of confidential communications between husband and wife would be a far greater evil than the disadvantage which may occasionally arise from the loss light which such revelations might throw on the questions in dispute hence all communications between them should be held privileged."³

Matrimony is a private affair that is built on trust and companionship. Free flow of communication is the basic need every relationship that must be afforded. If there are apprehensions while communicating, one may never be able to enjoy the perks of a married life. Married individuals should not be compelled to betray the mutual trust and confidence which a marriage implies or deserves.⁴ The intent of preventing marital communication is to preserve the trust and affinity among married couples. The privilege enables peace and trust to prevail in a family and discourages bringing of the private lives out in open.

MARRIAGE MUST SUBSIST DURING THE COMMUNICATION

Spousal privilege extends to only those communications which are made during the subsistence of marriage. But the privilege continues even after separation or breakdown of the marriage. It has been observed that the courts tend to give a strict interpretation of such provisions, which is why, people in live-in relationships or engaged couples may not be able to avail this privilege. The Supreme Court⁵ categorically held that this privilege cannot be extended to a woman who is not a legally wedded wife. Therefore, to seek refuge of this privilege, one must be legally married. The privilege does not cover the cases where the spouses are litigating inter-se for a crime committed against one spouse by another. The privilege is introduced to bring about domestic peace. But if the peace has been compromised there is no reason for application of the privilege. To adjudicate upon breakdown of marriages, the court has to delve into private affairs to reach justice. If the privilege were to extend to those proceedings, it would become impossible for courts to decide upon those matters. The privilege extends for sanctity of marriages, the sanctity does not end with the end of the marriage. Privilege does not continue after the dissolution of the marriage but it remains undisturbed for the period of the marriage. That right of privacy extends not only to the matrimonial home but also to the matter of dissolution of a marriage. Therefore, a third party who has nothing to do with the marriage cannot be permitted to intrude into their privacy⁶ and use their acrimony to further their private interests.

EXCEPTION TO THE EXCEPTIONS!

We live in a world of exceptions. The beauty of law, it brings exceptions within exceptions. It will not be out of place to stay that the privileges, which enable exclusion of certain evidence despite being relevant, is an exception to the general law of evidence. However, to make it fair there are exceptions to these privileges which prevent having a blanket ban on admissibility of all vital evidence. Section 122 categorically states that the privilege can be waived by the person who made that statement as well as when the proceedings are inter-se the couple. Now, what is interesting is, not what the law says but what it does not. The phrasing of the law bars communications amongst the spouses but there is no bar on disclosing what was observed by the spouse. The privilege does not extend to the conduct of the accused⁷ which the spouse can be asked to disclose as evidence. The Bombay High Court stated that what was communicated by the husband to his wife is not admissible in evidence. However, what she witnessed at the relevant time of the crime is admissible.⁸ In addition to the above what must not be forgotten is, if the accused spouse oneself waives the privilege, then there is no bar on the admissibility of the evidence.⁹ However, the consent must come from the person who made the communication, not the receiver.

IF/WHEN THE CONVERSATION IS OVERHEARD

"Nothing good was ever learned from eavesdropping, so mind your business and let others mind theirs."

-Maryrose Wood

Eavesdropping is definitely not a decent thing. Furthermore, it makes the privilege also futile. A conversation in the presence and/or when is overheard by a third person, the privilege cannot be claimed over the third person. Letters or any written communication which a third person discovers independently of the spouse, are admissible. It is because the written correspondence cannot be considered as communication, because when a letter is produced in court and the contents are proved, it is the letter that makes the disclosure and not the spouse.¹⁰ Now, it can be inferred that wherever one can prove the conversation and/or communication amongst the spouse without seeking assistance from the spouse, the same is not barred by the privilege under Section 122 of the Evidence Act. It flows from the fact that, when the parties themselves make a communication available to third parties, it cannot be said that the communication deems the confidence which the privilege protects. Therefore, there is no reason from keeping the same away from the courts.

CONCLUSION

Law is a means to an end, the end being, peace and order. Without domestic peace, there cannot be peace in the society, the society will ensure a peaceful and orderly economy. With right to privacy being recognized as an important facet for living with dignity, under Article 21¹¹, spousal privilege gains more importance. It will ensure that private affairs do not find their way into public corridors. The provision has been a result of astute draftsmanship, the communications are not vulnerable while enabling the courts opportunity to include the evidence if it falls within the exceptions. Unlike the United States the Indian Law does not consider husband-wife as one individual which prevents an absolute ban on admissibility. This definitely restricts the scope of this privilege but provides for a balanced outlook. Laws must enable fair trial, privileges enable an atmosphere of confidence towards judiciary.

Disclaimer – The views expressed in this article are the personal views of the author and are purely informative in nature.