The extent and scope of marital privilege in American, English, Indian and Pakistani jurisdictions
The communications between spouses are covered by a privilege under the American, English, Indian and Pakistani laws, as the spouses are neither permitted nor can they be compelled to disclose the communications that occurred between them during the marriage. The underlying reason for the privilege is the protection of the spousal trust so that they can converse with one another in complete confidentiality. The ultimate objective of the privilege is to consolidate the bond of marriage. In absence of such privilege, a witness is likely to be forced to testify as to the conversation between the two spouses and this would be akin to intruding into the private lives of the couple.
An English Commission on Law in its report (1853) opined that the bliss of family life depends so much on the sanctity of spousal relationship that the societal disturbance resulting from the invasion of spousal privacy would be much damaging in comparison to the harm which may inflict the justice system by preventing such disclosures, thus, the spousal communications must be privileged. A distinction must be drawn between the marital privilege and the other rules relating to the disqualification of witnesses. A witness is disqualified to testify either because he is untrustworthy or due to fact that what he deposes is unreliable, whereas under the marital privilege, the testimony, though having probative value, is expunged just to protect the relationship even at the cost of truth.
Under the common law, the spouses were declared to be incompetent witness as against each other and it was due to the fact that the society at that time believed in the unity of spouses. This means that both the husband and wife were believed to be one entity, and thus if they were allowed to testify they would just be protecting each others interests. However, in 19th century many countries deviated from this view and they declared the spouses to be competent witnesses against one another though they remained sticked to the rule of spousal privilege by incorporating it in the statute books. In England, the privilege was preserved in the statute book through the enactment of the Evidence Amendment Act of 1853 which declared that a husband or wife had the privilege to withhold communications made to him or her in the course of marriage by the other spouse. Section 3 of the Evidence Amendment Act, 1853, states: “No husband shall be compellable to disclose any communication made to him by his wife during the marriage, and no wife shall be compellable to disclose any communication made to her by her husband during the marriage.”
The rules of evidence in the United States too recognize the spousal privilege. At the beginning of the 20th century, the American Supreme Court opined that the privilege is so necessary to the marital bliss that the resulting detriment to the dispensation of justice could be overlooked. In the United States of America, the spousal privilege is split into two branches, one being the marital confidences privilege and the other is the spousal testimonial privilege. The marital confidences privilege deals with protection of confidential communications between the spouses. Upon a valid claim of this privilege, a court cannot compel a husband or wife to give evidence against the other with reference to the their confidential conversations. On the other hand, under spousal testimonial privilege, a party can be prevented from calling a defendant’s (upon whom there is a criminal charge) spouse as a prosecution witness against him. But this privilege can only be claimed by spouse who witnessed alleged offense. This means that the defendant’s spouse has the privilege of denying the testimony against him/her, but it is not an option for the defendant to claim privilege and prevent his spouse from testifying against him/her. As opposed to the marital confidences privilege, the spousal testimonial privilege ends with the termination of marriage. It implies that a spouse cannot refuse to testify against a former spouse in a criminal case after the termination of marriage.
The communications between the spouses during the subsistence of marriage is also declared to be privileged under the Indian and Pakistani law. The language used in both the statutes is identical. Section 122 of the Indian Evidence Act and the Article 5 of the Qanun e Shahadat Order, 1984 deals with the marital privilege in these words: “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.”
Now that we have seen after delving into various jurisdictions that the communications between the spouses during the marriage is a privileged communication, it is pertinent here to raise some questions relating to the privilege so that we can understand it better. The questions can be like, do the communication must have been made whilst the marriage subsists; will the privilege continue after the termination of marital relationship; who holds the privilege and who may waive it; will there be no privilege when a spouse shares the conversation to a third person voluntarily; does the presence of any third person destroys the veil of confidence; will the privilege just relates to communication or it may extend to acts or conduct; can the spouse be compelled to disclose the communication outside the Court; and finally what are the exceptions to the marital privilege. In the following paragraphs we will try to find out the answers to these questions by digging into the case laws of the relevant jurisdictions.
Communication made must be during the subsistence of marriage
The privilege can be claimed only with reference to the communications that had been made during marriage. The communications prior to the marriage and after the termination of marriage cannot fall in the realm of privileged communication. The most important prerequisite for the privilege is a lawful wedlock. The courts will never allow a person to claim the privilege regarding a communication during marriage if the relationship was illegal. Thus, the privilege is inapplicable to a communication between a husband and wife who are separated for long time, or between persons who are living together in an unlawful cohabitation.
Disclosure after death of spouse not permitted:
If the conversation between the spouses took place whilst the marriage was intact, then the privilege continues even when the relation has ended either by divorce or death of a spouse. Since after the death of the communicator there is no possibility of consent being given, thus the communication under issue cannot be allowed to be put before the court. Accordingly, when in re Nawab Howladar vs Emperor, a widow disclosed certain communication made to her by her husband in connection with a murder, her disclosure was excluded from consideration by the court as it was not disclosed after having the consent of the maker.
Who has the privilege and who may waive it ?
The general rule of common law was that spousal communications are protected in such a way that neither spouse can disclose unless the other spouse gives his consent. Thus both the husband and the wife had the privilege but neither of them can forego it without the prior consent of the other. However, now after the promulgation of the Evidence Act, the privilege shall be that of the spouse witness and he/she can disclose the conversation between him/her and his/her spouse. There is no need to take permission from the communicating party. Further, it was held in re Rumping v Director of Public Prosecutions that a spouse who is a witness, if s/he wishes, then s/he can disclose the communication and in such case the other spouse cannot object to such disclosure.
Now the problem that often arises is as to where the privilege lies. The widely acknowledged rule is that the privilege belongs to the communicating party and only s/he has the right to waive it. This is so because the object of the privilege is to secure the right of the communicating spouse to converse freely without any apprehension or limitations. Under the Indian and Pakistani jurisdictions, it is established by now through various precedents that the privilege belongs to the spouse who has uttered the communication and the law prohibits the recipient to disclose it without the consent of the one who has uttered that. This factum is also very much evident from the plain reading of the provisions carrying this privilege in Indian and Pakistani laws. Both the provisions lays down that the person to whom the communication was made must not be allowed to testify regarding any communication except with the consent of the maker.
On comparison, it is found that the English statute just talks of compellability i.e., a spouse cannot be compelled by the Court to depose against the other spouse. However, the Indian and Pakistani laws go an extra mile and makes it obligatory upon the spouse who wishes to depose any marital communication in the Court to seek permission of the other spouse i.e., the maker or any of his representative-in-interest. The plain reading of these provisions suggests that though it is obligatory to seek permission from the maker of the communication, however, this permission will not be required to waive the privilege in two exceptional situations i.e., firstly, when the spouses are themselves parties in a suit between them and secondly, when one of the spouse is being prosecuted for a crime against the other.
There is a divergence among the American states with regard to the question that which spouse holds the privilege and who has the right to forego it. On one hand there is an opinion that as the privilege intends to safeguard freedom of expression of the communicating party, therefore the privilege must lie with the maker and the recipient be not allowed to have any say in this regard. Under this reasoning communicating spouse alone has the privilege and he alone can forego it. However, in Hagedorn v. Hagedorn, despite the objections of the husband, the court allowed the wife to testify to confidential conversations that took place between the spouses. Thus according to thiscase both spouses have the privilege as regards the communication, but anyone of them can forego it on behalf of both of them. The rule under common law that both husband and wife hold the privilege and no one of them can forego it except with the consent of the other, is in direct conflict with the rule in Hagedorn.
Can privilege be affected by transmitting the communication to a third person ?
In case titled T.J. Ponnen vs M.C. Varghesethe wife handed over to the complainant (wife’s father) the defamatory letters that were written for her by the accused husband, and the issue at hand was that whether the prohibition upon the wife will extend to her father when the letters were voluntary delivered to him by his daughter. It was not even asserted that she transmitted the letters to her father with the consent of the accused husband. It is much clear from the contents of those letters that they were intended to be communicated to the wife and not anyone else. It was argued by the complainant’s counsel that the prohibition from disclosure applies only to a spouse and cannot be of any relevance to others who may have come by the letters- by any means. Upon this the judge observed that if this contention is accepted then the privilege will be of no use, and what the wife is not permitted to do by herself she can do through a relative. If the wife will be permitted to shatter the veil of confidence indirectly through her relatives then that would be tantamount to taking away the husband’s privilege.
Furthermore, in McCoy v. Justice, a letter by the husband to the wife was not allowed to be put before the court through the medium of a third person when the wife herself had handed over those letters to that person. Thus it is clear that the privilege did not terminate even when the letter was transmitted voluntarily to a third person by the recipient.
Does the presence of any third person destroys the veil of confidence ?
It has been held in a plethora of cases that the communication remains no longer privileged when it is made in the presence of a third person. A person who overhears the communication between the spouses is not prohibited from making a disclosure. State v. Freeman, is a case where a third person was allowed to depose about the conversation that took place between the husband and wife at time of accused husband’s apprehension. In re State v. McKinney, a constable’s testimony that he heard the wife telling the husband that she had warned him that his business of selling whiskey might get him caught, was considered to be not privileged.
In most cases, the courts allow the third person to depose, however there is a disagreement as to whether the addressee may also testify. The point that appeals to logic is that a communication between the spouses when they know of the presence of some outsider will not be considered privileged anymore and can be deposed by the spouse to whom the communication is made. However, when a communication is made in supposed privacy which is overheard by someone, then in that case the addressee spouse should not be allowed to testify.
Though the presence of a third person renders the conversation not privileged, but courts have often treated the presence of children as an exceptional situation. In Hopkins v. Grimshaw, a little girl was present at the time of the conversation between her parents, but she was not able to comprehend that conversation. Thus it was held that the presence of that girl at the time of conversation will not affect the privilege.
Will the privilege just relates to communication or it may extend to acts or conduct ?
In a leading case, titled Ram Bharosey vs State Of Uttar Pradesh, there was the testimony of a prosecution witness (the wife of the accused) that she has seen the accused in the morning on 27th May 1952 coming downstairs and thereafter entering the bhusa kothri. Upon leaving the kothri he went for a bath and wore the same dhoti after having the shower. It was held by the honorable court that this testimony by the wife is not inadmissible under the rule of marital privilege, as it referred to the actions of the accused and those actions cannot be termed to be a communication.
The privilege applies just to utterances and expressions, which necessarily do not include actions. For example, in U.S. vs Estes, the act of counting and hiding the money conveyed no message, thus it was not a communication and it was opined that this conduct does not amount to communication. Thus, the privilege cannot prevent the disclosure of mere actions of a spouse. However, in some instances it is observed that the acts can amount to communication when such acts are performed to convey some message.
Can the spouse be compelled or permitted to disclose the communication outside the Court ?
In T.J. Ponnen vs M.C. Varghese there was an interesting contention by complainant’s counsel that Section 122 has no application to a disclosure made outside the Court as the Evidence Act is only applicable to the depositions made in a judicial proceeding. On the other hand, the defense counsel contended that the provision does not just prevents the disclosure inside the court but also outside the court. For establishing this point he referred to Section 129 and highlighted that the absence of the words “to the Court” in Section 122 and their presence in Section 129 is of much significance. Thus the court held that the spouse cannot be even compelled or permitted to disclose the privileged communication outside the court as it would be akin to shattering the privilege through an indirect ]disclosure.
Exceptions to marital privilege: when permission will not be required from the maker ?
The marital privilege is not allowed in suits in which husband and wife are the contending parties, for example the divorce proceedings. The spouses are not prevented to testify regarding the communications between them in suits where they themselves are parties. It is not possible to prevent the disclosure of marital communications in such cases as in that situation it would not be possible at all for a spouse to prove his claim against the other. The communication is also rendered unprivileged where one spouse is accused of an offense against the other. A spouse will not be prevented in a criminal case to depose the conversation that took place between him and his wife. It means that a spouse can disclose the communication for the purposes of his/her defense when they are caught up in a criminal prosecution. Though the underlying rationale of the privilege was to protect the privacy of the spouses but the state can intervene in the private lives of its citizens if it sees that abuse has taken the place of privacy. It was in this backdrop that the special laws were introduced both in India and Pakistan to prevent domestic violence and abuse by one spouse against the other and in such situations the communication between the spouses no longer remains privileged.
Another exception commonly resorted to in America is the “joint participants” exception. The marital privilege is inapplicable where both spouses are jointly engaged in the commission of an offense. This exception allows a witness to violate the marital confidentiality in case when they have jointly made preparations and acted towards the realization of the criminal intent. The prerequisite to invoke this exception is that one of the spouses must be willing to come forward to testify.
The communications during marriage has been considered to be privileged since a long time. The consideration behind upholding this privilege in a large number of countries is the sanctity of the family life. However, there are some critical questions that must be asked like, why is it that only communications and not the acts are privileged; why such privilege does not extend to other family relations like father and son; why will a guilty spouse ever permit the other to divulge about the conversation between them when such disclosure will harm his or her interest. Though the marital relationship has its sanctity to be protected, but protecting it at the cost of larger interest of the society i.e., balancing the scales of justice, must be discouraged by all courts in all cases.
 Mueller, Christopher B. and Kirkpatrick, Laird C. and Richter, Liesa, §5.32 Marital Confidences Privilege
(2018). C. Mueller, L. Kirkpatrick, & L. Richter, Evidence §5.32 (6th ed. Wolters Kluwer 2018)
Available at SSRN: https://ssrn.com/abstract=3277044
 S.J. Choudhary vs The State, 1985 CriLJ 622, 1984 (7) DRJ 275, 1984 RLR 543
 J. WIGMORE, EVIDENCE page no 2285 (3d ed. 1940).
 Ohio Oil Co. v. Industrial Commission, 293 Ill. 461, 127 N. E. 743 (1920).
 Acts As Communications Under The Marital Privilege – Gutridge v. State, 25 Md. L. Rev. 323 (1965)
Available at: http://digitalcommons.law.umaryland.edu/mlr/vol25/iss4/6
 Section 3 of the Evidence Amendment Act, 1853 (UK)
 Wolfle v. United States, 291 U.S. 7, 54 S. Ct. 279, 78 L. Ed. 617 
 United States v. Davis, 714 F. Supp. 853, 870 (S.D. Ohio 1988)
 Section 122 of the Indian Evidence Act and the Article 5 of the Qanun e Shahadat Order, 1984.
 Nawab Howladar vs Emperor, 40 Cal 891, 15 CrLJ 303 (DB)
 Rumping v Director of Public Prosecutions,  A.C. 814
 Hagedorn v. Hagedorn, 211 N.C. 175, 189 S.E. 507 (1937)
 T.J. Ponnen vs M.C. Varghese, AIR 1967 Ker 228, 1967 CrLJ 1511
 McCoy v. Justice,33199 N.C. 602, 155 S.E. 452 (1930)
 State v. Freeman, 197 N.C. 376, 148 S.E. 450 (1929)
 State v. McKinney, 175 N.C. 784, 95 S.E. 162 (1918)
 Hopkins v. Grimshaw 165 U.S. 342 (1895).
 Ram Bharosey vs State Of Uttar Pradesh, AIR 1954 SC 704
 U.S. v. Estes, 793 F.2d 465, 467 (2d Cir. 1986)
 T.J. Ponnen vs M.C. Varghese, AIR 1967 Ker 228, 1967 CrLJ 1511
 U.S. v. Syosset Woodbury Rd., 71 F.3d 1067, 1069 (2d Cir. 1995).