Right to Privacy and Family law: Analyzing the Section 122 of the Evidence Act, 1872 within the Constitutional Conundrum

The Section 122 of the Indian Evidence Act, 1872 provides for spousal privilege when it comes to disclosure of the communication between a husband and a wife. The relation between spouses is considered pious and the disclosure of the communication they’ve had during the course of marriage is not allowed by law even if it means making the process of soliciting evidence even more difficult. There are of course exceptions to this rule which have also been discussed in this research work.

In recent cases it has been observed that there are other ways in which this rule might be eclipsed too. In the case of Preeti Jain v, Kunal Jain, it was observed that Family Courts have greater discretion when it comes to admissibility or rejection of evidence than Trial Courts. Moreover, a quandary has also arisen over the issue of right to privacy which is included in Art. 21 of the Constitution of India and whether communications can be protected on this ground too when prosecution is being undertaken. Various family laws and also the Family Court Act, 1984 have posed challenges and confusions over the admissibility and exemption of evidence on the basis of communications between spouses.

Emergence of Various Family Laws in India

Personal and religious laws have existed in India for a long time. In order to carry and preserve their traditions for future generations, the personal and religious laws have been in practice for a long time. It is also important to understand that these laws have emerged throughout time and not in nick of time. Indian citizens practise a variety of religions and ideologies. In situations concerning family affairs, such as marriage, divorce and succession, they are governed by various sets of personal laws. During colonization, matters related to religion were solved almost randomly based on charters. Gradually legislative reforms were also implemented, but the perception that religious and personal rules are unchangeable has prevailed.The final shape of the legislation controlling such personal concerns was amended by British policies, which defined what should be designated as a personal matter.

These family laws vary from religion to religion. There are 5 types of family laws that are followed in India, namely, Hindu law for Hindus, Christian law for Christians, Parsi law for Parsis, Muslim Law for Muslims and Special Marriage act for special circumstances. These different family laws have been derived from numerous sources.

First, let’s discuss the emergence of Hindu law. Hindu law has its origin from shrutis, smritis, vedas and other ancient sacrosanct texts. Dharmasastras and Upanishads also play a huge role in this. While, on the other hand, schools of jurisprudence and landmark judgements are a part of modern sources of Hindu law. Hindu law has emerged gradually. In history, the term ‘Hindu’ denotes not only a religion, but also a nation. The Hindu law has evolved through ages and continues to govern the social and moral aspects of Hindu life by incorporating various aspects of Hindu culture. In Ancient and medieval India, the concept of “dharma” was used to refer to  Hindu law. After colonization, Britishers used the term Hindu law” to refer to the law followed by Hindus and hence Hindu law emerged.

Sharia Law, Mohammedan law and Islamic law are all used to refer to Muslim law. In Arabic, Sharia means “right path.” It refers to the divine guidance that Muslims follow in order to live virtuous life and get closer to God in Islam. The Quran, which is believed to be God’s direct word, and hadith, that consists of thousands of sayings and practices attributed to the Prophet Mohammed that make up the ‘Sunna’—are the two fundamental sources of Sharia. Islamic emerged in India with the emergence of Muslim rulers. Until 1935, Muslims in India followed distinct norms based on their religious practices. This can be seen in the Khoja Muslims and Kutchi Memons. Some Muslim minority communities had Hindu-style inheritance laws and Hindu-style marriage rules. Many minority Muslim creeds were forced to embrace these laws even if they deviated from their traditions when a single Muslim Personal Law was developed. Minority groups had to accept these laws and traditions so that a uniform personal law could be established.

Indian Christians have existed as a minority group in India. They were a small minority group then, as well as now. As we all know, Christianity was not born in India. So the main question is why did people convert to Christianity? A research study discovered that not only people were sometimes forced to convert, but also, most of the people converted to Christianity so that Hindu or any other personal law could not be applied to them. The same study also concluded that Christian law emerged not just as a result of Indian Christians’ desires and demands, but also as a result of the colonial government’s unilateral formation. This means that the emergence of Christian law had political strategies too.

There is no reliable evidence of the origin of Parsis in India. In the face of Islamic persecution, the community descended from Persia (Iran) who came to India in pursuit of honor and security. According to history, they first resided in the Persian Gulf, but when they felt unsafe, they fled to India. They brought with them their tradition, religious practices etc. thereby establishing a community of Parsis in India also. There was a need for different family law for Parsis as prior to 1837, Parsis and their ties were governed by English common law, with some exceptions such as marriage and bigamy. Because there is no official adoption among Parsis, if a Parsi couple wishes to adopt a kid, that child will not enjoy inheritance rights.  There are many such laws in this religion that differ from others. Although the population of Parsis was not much in India, still providing them with their own law was what deemed fit to the law makers.

Now, moving to the last type of family law – Secular Law for Special Marriage act. Inter-caste and inter-religion marriages are covered under the Special Marriage Act. The Special Marriage Act is a special legislation designed to provide for a one-of-a-kind form of marriage by registration in which neither party must forsake their religion. In inter-caste marriages, there are numerous challenges that a couple must deal with. This is clarified by the special marriage act. The Special Marriage Act establishes a unique type of marriage, as well as its registration and divorce. This Act allows for the solemnization of a marriage between two people of any religion or creed. The court stated that because the Act is secular, it serves an important role in releasing people from traditional marriage obligations.

Since these religions and their practices differ from each other, it was important for them to have their own family or personal laws.

Section 122 and Marital Communication Privilege

The Indian Evidence Act provides for a Section 122 on marriage communication privilege, also known as spousal privilege. It states that a married person cannot be compelled to make public any communication that has happened between the person and their spouse, and also disallows the person from revealing such communication. It is a remnant of British colonial law, which itself was used in Britain.

The concept of spousal privilege is rooted in two medieval concepts, as observed in Trammel v. United States, in which a person could not incriminate against himself as he has an interest in the proceedings, and that the married couple was one, given the absence of an independent legal existence of a woman.  Because of this it was considered that a communication revealed by one spouse was anyway not admissible, and then it followed that the other spouse could not do so too. Moreover, given the lack of rights for women at that time, they were considered to be ‘property’ of men, which gave way to the logic that a person’s property will not be able to testify against the owner of that property.

There are two types of this privilege, Testimonial Privilege and Spousal Confidence privilege. Testimonial Privilege removes the duty on a witness to produce evidence against the accused, in this case, a spouse against a spouse. It exists to promote matrimonial harmony and prevent discord. This privilege is associated with older English laws. Section 122 of the Evidence Act 1872 is related to the Spousal Confidence Privilege. This privilege is concerned more with protecting the private communications between the spouses and prevents one spouse from disclosing such private communications during a testimony. It aims to protect Matrimonial Harmony.

There are a few exceptions to this privilege; one being that such communications can be admissible when the spouse who had made the communication in question gives their consent to let the communication be disclosed. However, if the spouse is dead, and nor is there a representative-in-interest appointed for that spouse, consent is not possible to be obtained, and thus, the communication cannot be admissible. Related to this is the case of Nawab Howaldar v. Emperor, in which the communication made by the husband before dying to his wife could not be admissible. Another exception arises if the spouses are in a suit against each other, with the word ‘suit’ referring to any legal proceedings between the spouses, as clarified by the 185th Report on the Indian Evidence Act of the Law Commission of India. A third exception is if one of the spouses is involved in a criminal charge, including bigamy.

Other exceptions include acts committed by a spouse are not termed as communications, for example, a wife seeing her husband hide a murder weapon after coming from the scene of crime is not private communication, and is admissible as per Ram Bharosey v. State of Uttar Pradesh. Moreover, communications that have been overheard by others are also admissible, as per Appu v. State, where a husband had confessed to his wife, while others were present nearby. The case also held that it is the individual that is being protected by Section 122, and not the communication. If a person intercepts a letter containing a communication between two spouses, the person is not restricted by the Section to not disclose its contents. In M.C. Verghese v. T.J. Ponnon, letters that had been written by the respondent to his wife, were admissible as evidence by the appellant.

There are a few problems with Section 122 however, that must be addressed. The first problem is the extension of this privilege even if the marriage has broken down. The communication must have been made during the marriage, but the privilege of this communication being inadmissible exists even after separation. The main provision it tries to protect, i.e matrimonial harmony, would be non-existent after separation. This can lead to absurd results, which can hinder justice. Although this provision is also traced back to colonial times, the English law itself has done away with this provision. In the Police and Criminal Evidence Act, 1984, the ex-spouse, after divorce, is considered to be a competent witness against the accused spouse. This allows for the former spouse to appear as an ordinary witness not bound by the restrictions of communication privilege.

Moreover, this section can be a hindrance in cases of child abuse by parents. If one of the parents abuses the child, it is common that the child would complain to the other parent. A communication would take place between the two parents, but it would be rendered inadmissible, which would prevent justice for the child, as only the child’s testimony paired with a lack of medical evidence can be seen as unreliable. A related case is of Fatima v. Emperor, where the mother murdered her child. The husband had evidence of this, which would have aided to convict the mother, but the evidence was rendered inadmissible under Section 122. Here, the section was going against itself, as it sought to protect matrimonial harmony that obviously didn’t exist because one spouse killed their own child.

In order to prevent this injustice from happening, it is important that the extension of the privilege of Matrimonial Communication to former spouses be removed, and that exceptions be added to this privilege in cases of child abuse too. Below there are three cases that have been discussed in detail, which are related to the concept of Matrimonial Communication and the significant role they have played in shaping this concept.

Relevant Cases

It is imperative to discuss some important cases in respect to Sec.122 of the Indian Evidence Act, 1872 here. Moreover, the spousal privilege of privacy which parties to a dispute are entitled to require some cases to further clarify the topic. These cases also provide us with a Constitutional perspective of the issues pertaining to this research. Some relevant and significant cases are as follows:

PREETI JAIN v. KUNAL JAIN

In this case, the husband i.e. Kunal Jain accused his wife i.e. Preeti Jain of adultery and sought divorce for the same cause and reason. The evidence that was provided in support of adultery committed by his wife was the video footage of Preeti with some other man recorded with the help of a pin-hole camera which is very small in size and is generally undetectable to normal human vision. The learned counsel of the respondent i.e. the wife stated in the Family Court that this video recording was not an admissible piece of evidence as it did not satisfy the requirements set forth in the Sec. 65B of the Indian Evidence Act, 1872. Furthermore, the evidence was also not applicable as the same also violated the Sec.122 of the stated act. The counsel emphatically stated that this video recording must be included under spousal privilege that is postulated by sec.122 of the act under discussion.

Moreover, the learned counsel also said that this recording was violative of Article 21of the Constitution of India which also included the right to privacy. That this recording was inconsistent with and violative of the right to privacy was also set forth by the defendant’s counsel. The Family Court did not consider the side of the respondents to be appropriate and admitted the recordings as evidence.

Appeal was made before the Rajasthan High Court to oppose the order of the family court. Th High Court upheld the Family Court’s order and stated that the Family Court had the discretion to accept or reject such evidence under Sec. 14 of the Family Court Act, 1984. Sec. 122 and 65B of the evidence act were eclipsed by Sec. 14 of the family court act. Moreover, the video recording was primary evidence and not a secondary one so it cannot be made inadmissible on that ground either. Considering all these facts, the appeal was dismissed.

This case is very important when we consider the importance of Sec. 122 of the Indian Evidence Act, 1872 as it also considers the issues that might arise out of the conflict of the same with Art. 21 of the Constitution of India which among other things, entails the right to privacy of every citizen of India. This order of the Rajasthan High Court did not admit that the video recording was violative of the right to privacy of Preeti Jain and dismissed the appeal. This case also provided insights on the sec. 65B and Sec. 122 of the Indian Evidence Act and whether they could be eclipsed by Sec.14 of the Family Court Act, 1984.

S.J. CHOUDHARY v. THE STATE

In this case, the accused was charged under Sec.302 of the Indian Penal Code for the murder of one Krishan Sikand by the means of a bomb explosion in the deceased’s house. Rani Choudhary, the ex-wife of S. J. Choudhary, the accused went to live with Krishan Sikand after parting ways from the accused without getting a formal divorce. Rani Choudhary was the widow of Late Pritam Singh. She married S.J. Choudhary in 1971 but left him in 1976 without divorcing. In 1979, she obtained a divorce decree against the accused ex-parte from a trial court. The same was challenged before the Delhi High Court by the accused and the Court set aside the trial court’s decision. This decision was appealed by Rani before the Supreme Court and the Court reversed the High Court’s decision and reinstated the former Trial Court decision.

There were many pieces of evidence solicited from the witness i.e. Rani. Initially, the accused did not object to this but after a considerable amount of time, he did object to the evidences on the ground that they were inconsistent with the provision of Section 122 of the Indian Evidence Act, 1872. The Trial Court did not admit this request stating that it was too late to accept the request now as the evidences had already been considered. However, the Delhi High Court stated that the exceptions under Sec.122 were almost absolute and were limited by only a few exceptions. This case did not fall within those exceptions. However, only the communications before the divorce were considered. The core contention raised here was that whether the divorce will be applicable from 1979 when the decision of the Trial Court was made or from 1982 when the order of the Supreme Court was set forth. The Delhi High Court decided that the decision of the Trial Court will be considered as the Apex Court merely reinstated the same by setting aside the High Court’s order. Hence, only the communications made before 1979 will be exempted under the provisions of Section 122 of the Indian Evidence Act, 1872.

Conclusion

By reading this paper we come to a conclusion that family law and privacy come together at some point i.e. they go hand in hand. The development of family law is discussed here, all 5 types of family laws followed in India is mentioned i.e. Hindu, Muslim, Christian, Parsi and Secular law. There is a need for distinct law so that the religious traditions are preserved since these personal and family laws have existed throughout history.

Some findings of the paper include:

  • India’s legal system consists of different family laws for Hindus, Muslims, Parsis and Christians.
  • Each religion has distinct family laws that govern matters related to marriage, succession, divorce etc.
  • A special Marriage Act was enacted in India to regulate inter- caste and inter- religion marriages.
  • Spousal privilege is a relic of British colonial law that was also applied in Britain itself. However, it has ceased to exist now.
  • The aim of this privilege is to protect Matrimonial harmony between the couple.

Further, the section of spousal privilege of Indian Evidence Act is explained along with Marital Communication in detail. This section talks about how one spouse can never be forced to speak the details of private communications even at the time of testimony. Two relevant cases have also been discussed in the research paper that is related to Spousal privilege of Indian Evidence Act to help in better understanding.

Some suggestions include:

  • Since the main goal of spousal privilege is to protect matrimonial harmony, after the separation, it should cease to exist.
  • These is a need for modification of this section of evidence act as it acts as a hindrance in cases of child abuse and also hampers justice.

Author: Sankalp Mirani- MNLU Mumbai – a Legal Researcher,  in case of any queries please contact/write back to us via email chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

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