- The Hon’ble High Court (HC) of Keralain Alli Noushad v Rashedd & Anr, has observed that Section 122 of the Indian Evidence Act, 1947 (Evidence Act) on marital confidence must be re-visited in light of modern times where it is being used as a legal weapon by criminals to suppress their crime.
- Section 122 of the Evidence Act protects the communication between spouses, being privileged, by stating that the parties shall not be forced to disclose communication between them.
- The Court, whilst appreciating the sanctity of marriage, remarked the protection of disclosure of communication between spouses must not take precedence over bringing out the truth behind a crime.
- The present appeal before the Court was filed by a woman against the order of the Trial Court, acquitting her husband’s murderer. The accused murdered her husband on the suspicion that the deceased had an illicit relationship with his wife. The main witness in this case was the statement of a man who witnessed the incident.
- The accused’s wife, only evidence produced by the prosecution, deposed before the Trial Court. However, the Trial Court rejected the statement of the eye witness as unbelievable and strange on the ground that he did not make any noise or scream when the accused stabbed the deceased.
- The wife’s evidence as also rejected on the ground that it was protected under Section 122 of the Evidence Act as being privileged communication. The wife informed the Court about quarrel that ensued between her and the husband upon discovery of her chats with the deceased.
- Finding the evidence produced by the prosecution, the Trial Court acquitted the accused.
- The SC, while deciding the case, firstly remarked that the High Court’s conclusion with regards to the eye witnesses’ behaviour was illogical. The Court noted that individuals are distinct and each one reacts differently to the same situation. The law does not permit branding a witness as reliable or unreliable on the sole basis of such standard behaviour.
- With regards to the communication between the spouses, the Court observed that the bar of disclosure under Section 122 in only with respect to ‘communication’ made to a witness, being a married person, by their spouse during the marriage. Given this, the evidence produced by the accused’s wife, except the one relating to quarrel, can be accepted.
- The Court remarked that public interest must be kept at the forefront and that it is not inferior or subservient to the happiness and peace of a family. The Court remarked “One cannot keep happiness and peace of his family, after indulging in a crime and then seeking support of law to suppress it.”
- The Court also drew attention to Bombay HC’s recommendation in the case of Vilas Raghunath Kurhade v State of Maharashtra, wherein the HC recommended the State Government to approach the Law Commission or the Ministry of Law and Justice, Government of India with a proposal to amend the provisions of Section 122 of the Evidence Act.
- With this, the High Court set aside the decision of acquittal of by the Trail Court and sentenced the accused to imprisonment for life and fine, to be paid to the wife of the deceased.
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