Section 128 BSA 2023: Communications During Marriage
Section 128 of the Bharatiya Sakshya Adhiniyam, 2023 protects confidential communications made between spouses during marriage. It restricts both compelled disclosure and voluntary disclosure of such marital communications, subject to the statutory exceptions stated in the section.
Text of Section 128 - Communications during marriage
128. 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.
What Section 128 means
The provision creates a rule of marital communication privilege. A person who is married, or who was formerly married, is protected in relation to communications made to that person by the spouse during the subsistence of the marriage.
The section has two important limbs. First, the spouse cannot ordinarily be compelled to disclose the protected communication. Second, the spouse is not ordinarily permitted to disclose it voluntarily unless the person who made the communication, or that person's representative in interest, consents.
Essential requirements of Section 128
| Requirement | Effect |
|---|---|
| There must be a marriage | The protection applies to a person who is or has been married. |
| The communication must be made during marriage | The statutory protection attaches to communications made while the marital relationship existed. |
| The communication must be made by one spouse to the other | The section concerns inter-spousal communications, not every fact observed during married life. |
| Consent may remove the bar | Disclosure is permitted when the maker of the communication, or the maker's representative in interest, consents. |
| Statutory exceptions apply | The privilege does not operate in the two categories of proceedings expressly excluded by Section 128. |
Exceptions to marital communication privilege
Section 128 expressly allows disclosure in the following situations:
- Suits between married persons: the restriction does not apply where the spouses are litigating against each other in a suit.
- Prosecution for a crime by one spouse against the other: the restriction does not apply where one married person is prosecuted for a crime committed against the other.
Communication and observation are not the same thing
Section 128 is framed around a "communication" made by one spouse to the other. The wording should therefore be distinguished from facts independently seen, heard or otherwise observed by a spouse. Whether a particular item of evidence is a protected communication depends on its nature and the circumstances in which it arose.
Does the protection continue after divorce or the end of marriage?
Yes, the wording covers a person who "is or has been married." The relevant requirement is that the communication itself was made during the marriage. The statutory language therefore protects qualifying marital communications even when testimony is sought after the marriage has ended, subject to the consent rule and the stated exceptions.
Relationship with competency of spouses as witnesses
Section 126 of the Bharatiya Sakshya Adhiniyam deals with the competency of a husband or wife as a witness in specified civil and criminal proceedings. Section 128 addresses a different issue: whether a marital communication may be disclosed. A spouse may therefore be competent to testify while a particular communication remains protected by Section 128.
Official legal sources
Official text of the Bharatiya Sakshya Adhiniyam, 2023 - India Code
Ministry of Home Affairs - New Criminal Laws
Commencement notification dated 23 February 2024 - Ministry of Home Affairs
Related BSA provisions
For connected provisions on witnesses and protected communications, see Section 126 - Competency of husband and wife as witnesses in certain cases, Section 127 - Judges and Magistrates, Section 129 - Evidence as to affairs of State, and Section 130 - Official communications.
This page is intended for general legal information. The application of evidentiary privilege depends on the facts and the nature of the proceeding.