Q. Discuss the provisions in respect to the ‘communications during marriage’, ’’Official Communications” and “Professional Communications” [MPCJ 2012]

Ans. All three types of communication fall in the category of privileged communication under Indian Evidence Act. That is, their disclosure is barred unless expressly permitted under the act. The relevant provision with respect to aforesaid type of communication may be discussed one after other-

Communications during marriage:- Section 112 of the act protects communication between the spouse from divulgence if made during the existence of the marriage. The rationale is disclosure of such testimony would have a powerful tendency to disturb the marital peace, to promote domestic broils and to destroy the feeling of mutual confidence which is the most endearing solace of married life. The section 112 of the act contains two parts. The first part applies where the witness does not wish to disclose the communication and mandates that in such situation such witness shall not be compelled to disclose it, while the second part contemplates a case where the witness is willing to disclose the communication and provides that in such situation the witness shall not be permitted to do so without the consent of other spouse. Thus, the court can neither compel the witness under section 132 of the act nor the witness can volunteer himself to testify. Such privilege remains in force even if communication was made without any confidential clause or the marriage between spouses has terminated. In this way, a otherwise relevant fact under section 6 to 55 of the act pertaining to the case in the form of such communication remains eclipsed unless any of the following exception is attracted.

  • Act apart from communication :- The hon’ble apex court held in Ram Bharosey vs State Of Uttar Pradesh AIR 1954 SC 704 that a wife could testify as to conduct of his husband because it was what she herself watched.
  • Disclosure of communication by third persons :- The hon’ble apex court held in

M.C. Verghese vs T. J. Ponnan & Anr, 1970 AIR 1876 that when a communication between the spouse is overheard by third party or third party comes into possession of communication of spouse in the form of correspondence then he may give evidence of the same but in such case chance of collusion, intent to defraud etc will be looked into.

  • Waiver of privilege :- Such consent by the opposite spouse may be given either expressly or by not objecting when other spouse stepps into witness box to testify.
  • Criminal or civil proceeding between the spouse itself :- When spouse is arrayed on the opposite side. Such as in criminal proceeding under section 498A IPC etc or wife seeking divorce on the ground of adultery etc.

Official Communications :-A document can claim privilege and protection under section 124 of the Evidence Act only if following conditions are satisfied-

  • That there is a public officer.
  • That any communication has been made to such public officer in official confidence.
  • That disclosure of such communication is prejudicial to the public interest.

If on the aforementioned ground, a privilege is claimed with respect to any document then the tendency to injure the public interest is examined by the court by examining such document.

Professional Communication :- Section 126 To 129 of the Evidence Act deals with professional communication between legal advisor and client. A client cannot be compelled nor the advocate or his clerk, servant etc be permitted to disclose such communication whether oral or in documentary form. The rationale is every person howsoever guilty he may be is entitled to a fair trial and for such fair trial the legal advisor requires knowledge of whole truth of the matter and in lack of such provision the client will hesitate to communicate fully and frankly due to fear that information given by him can be passed on to the opponent or to the court.

Once the relation of legal advisor or client is established then following type of communication passing between them becomes privileged one and remains so irrespective of the fact that such employment has terminated later on –

  • Communication made for the purpose of professional employment.
  • Legal advice given by the advocate.
  • The content or condition of any document which came to the knowledge of the advocate in the course of such employment.

The aforesaid rule is not absolute, it has following exception-

  • Communication made in furtherance of illegal purpose :- Section 126 of the act presupposes that the crime or actionable wrong is already over and now client needs to be defended for its past act. But, where client desires advocate to become privy of any crime or for the purpose of being guided or helped in committing it then such protection is withdrawn. In such situation, the advocate is at liberty to disclose or perhaps under section 40 of the Indian Penal Code obliged to disclose such communication if offence is of mentioned category.
  • Crime or fraud committed since employment.
  • Disclosure with express consent of client. Sec. 128 also clarifies that waiver cannot be implied from mere fact that the client gives evidence at his own instance or even if he calls the legal advisor as a witness unless he questions matter which is privileged.