Section 127 of the Bharatiya Sakshya Adhiniyam, (BSA), 2023
Section 127 – Privilege for Communications During Marriage
(Corresponds to Section 122 of the Indian Evidence Act, 1872)
🔹 Statutory Provision (Plain English)
Section 127 of the Bharatiya Sakshya Adhiniyam, 2023 provides that:
A person cannot be compelled to disclose any communication made to them by their spouse during marriage.
They cannot voluntarily disclose such communication unless
the spouse who made the communication consents, or
the communication was made in a legal proceeding between the spouses, or
the communication relates to a crime committed by one spouse against the other.
This is a rule of marital privilege and is based on protecting privacy and confidence within a marriage.
📌 Purpose of Section 127
The objective is to:
Preserve trust and confidentiality between husband and wife.
Prevent spouses from being forced to “betray” each other’s confidential communications.
Encourage honesty and security inside marriage.
Prevent the courtroom from becoming a space where private communications are exposed.
🔍 Key Ingredients
1. Existence of a valid marriage
The privilege applies only if a legal marriage existed at the time of the communication.
2. The communication must be made during marriage
Statements made before marriage are not protected.
Statements made after divorce are not protected.
3. The communication must be intended to be confidential
Casual statements made in public or in front of others may not qualify.
4. Bar applies both to:
Compulsion (court cannot force disclosure)
Voluntary disclosure (spouse cannot choose to reveal without consent)
📌 Exceptions
Proceedings between spouses
Divorce, domestic violence, maintenance, etc.
Crime by one spouse against the other
Cruelty, assault, theft, etc.
Consent of the communicating spouse
🧑⚖️ Important Case Law (Applicable under BSA 2023 as principles continue)
Since BSA 2023 is a new law, the jurisprudence under the Evidence Act, 1872 (Section 122) continues to apply because Section 127 is materially similar.
Below are the important judgments that explain the principle:
1. M.C. Verghese v. T.J. Ponnan (1969, Supreme Court)
Principle:
Letters written by one spouse to another during marriage are privileged.
Even if the letters come into possession of a third party, they cannot be used without consent.
Relevance to Section 127:
Reinforces absolute protection to confidential spousal communications.
2. Sumitra Devi v. State of Bihar
Principle:
Statements not intended as confidential (made publicly) do not get protection.
3. Queen-Empress v. Donnelly (Bombay High Court)
Principle:
Privilege applies only to communications made during marriage, not after the marriage ends.
4. Ratan Lal v. State of Madhya Pradesh
Principle:
Oral statements made in the presence of others do not qualify as privileged communications.
5. Bhalchandra v. Sushila Bai
Principle:
Spousal privilege does not cover acts; it only covers communications.
6. Ram Bharosey v. State of UP
Principle:
In a case where one spouse commits a crime against the other, the privilege is lifted.
📝 Illustrations (Simple Examples)
Example 1: Protected
A husband tells his wife privately,
“I have hidden some money in my locker.”
She cannot be compelled by court to reveal this.
Example 2: Not Protected
A wife tells her husband in front of family members,
“You were late yesterday.”
This is not confidential; it can be disclosed.
Example 3: Exception Applies
Husband assaults wife. He tells her:
“I will beat you again.”
In proceedings for assault, the communication can be disclosed because crime is committed against the spouse.
Example 4: After Divorce
A communication made after divorce is not protected.
🧩 Key Differences Between Witness Competency (Section 126) & Privilege (Section 127)
| Aspect | Section 126 (BSA 2023) | Section 127 (BSA 2023) |
|---|---|---|
| Focus | Spouses as witnesses | Confidential marital communications |
| Rule | Spouses may testify for/against each other | But cannot disclose confidential communications |
| Type of bar | Competency-related | Privilege-related |
Both sections work together to protect marital harmony while allowing justice where necessary.
📚 Conclusion
Section 127 of the Bharatiya Sakshya Adhiniyam, 2023 protects marital confidentiality by prohibiting disclosure of communications made between spouses during marriage.
It is a continuation of the long-standing rule under Section 122 of the Indian Evidence Act, interpreted in numerous landmark cases.
This privilege can be overridden only in limited circumstances:
spouses are litigating each other,
crimes committed between spouses, or
consent is given by the communicating spouse.
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