By: Saumya Shankar & Pratik Rath
Section 122 of The Indian Evidence Act states that spouses shall not be allowed to reveal any communication between them, except with the consent of the other. The bar is not just limited to communications of a confidential character rather, the provision is applicable to all communications between the spouses, regardless of its nature.
The principle of privileged communication exists to safeguard the mutual trust between the partners in a marriage. There is no reasonable basis from which it could be inferred that the degree of trust between partners in a live-in relationship is lesser than that of a married couple. However, as Section 122 uses the term “marriage”, the provision is not applicable to live-in relationships.
Further, as held in the case of Dhannulal & Ors., the Court may presume under Section 114 of the Evidence Act that a couple is a married couple if they have been living together for a long duration of time and have presented themselves to the society as being husband and wife. However, this presumption is subject to a rebuttal that if it is proved that the couple did not actually marry, in its traditional sense then, there shall be no such presumption of marriage. Therefore, if evidence points to the fact that the couple is not married then, the privilege under Section 122 shall not be available.
In the opinion of the authors, the present situation cannot be said to be fair as the court depends on proof of traditional marriage which could very well be a piece of paper or the performance of certain customs or ceremonies against years spent by the couple as husband and wife, like in the case of a live-in relationship.
Privileged Communications
In Marriage
Section 122 provides that no married person can be compelled to reveal any communication between him/her and his/her spouse during marriage, subject to some exceptions. Marriage can be understood to mean a legally recognized social union, that is more of a divine, sacrament, and formal concept and is practiced as a ritual since ages.
In Live-in
Live-in relationships are not considered to be ‘marriage’. It is considered to be a relationship ‘in the nature of marriage’.
In the case of United States v. Acker, it was held that the privilege should only be available to those who have been legally married, and not to those who cohabit in the absence of marriage. Similarly, in Shankar v. State of Tamil Nadu, the accused had communicated with the mistress about his crime. The Court held that Section 122 could not be applied to the communication made by a man to his mistress. Where the lady is only a mistress and not a legally wedded wife, Section 122 does not in any manner come in the way.
To understand more about the present situation let us observe the decision pronounced by the English Court of Appeal. In this case, the accused was convicted of murder. The longstanding cohabitee gave evidence. If the longstanding cohabitee would have been married to the man, her evidence would not have been compellable. The couple in this case was living with each other for 19 years. They had three children to the marriage. The counsel contended that the judiciary should look to the substance and not the form of the relationship.
Further, the counsel argued that the Court should see marriages in the modern context, where it has undergone significant development worldwide, and interpret the provision accordingly. The contention of the convict was that the evidence of the partner should be considered to be equivalent to that of his wife. The Court rejected the contention and held that the application of the Section could not be extended to include partners not legally married. The Court observed that if such contention would be accepted it would cause grave difficulties in the enforcement of the criminal law.
However, in the opinion of the authors, the couple in this case were living in a live-in relationship and their communication should have been protected. The apprehension of the bench that the provision would be misused by persons who would falsely claim themselves to be husband and wife shall not be problematic in India at the current time because guidelines have already been laid down by the Hon’ble Supreme Court for the recognition of genuine live-in relationships.
Live-In and the Application of Privileged Communication
As stated earlier, Section 122 puts a bar on the disclosure of communication made between husband and wife. However, the Section has not yet been tested on the anvil of live-in relationships. The Section uses the term “marriage”. The said term has neither been defined in the Indian Evidence Act, 1872 nor the General Clauses Act, 1897. Hence, the question arises whether the term ‘marriage’ covers a live-in relationship.
The authors are of the opinion that since ‘marriage’ has not been defined and considering the increased recognition given to live-in relationships and its recognition as part of the right to life and liberty, it is desirable to extend the application of the privilege to couples in live-in relationships. There is no difference between a marriage and a live-in relationship except that the latter is more informal and is not universally accepted.
However, as discussed in the previous section of this article, there are some impediments in the form of views expressed in the previously mentioned judgments to the extension of the privilege to live-in relationships. However, the authors are of the view that the opinions of the judges are either distinguishable or are not applicable in the present time.
As stated earlier, in the case of Shankar v. State of Tamil Nadu it was held that where the lady is only a mistress and not a legally wedded wife, Section 122 does not in any manner come in the way. In the opinion of the authors, the reasoning used in Shankar v. State of Tamil Nadu shall not be applicable in a case of a live-in relationship because the facts in that case clearly show that they did not present themselves to the society as husband and wife, which is a pre-requisite for a live-in relationship. Moreover, there was an absence of trust between the accused and his mistress, the protection of which is the very objective of the provision. A woman in a live-in relationship cannot be equated to a mistress. In a live-in relationship, there is mutual trust between the partners, which if not protected will prove to be fatal.
Further, the judges, in the case of Regina v. Pearce, were apprehensive of the misuse of the provision if it was extended to a relationship such as a live-in relationship. The authors believe that the apprehension of the bench in Regina v. Pearce will not hold ground in light of the conditions laid down by the Indian Apex Court in the cases of D. Velusamy v. D. Patchaiammal and Indra Sarma v. VKV Sarma for the recognition of a genuine live-in relationship, i.e., the pair must present themselves as husband and wife, they must not already be in a marital relationship before entering into live-in, and cohabitation for a considerable duration.
A study of these conditions showcases that relationships in the nature of marriage are virtually no-different from marriage. However, what the State has failed to notice is that when these conditions are satisfied it leads to the establishment of a sense of trust between the parties which is indistinguishable from the trust that is present in a marriage. As already stated, the protection of trust is the primary objective of Section 122 and if the application of the Section is not extended to live-in relationship it shall be unjust on the part of the State because there is no rationale for distinguishing live-in relationships from marriage, so far trust between the partners is concerned.
There is a positive expectation in the hearts of the author that the present situation should however change in the future as live-in relationships have been recognized by the legislature in the Protection of Women from Domestic Violence Act, 2005. Similarly, the application of Section 125 Cr.P.C. was extended on the lines of the recommendation made by the Malimath Committee to live-in relationships in the case of Ajay Bhardwaj v. Jyotsna.
Furthermore, if a male and a female have been living for a long duration of time as a couple then it would be presumed, under Section 114, that there was a marriage between them. However, this presumption can be rebutted with strong evidence. Section 122 read with this presumption, if the application of the privilege is not extended to live-in relationships, would lead to the inference that trust between partners in a relationship depends entirely on few pieces of paper or the belief of the couple in the religious customs and/or ceremonies. Such an inference is unwarranted, in the opinion of the authors.
In light of the increasing recognition given to couples in a live-in relationship and considering the need to protect the mutual trust in the relationship, the application of privilege under Section 122 should be extended to both the parties engaged in a live-in relationship.
CONCLUSION
The authors are of the opinion that marriage should be seen in the modern context, where it has undergone significant development worldwide and the provision should be amended and/or interpreted accordingly. The application of privilege under Section 122 should be extended to both the parties engaged in a live-in relationship in order to protect the peace and mutual confidence in the family of persons living in a live-in relationship.
The same can be achieved through the means of an amendment by which definition of marriage can be inserted in the Act or an explanation could be added to the Section, under the said definition or explanation marriage shall include relations which are ‘in the nature of marriage’, the legislature can refer to judgments like D. Velusamy and Indra Sarma for a clear understanding of what can be regarded as a relationship in nature of marriage.
[Saumya Shankar and Pratik Rath, 3rd Year students of The Tamil Nadu National Law University, Tiruchirappalli.]