Basic objective of enactment of the Section 122 is to promote family peace and at the same time husband-wife solace relation from being disturbed. So long the wed-lock continues both the husband and wife are under solemn responsibility to maintain the dignity of married life. Anything said or made by the husband to wife or vice-versa is treated to be privileged communication founded on law and ethic. “This protective provision is based on the wholesome principle of preserving domestic peace and conjugal confidence between the spouses.” The communications between husband and wife cannot be permitted to be disclosed unless the spouse other than one in witness box has consented to such disclosure.
Section 122 lays down that no married person shall be compelled to disclose any communication made to him during marriage by any person to whom he is married. But, this section further lays down that such person may be permitted to disclose any such communication provided:
(i) When the person who made it or his representative-in-interest consents; or
(ii) In suits between married persons; or
(iii) The proceeding in which one married person is prosecuted for any crime committed against the other.
Thus, according to the section a husband and wife may not be compelled to disclose any communication made between them during marriage life, although the husband or wife or a party to a proceeding is competent witness and capable to testify under section 120 of the Evidence Act. It has been held that the section protects the individuals, i.e., the husband or wife from giving evidence and not the communication if it can be proved without putting into witness-box for that purpose the husband or the wife to whom the communication was made.
When communication can be disclosed:
As a rule the husband and wife are not to be compelled to disclose any communication during wed-lock. There are exceptions when any communication can be disclosed. In M.C. Vergliese v T.J. Ponnam the Supreme Court held that during the marriage life every communication between the spouses attracts the bar prescribed in Section 122 of the Evidence Act. The same privilege which is based on public policy, will continue even after dissolution of the marriage, but only for the said communication. Of course, they said privilege can be disclosed with the consent of the maker. It has also been decided that “this section is applicable between spouses against each other and not against the person.”
Although the communication between the spouses is protected, the act or conduct of the spouses may be questioned. The Supreme Court held that a wife can testify to the deed of her husband or what her husband said to her about his deed. These are not admissible, but the wife can testify the conduct of the husband.
Whenever any communication took place in presence of third person or over heard by third person, it can be testified by the third person. The section protects the individuals and not the communications of it. It can be proved by other evidence.