M. Madhavan Nair, J.
1. The material question involved in this Crl. R. P., which centres round Section 122 of the Evidence Act, is of considerable general importance, but not of easy solution. Though I have been treated with elaborate discussions by counsel, displaying considerable learning and research, I must confess that I do not feel clarified of all obscurity about it.
2. This motion is in a prosecution for defamation launched on September 17, 1965, before the District Magistrate, Trivandrum, by a father-in-law (hereinafter the complainant), against one of his sons-in-law (hereinafter the accused on account of imputations made in three letters sent by the latter on July 18, 28 and 30. 1964, from Bombay, his place of employment to his wife in Trivandrum, who handed them over to the complainant in about September, 1966, when dissensions arose between her and the accused.
3. Counsel for the accused before the District Magistrate raised a preliminary objection to the prosecution on the ground that the words that are complained to be defamatory being part of marital communications between the accused and his wife, cannot be permitted to be disclosed in Court and therefore cannot form the basis of a prosecution, and also on the ground that a communication between husband and wife cannot be a publication in law both on account of the unity of the spouses and the prohibition of disclosure in Section 122 of the Evidence Act. The District Magistrate upheld the objection, held the prosecution unsustainable and therefore discharged the accused under Section 268(9), Crl. P. C. On a motion by the complainant, the First Additional Sessions Judge, Trivandrum, revised that order of discharge, held "that communicating a defamatory matter by the husband to his wife is publication in the eye of law" and "that the privilege contemplated under Section 122 of the Evidence Act can be claimed only by the husband or the wife when they are called to depose as witnesses, and that the communications as such are not privileged" and, therefore set aside the order of the District Magistrate and remitted the case for "further enquiry into the complaint." The accused has come up in revision against the latter order
4. The law relating to evidence of communications between husband and wife is contained in Sections 120 and 122 of the Evidence Act. which may he read here.
"120. In all civil proceedings, the parties to the suit and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respectively shall be a competent witness.
122. No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceeding in which one married person is prosecuted for any crime committed against the other."
Section 120 enacts that in criminal proceedings (as the one concerned here) the spouse of the accused may be cited as a witness. It relates to competency of a wife or husband as the case may be, to be a witness in the cause, for the prosecution or for the defence. Section 122 commands that a wife or husband cannot be compelled to disclose and, even if she or he is willing to do so be permitted to disclose any communication made to her or him by the spouse, except on express consent of the latter, or if he or she it no more, of the legal representative. The dispute in this case is not on competency of the wife of the accused being a witness for or against him--no occasion therefor has arisen in the case--but of admissibility of proof of disclosure by the wife of the accused of communications made by him which are meant for her alone. This case therefore turns on the construction of Section 122 only
5. Before I go further on the section concerned. I may advert to some of the rulings discussed and relied on strongly at the bar
Counsel for the accused contended that the exclusion, under Section 122 of the Indian Evidence Act of what would otherwise have been cogent evidence, is based on the English common law doctrine of unity of spouses or the sacredness of domestic union. The same contention had been considered by the Court of Appeal in Shenton v. Tyler, 1939 Ch 620, and by the House of Lords in Rumping v. Director of Public Prosecutions, 1964 AC 814. The findings in those decisions are that the common law rule was not of exclusion of evidence of marital communications but of incompetency (as was recognised in the Evidence Act. 1843), of either spouse being a witness for or against the other that the occasion for a rule of such exclusion arose only when competency of one spouse to be a witness in the other's cause was recognised by the Evidence Amendment Act, 1858 (civil proceedings) or the Criminal Evidence Act, 1898 (criminal proceedings) and that when the occasion arose the concerned statutes enacted it as a privilege of a husband or wife to withhold communications made to him or her during marriage by the other spouse Section 3 of the Evidence Amendment Act, 1853, reads thus:
"No husband shall be compellable to disclose any communication made to him by his wife during the marriage, and no wife shall be compellable to disclose any communication made to her by her husband during the marriage."
To the same effect is Section 1(d) of the Criminal Evidence Act, 1898
6. The question in 1989 Ch 680, was whether a widow could be compelled to answer interrogatories designed to obtain from her admissions as to a secret trust imposed on her by her late husband Simonds J. disallowed it; but the Court of Appeal reversed him. Sir Wilfrid Greene. M.R., observed:
" I conclude that the alleged common law rule of privilege protecting marital communications as such never existed This view is confirmed by the language used by the Common Law Commissioners in the passage from their Second Report already quoted In that passage they recommended that marital communications should be protected; they do not suggest that the law as it then stood protected them already This recommendation was, as I have already said, adopted by the Legislature in language apt for the enactment of a new rule, and not for the preservation of an existing one. If the alleged rule of privilege existed, the question would, of course, arise--whose was the privilege? Was it that of the spouse who made the communication? Or of the spouse to whom it was made? Or of both? If the alleged rule was designed to protect marital confidence, the privilege should apparently have been that of the spouse who made the communication; or perhaps of both spouses: but not that of the spouse to whom it was made. Yet the Legislature has enacted in Section 3 of the Act of 1853 that the privilege shall be that of the spouse witness who can accordingly, if be or she desires, disclose all confidential communications made to him or her by his or her spouse, however unwilling that spouse may be to have the disclosure made. Moreover, the alleged common law rule is said to apply to all marital communications, whereas the statutory privilege conferred by Section 3 of the Act of 1858 only protects communications made to the witnesses.
If my view is right that the only rule that exists is that contained in Section 3 of the Act of 1863, it remains to consider whether, under that section, upon its true construction, the privilege continues to exist after the marriage has come to an end. In my opinion it does not. The section in terms relates only to husbands and wives; and no principle of construction known to me entitles me to read into the section a reference to widowers or widows or divorced persons
Luxmoore L. J also observed:
"I should point out that the statements in the most recent text-books for example, the Twelfth Edition of Taylor on Evidence and the Hailsham Edition of Halsbury's Laws of England. Vol 13, title 'Evidence' with regard to the position of husbands and wives with reference to communications passing between them do not appear to be accurate
"The conclusion at which I have arrived is that, before the passing of the Evidence Act, 1851, there was a rule of the common law that communications between husband and wife were not admissible in evidence; and since the evidence was itself inadmissible, no question of privilege arose: and there was, therefore no rule dealing with this aspect of the case. It was not until the evidence of the husband or wife became admissible by reason of the Evidence Act. 1851, and the Evidence Amendment Act 1853, that the question of compellability arose, and was met by the express provisions of Section 3 of the last mentioned Act The privilege therefore, appears to me to rest entirely on the provisions of Section 3 of the 1853 Act: and I am satisfied that there was and is no rule of common law, apart from those provisions, conferring or recognising any such privileges
The question arises, how far does this statutory privilege extend? The section is silent as to widower or widow, or divorced persons None of the cases cited have in my opinion any bearing on this question In Stephen's Digest of the Law of Evidence, 12th Ed., p. 146, it is stated that it is doubtful whether Section 3 of the Act of 1853 has any application to a widower or divorced person, questioned after the dissolution of the marriage, as to what had been communicated whilst it lasted, a statement which must apply with equal force to 8 widow
Plainly, the words of the section do not include the case of any persons other than husbands and wives; and since I have come to the conclusion that the privilege is statutory, I am unable to find any warrant for extending the words of the section by construction so as to include widowers and widows and divorced persons.
It is for these reasons, the majority of which were not put before the learned Judge, that I have arrived at a different conclusion to that reached by him; I hold that there is no ground on which the defendant, who is a widow, is entitled to refuse to answer all or any of the interrogatories propounded on behalf of the plaintiff "
Finlay J agreed with both. Accordingly the widow was compelled to answer the interrogatories to disclose her late husband's communication
7. In 1964 AC. 814, the appellant, who was the mate of a Dutch ship, broke open into a house at a port in the Irish sea and, after committing rape on a young woman there, murdered her and escaped to the ship which sailed off to Liverpool After the ship had sailed he entrusted a closed envelope, addressed to his wife in Holland, to another member of the crew requesting him to post it at some place outside the United Kingdom. When the ship reached Liverpool he was arrested. The seaman, to whom the letter was entrusted, handed it over to the Captain of the ship, who opened it at the request of the Police, when it was found to read: " Here is a little letter from me to tell you something very grave I have done something in a fit of madness. You will never be able to for give me for it. When you receive this you will perhaps never see me again but if something is asked of you just tell them about my fits of rage and that I do things which later I can never remember again." The trial Judge admitted the letter in evidence and convicted the appellant. The Court of Criminal Appeal upheld it. The appellant went before the House of Lords by special leave Lord Reid observed:
"The case for the appellant is that there is a rule or principle of the common law which protects communications between husband and wife which are not intended to be disclosed to others.
Before the enactment of a series of statutes beginning in 1861 it had been a longstanding rule that no party to a civil action, no accused person, and no husband or wife of such a party or person could give evidence at all.
Under Section 3 disclosure of these communications is not made incompetent. On the contrary the husband or wife who is a witness can disclose them if he or she chooses to do so and the other spouse has no right to object. It is a mystery to me why it was decided to give this privilege to the spouse who is a witness it means that if that spouse wishes to protect the other he or she will disclose what helps the other spouse but use this privilege to conceal communications if they would be injurious, but on the other hand a spouse who has become unfriendly to the other spouse will use this privilege to disclose communications if they are injurious to the other spouse but conceal them if they are helpful.
Lord Morris of Borth-v-Gest spoke:
After 1853 a husband (whether not he or his wife was a party in the action was not compellable to disclose a communication made to him by his wife during the marriage But if he wished to do so he could. That was quite inconsistent with any rule making such a communication inadmissible in evidence A privilege against disclosure was Riven, but it was one that could be waived: if waived it would be waived not by the spouse making the communication but by the spouse to whom it was made. .
The Act of 1898 effected a notable change in the law It provided that a person charged with an offence and the wife or husband of such a person were to be competent to give evidence for the defence. But a person charged need only give evidence if he wishes to do so and the wife or husband of a person charged (except as provided in the Act see Section 4) is not to be called as a witness except on the application of the person charged In terms similar to those contained in the Act of 1853 husbands and wives are protected from being compellable to disclose communication made to each other during the marriage if, therefore, after 1898, the wife of a person charged is (on his application) called as a witness she is not obliged to disclose any communication made to her by him during marriage: if however, she so desires she can do so
The statutory provision is therefore not one as to the inadmissibility of evidence but one conferring a privilege: the privilege is one that may be waived by the witness to whom a communication was made.
My Lords, a survey of the authorities and of the statutory provisions leads me to the view that there has never been a rule at common law that no evidence may be given by anyone as to communications made between husband and wife during marriage. . . .
It follows from the opinions that I have expressed that I find myself in respectful agreement with much that was said by Greene M R in his judgment in 1939 Ch 620, though the actual decision in that case has no present relevance and calls for no expression of opinion."
Lord Hodson and Lord Pearce agreed with Lord Morris of Borth-y-Gest. Viscount Radcliffe dissented to hold:
"No doubt society has an interest in the successful detection and prosecution of crime, but it is axiomatic that it postpones that interest to such considerations as the indecency of listening to evidence obtained by torture or intimidation or improper inducement. The only question here is whether or not listening to the confidential communications passing between husband and wife should be included among those considerations.
My conclusion is that there exists a principle of law which calls for the exclusion of his letter, whatever may be the form in which it is tendered as evidence. I accept that the law did not adopt or apply any general rule that gave effect to this principle by excluding marital confidences in all circumstances. It would have been the sort of rule to which there would have had to be exceptions anyway; for instance in criminal cases, such exceptions as are now preserved in Section 4 of the Criminal Evidence Act. 1898, and, in civil cases, such disputes between the spouses themselves on property rights as are provided for by Section 17 of the Married Women's Property Act, 1882. The area for such disputes was opened up only late in the history of our law, and then by statute, and I doubt if it would have occurred to anyone to argue that it was an appropriate subject for the application of the principle safeguarding the marital confidence."
In view of the pronouncements in the above two cases, wherein the prior decisions have been reviewed, I am not adverting to the earlier English decisions referred to at the bar. However. T may mention here that the oft-quoted R. v. Pamenter, (1872) 12 Cox CC 177, wherein Kelly C. B. rejected as inadmissible a letter from a prisoner to his wife which had been intercepted by a constable who had undertaken to post it is no longer good law in England in view of its disapproval by the House of Lords in Rumping's case, 1964 AC 814. (cited supra)
8. Obviously, the expression in the English statutes on evidence of marital communications is substantially different from that in Section 122 of the Indian Evidence Act; and there was no common law rule in England which may be said to have been the foundation for our Section
122. Under the English statutes it is a privilege enuring to the recipient of the communications and not to the maker thereof, which the recipient may waive to make a disclosure thereof when the maker cannot object. It avails husbands and wives but not widowers, widows, and divorcees. But under the Indian statute (Section 122) it is a privilege of the maker waivable by the maker, and a prohibition against the recipient which cannot be contravened by the recipient even after the maker's death In view of such vast difference in the statutes concerned, the English precedents are of little assistance here.
9. The statement, in Phipson on Evidence (9th Edition, page 213), of the principle in the above-referred provisions of the English statutes thus, viz.
"The protection has been considered requisite in order to ensure that unlimited confidence between husband and wife upon which the happiness of human life and the peace of families depend "
may hold good in regard to Section 122 of the Indian Evidence Act also. But such a general observation cannot be of much help in construing the particular expression of the Indian statute or in analysing its scope and effect.
10. Counsel for complainant read Section 102 of the Evidence Ordinance 3 of 1091 of the Revised Laws of the Turks and Caicos Islands, 1909,--which is in expression, identical with Section 122 of our Evidence Act--cited and construed in Daniel Youth v. The King, AIR 1945 PC 140. I must confess my inability to discover the ratio of that decision. The appellant and his wife were jointly prosecuted for a murder; The wife had made a statement to the Police, which contained disclosure of a communication made to her by her husband as to how he murdered the deceased and secreted the sticks used therefor; and it led to the discovery of two blood-stained sticks from two cave holes in their compound. That statement was put in evidence by the Police and acted upon by the Court against her. The appellant, who was also convicted, appealed to the Supreme Court of Jamaica and urged that as a marital communication his wife's statement was inadmissible in evidence and that its admission vitiated his trial and conviction. The Supreme Court of Jamaica overruled him He took the matter before the Judicial Committee of the Privy Council and their Lordships observed:
"This objection was overruled by the presiding Judge, but the jury were warned with the greatest care both then and subsequently and in the summing up that this statement was not evidence against the husband and must not be taken into consideration in determining his guilt or innocence Neither of the accused elected to give evidence and both were found guilty of murder. Daniel Youth alone appealed to the Supreme Court of Jamaica, his contention being that the statement was inadmissible against him and whatever warning may have been given it must have so influenced the minds of the jury as to have made his trial unfair
His appeal was dismissed on 80th May, 1948, on the ground that the statement was admissible for and against the wife and that the jury had been warned that they were on no account to take the statement as evidence against the husband. Their Lordships find themselves in agreement with the Supreme Court. ... as to (Section) 102, it was said that the statement contained a communication made by the husband and was therefore inadmissible since no consent had been given. Their Lordships do not find themselves able to accept these arguments. Both sections (one of the sections being Section 102) appear in a roup of provisions entitled 'Production and Effect of Evidence', and under the sub-heading 'Witnesses'. From these headings it would appear that the sections deal and deal only with witnesses called to give evidence in Court. . . The Section (102) is dealing with evidence given in the witness-box, and meant that marital disclosures cannot there be given in evidence against an accused. The statement under consideration was neither given in evidence nor disclosed as evidence against the husband. It was admissible for and against the wife, and was rightly used evidence in her ease. The appellant has no cause of complaint under the sections. The statement was not put in against him, but was properly used in the case of his co-accused, and the Jury were carefully warned against paying any regard to it in his case. In their Lordshops' view, therefore, the, sections do not avail the appellant "
Considerable reliance was placed on the observations of the Judicial Committee that the Section 102 (which corresponds to Section 122 of the Indian Evidence Act) "is dealing with evidence given in the witness-box and means that marital disclosures cannot therefore be given in evidence against the accused." Those observations, no doubt, support the complainant's contention here. But along side those observations, their Lordships have held that the statement was not admissible against the accused. The passage cited above shows that their Lordships held again and again that the statement was inadmissible against the accused and that the jury were rightly warned by Court "that this statement . . . must not be taken into consideration in determining his guilt or innocence." If the privilege under Section 102 of the Evidence Ordinance (our Section 122) related only to testimony of a spouse in the witness-box, it is not clear why the Judicial Committee excluded evidence of the wife's statement as concerns the accused. Her statement as to what the accused--her husband--told her did not form part of her testimony in the witness-box, for the was not called as a witness at all. Its exclusion is not referred to any other law than Section 102 of the Evidence Ordinance What their Lordships held in regard to the accused it therefore clear authority for the position that a wife's disclosure out of Court of what her husband told her cannot be proved in Court against the husband.
11. Now I come to the Section proper. In order to impress on me the effect of Section 122 of the Evidence Act. Counsel for the accused emphasised the purpose of the enactment being the protection of marital confidences which is essential for the continued sustenance of marital relations that pave the way for welfare of the succeeding generation. But then it may be asked why a father's communication to his young son, warning him against the company of a bad character, is not given a like protection. It may be difficult to give a logical reason for such a discrimination. To me the answer appears to lie in the fact that law did not arise from logic but from experience. Probably experience did not call for a special protection from disclosure of such communications as it did in cases between husband and wife, lawyer and client, and the like. However this need not be pursued further here, as such considerations are apt to be elusive, illusive and unsafe. Safety lies is taking the expression as given by the legislature and reading the same grammatically to understand its import.
12. The case here is that the accused's wife handed over to the complainant the letters sent to her by the accused, and the controversy is whether those letters, which will not be permitted to be proved in Court by her, may be permitted to be proved by her father on voluntary delivery by her. It is not pretended that her handing over of those letters to the complainant had the consent of the accused. The contents of those letters make clear that they were meant for the wife and not to anybody else at all. Counsel for the complainant contended that the prohibition enacted in Section 122, the Evidence Act, applies only to a spouse and has no relevance to others who may, by any means, come by the letters. If this contention be accepted, I am afraid, the section will be rendered illusory, and what the wife is not permitted to do herself she can do through a relation of hers to the prejudice of her husband. What the law in Section 122 of the Evidence Act inhibits is disclosure of marital confidence. It cannot be contravened by a spouse through the medium of his or her parent
Wigmore, in his treatise on Evidence (vide paragraph 2339) pertinently observes:--
"(2) For oral disclosures voluntarily made to a third person by one spouse relating a confidential marital communication of the other, the privilege still applies, for it belongs to the original communicating one.
(3) For documents of communication coming into the possession of a third person, a distinction should obtain. . .. i.e. if they were obtained from the addressee-spouse by voluntary delivery, they should still be privileged (for otherwise the privilege could by collusion be practically nullified for written communications); . . ."
It is at very familiar principle that you cannot do that indirectly which you are prohibited from doing directly
13. It is contended by counsel for the complainant that, in the context of the Evidence Act which relates to evidence Riven in a judicial proceeding, Section 122 has no relevance or application to a disclosure made out side the Court as the case here is. Counsel for the accused urges that the section does not limit its prohibition against disclosure to the four walls of the Court and compares the wording of the Section to that of Section 129 of the same Act The provision in the latter Section (129) is "No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser..." while the provision in the former Section (122) is "No person shall be compelled to disclose any communication made to him during the marriage . . nor shall he be permitted to disclose any such communication, unless the person who made it or his representative in interest consents. . . " The absence of the words "to the Court" in Section 122 and their enactment in Section 129 appear to be significant Section 122 of the Evidence Art is of general application and anything done contrary thereto should not be heard or accepted in evidence in a Court of law The fact that a motion for divorce or for declaration of nullity of marriage has been made by the wife will not save the wife from her obligation under Section 122 of the Evidence Act, which, by the very wording of the Act, is to continue beyond the subsistence of the marriage
14. The averments in the complaint show that the complainant was privy to his daughter's contravention of her legal obligations under Section 122 of the Evidence Act. Paragraphs 9 to 11 of the complainant read thus:
"9. The above imputations were published first to his wife Rathi at Trivandrum City within the jurisdiction of this Court. From the nature of relationship between accused and his wife Rathi and circumstances disclosed in the letters above and other letters of the accused to his wife Rathi, it is amply clear that the accused knew that the contents of those letters would be read by others also
10 Complainant's daughter Rathi placed the letters of the accused in the hands of the complainant and others in connection with her seeking reliefs for her grievances when alone the complainant came to know of the making of the defamatory imputations referred to above. Hence the delay in filing this complaint.
11. By making and publishing these defamatory imputations the accused has committed the offence under Section 500 of the Indian Penal Code"
There is no allegation that the accused showed the letters to any other than his wife, or that he directed or allowed her to show the letters to any third person. It is plain enough from the contents of the letters that what he wrote was intended exclusively for her eyes alone. Paragraph 10 of the complaint is clear that she betrayed him when she "placed the letters of the accused in the hands of the complainant." When law commands that she shall not be permitted to disclose "any communication" made to her during marriage by her husband, the complainant, her father, ought not to have received those letters and read them. I am afraid that his prying into the letters of his son-in-law to the daughter was indecent, unwarranted and unlawful in the light of Section 122, Evidence Act I am also afraid that he cannot take advantage of a wrong to which he was a party or privy and found a cause for complaint thereon. Further, there is no case in the complaint that the accused's wife showed the letters to any particular person other than the complainant. If from the hands of the complainant it got wider publicity the accused cannot be made responsible therefor. It is not disputed that a communication to be defamed himself will not be a publication within the meaning of defamation law.
15. On the second question as to whether a communication by a husband to his wife would amount to publication in law, the precedent in Wennhak v. Morgan, (1888) 20 QBD 635, appears pertinent The question there was whether the handing over of a letter with a libellous imputation by the libeller to his wife was publication Baron Huddleston, with concurrence of Manisly J., held "that the uttering of a libel by a husband to his wife is no publication." Though the reason for that dictum was the common law recognition of unity of spouses, I think that the same result must follow when communications between husband and wife are precluded by statute from being disclosed; for that which cannot he or is not proved in Court has to be assumed as nonexistent in the eye of law.
16. The dispute on the contents of those letters being defamatory has not been decided by either of the Courts below and is not therefore allowed to be canvassed here.
17. If the letters written by the accused to his wife cannot be proved in Court, either by herself directly or through her father in whose hands she has voluntarily placed them (as I have already held), the imputations therein fall outside the Court's cognizance. The complaint in this case must then fall. The District Magistrate was therefore right when he discharged the accused under Section 263(2) of the Code of Criminal Procedure. .
18. In the result. I accept this Revision Petition, reverse the judgment of the Sessions Judge and restore that of the District Magistrate.