Point of Law: Section 122 of Act is compulsion on one among spouse to divulge communication transpired to him by other spouse during subsistence of their marriage.

ORDER :

The complainant in S.T.No.34/2017, 35/2017 and 39/2017 are the petitioners in the impugned common order passed on 06.05.2019 in Crl.M.P.Nos.472/2018, 424/2018, 423/2018, 473/2018, 425/2018 and 474/2018 pending on the files of Judicial First Class Magistrate-II, Ottappalam (for short ‘the court below’). It was pleaded in the above petitions that husband of the accused, Mr.T.C.Sachithanandan has acquaintance of the monetary transaction alleged in the complaint and therefore his examination as a witness is very much required to establish the case of the prosecution. An additional witness list is also produced alongwith the applications and that is sought to be accepted and examination of the witness proposed is sought to be permitted.

2. Respondent/accused in his counter statement filed in the petitions contended that the petition is filed only to create problem in her family life and therefore, seeks for dismissal of those.

3. The court below dismissed the applications vide the impugned common order observing that the petitions are filed as pressure tactics and holding that the matters intending through the examination of the proposed witness is nothing but privileged communication under Section 122 of the Evidence Act, 1872 (for short ‘the Act’). Accordingly, petitions are sought to be dismissed. The petitions are dismissed by the court below by a common order passed on 06.05.2019 and the petitioners being aggrieved by it, have now sought for the exercise of inherent powers of this Court under Section 482 of the Code of Criminal Procedure, 1973 to quash it.

4. The witness sought to be examined is none other than the husband of the accused in the prosecution, who according to the complainant has acquaintance of the alleged transaction involved in the prosecution.

5. The question called for consideration in the context on hand is whether oral evidence sought to be brought in through examination of the husband of the accused is privileged communication in view of the marital bondage prevailing among himself and the accused and will be hit by Section 122 of the Act.

6. Section 122 of the Act is extracted hereunder to have a definite idea on the communication called as privileged communication during subsistence of marriage.

“122. Communications during marriage.—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.”

7. Therefore, what is prohibited by Section 122 of the Act is the compulsion on one among the spouse to divulge the communication transpired to him by the other spouse during the subsistence of their marriage. The Section also provided that a spouse shall not be permitted to disclose such communication except in suits between married person or in proceedings in which one married person is prosecuted for any crime committed against the other or on consent being given by the person who made the communication or his representative-in-interest.

8. The evidence proposed to be adduced by the examination of the witness is to be tested in the back drop of the factual situation dealt with in common in the petitions on hand, which read as follows :-

9. From the above, it is clear that what is prohibited under the provision is communications made by the wife to the husband or vice versa, during the subsistence of their marriage. Whereas, what is sought to be brought in evidence by the examination of the additional witness whose name stands furnished to the court through an additional witness list is nothing but his acquaintance about the particulars of the transaction which allegedly created the monetary liability that led to the issuance of the chequ