The main legal point established in the judgment is that the prohibition against the disclosure of marital communications under S.122 of the Evidence Act applies to any person, and such communications cannot be proved in court by a third party, even if voluntarily delivered to the third party by the spouse. This principle led to the failure of the complaint for defamation in the case.

1. The material question involved in this Crl. R. P., which centres round S.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, 25 and 30,1964, from Bombay, his place of employment, to his wife in Trivandrum, who handed them over to the complainant in about September 1965 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 S.122 of the Evidence Act. The District Magistrate upheld the objection, held the prosecution unsustainable and therefore discharged the accused under S.253(2), 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 S.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 S.120 and 122 of the Evidence Act, which may be 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 proceedings in which one married person is prosecuted for any crime committed against the other." S.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. S.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 is 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 S.122 only.

5. Before I go further on the Section concerned, I may adv