Section 128 of the Bharatiya Sakshya Adhiniyam, (BSA), 2023
Section 128 BSA, 2023 — Text and Meaning
Provision:
Section 128 states that:
“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 their legal representative, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.”
Key Points:
Scope of protection:
Applies to all communications between spouses made during the subsistence of marriage.
Covers oral, written, and electronic communications.
Protection continues even after marriage has ended, provided the communication occurred during marriage.
Who can disclose:
Only with consent of the spouse who made the communication (or their legal representative).
Otherwise, the spouse who received the communication cannot disclose it, even voluntarily.
Exceptions:
Suits between spouses: e.g., divorce, maintenance, custody disputes.
Criminal proceedings: when one spouse is accused of committing a crime against the other.
Rationale Behind Section 128
Ensures marital confidentiality, allowing spouses to communicate freely without fear that their words will be used in court.
Recognizes the special trust and intimacy inherent in marriage.
Balances truth-seeking in court with protection of domestic privacy.
Scope and Limitations
Personal privilege:
The privilege belongs to the spouse who made the communication. The receiving spouse cannot waive it.
Not absolute:
Testimony about observed actions or events is not barred. For example, seeing a spouse commit a crime is admissible.
Communications heard or recorded by a third party may be admissible.
Timing:
Only communications made during the marriage are protected. Communications after divorce/separation are not privileged unless they relate to prior marital communications.
Forms of communication:
Oral, written, electronic, or other media.
Privilege is not limited to sensitive matters; even mundane communication is covered.
Case Law / Judicial Interpretation
Although Section 128 BSA is new, courts rely on precedents from the old Indian Evidence Act, Section 122, which dealt with marital privilege. Some important rulings:
Historic principles:
The privilege belongs to the spouse who made the communication. The receiving spouse cannot disclose without consent.
Communications remain privileged after the marriage ends.
Third-party overheard communications or independent evidence are admissible because the privilege applies only to the spouse’s testimony.
Testimony about conduct, appearance, or actions of a spouse is admissible even if related to a communication.
Supreme Court, Vibhor Garg v. Neha, 2025:
The Court held that secretly recorded telephone conversations between spouses could be admissible in matrimonial disputes (divorce, cruelty), despite marital privilege.
The Court emphasized that privilege protects domestic confidence, but exceptions exist in matrimonial disputes, balancing privacy with truth-seeking.
Other interpretations under old Section 122:
The privilege does not cover evidence obtained independently, e.g., written documents, third-party witness testimony, or observations.
Absolute marital privilege cannot prevent courts from accessing evidence in criminal cases between spouses.
Practical Implications
Civil/criminal cases unrelated to spouses: Communications remain privileged.
Matrimonial disputes or crimes between spouses: Courts can allow previously privileged communications.
Consent is crucial: Disclosure without the consent of the spouse who made the communication is prohibited.
Privilege is limited to testimony: It does not make all evidence inadmissible.
Summary
Section 128 BSA codifies marital communication privilege.
Protects confidential communications between spouses made during marriage.
Privilege belongs to the spouse who made the communication.
Exceptions exist for spousal disputes and crimes between spouses.
Recent jurisprudence balances confidentiality with truth-seeking, allowing courts discretion in matrimonial disputes.
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