Report No. 69

III. Position of Spouse of the Accused

61.6. Paramount importance of marital harmony.-

We shall now refer to one point on which the section requires some consideration. Under the section, the spouse of the accused in a criminal prosecution is a competent witness. Since the Act makes no express provision to the effect that the spouse is not compellable and since there is no other statutory provision to that effect, the result is that the spouse is compellable also. Now, the question to be considered is whether this is a satisfactory position. Prima facie, one would think that the dictates of marital harmony postulate that the position should be just the reverse. Marital harmony can hardly survive if one spouse has to give incriminating evidence against the other.

The spouse against whom such evidence could be given would live in a constant atmosphere of suspicion. But, worse than that, the spouse who could be compelled to give such evidence would be placed in an extremely harsh situation, where he or she may have to make a cruel choice between telling the truth and permanently alienating the affections of the partner for life. No doubt, whenever one person has to give evidence against a relative, some embarrassment is likely to be caused. But the cases of spouses stand on a special footing. The existence of the very fabric of the relationship is threatened if one spouse cannot depend on the other.

The relationship of father and son is one of blood; it is created by nature and it can survive a few shocks. But the relationship of husband and wife is man-made. By its very nature, it is a delicate one. Its very foundation is mutual trust and confidence. The law still attaches the greatest importance to the sanctity of marriage. Any act which may damage this feeling of trust would totally shake the relationship. After such an act, the soul of the relationship would be gone, and only the shell would remain.

61.7. Need for change.-

Is it desirable that the law should allow such a situation to be created.? No doubt truth is valuable; but truth can be too zealously pursued; too intensely sought. The need for bringing the truth before the Court is not denied, but there are other considerations which may override that need. In the present case, it is suggested, the other considerations are over-powering. The law has never regarded the proposition that the truth must come before the court at all costs and through every possible medium, as a proposition without exceptions. Were it so, the various privileges embodied in sections 121 to 132 would not have found their way into the Act.

It can be argued by way of reply to the above approach that the present position has not created any practical difficulty. This, we would like to observe, misses the point. A position which is bound to cause serious harm from the sociological point of view, and which is fundamentally objectionable, should not be allowed to continue merely because no difficulty has been reported. The position is, by its very nature, likely to cause serious hardship, as explained above.

61.8. Previous view.-

Unfortunately, the various aspects discussed above were not considered by those who framed the Act-at least the recorded discussions on the Evidence Bill do not show that the point was considered. It is sometimes taken for granted that the law before the Act was the same as it is in the Act. This is not, strictly speaking, accurate.

A Calcutta case1, which arose before the passing of the Act, is usually referred to in this connection. But all that was held in that case was that the principle of the incompetence of the wife did not apply to the Mofussil, since it had not been established that the English Criminal law or the English law of evidence had been extended to the Mofussil. That case itself holds that in the Supreme Courts, the wife was not a competent witness, that being the English common law rule which did apply to the Presidency towns.

1. R. v. Khairulla, (1866) 6 WR (Cr) 21 (Cal): BLR Supp. Vol. App. 11 (FB).

61.9. In that case-R. v. Khairulla, (1866) 6 WR (Cr) 21 (Cal): BLR Supp. Vol. App. 11 (FB).-

Peacok, C.J. observed-

"Two questions have been referred in this case: first, whether upon a trial in the mufassil of a person charged with an offence his wife is competent to give evidence for or against him ? Second, whether, upon a trial in the mufassil of several persons charged jointly with an offence, the wife of one of them is competent to give evidence for or against the others ? I am of opinion that both of those questions must be answered in the affirmative. It is a general rule of English law, subject to certain exceptions, that in criminal cases, a husband and wife are not competent to give evidence for or against each other. But the English law is not the law of the mufassil It is clear that the English Criminal Law was not the Criminal Law of the mufassil, and that the English Law of Evidence was never extended by any Regulation of Government to criminal trials there.".

61.10. The judgement does not decide the question of compellability. Even if, for the sake of argument, it is assumed that the judgment has decided the question, it must not be forgotten that the decision was based primarily on the proposition-a proposition which need not be disputed-that in the Mufassil, the English law of crimes or evidence did not apply. The judgment, in any case, does not express any view as to the wisdom or otherwise of the common law rule. Thus, the previous law does not come in the way of making any change in the section-if such a change is otherwise desirable.

61.11. English law.-

It may be noted that the law in England on the subject is different. In England,1 the accused's spouse is not, generally, a competent or compellable prosecution witness except in certain specified cases which are very limited, given below-

(a) The wife is competent and compellable in cases falling within the Evidence Act, 1877, which concerns prosecutions relating to public highway and other criminal proceedings instituted for the purpose of trying or enforcing civil rights.

(b) She is competent at common law on charges to effect that violence against herself or injury to her liberty or health has been committed by the accused:2 this includes buggery.3

(c) Then, the spouse is probably competent and compellable on a charge of treason.4

(d) The spouse is competent but not compellable in a number of cases provided by statute. These include neglect to maintain or desertion of wife or family, bigamy, most sexual offences, offences against children, national insurance offences and any offence "with reference to" the spouse or committed against the spouse's property.5

Provided the accused consents, the wife is competent but not compellable as a witness for the co-accused.6 The exceptions listed in the preceding paragraph apply here too: when they apply, the wife testifies without the accused's consent being necessary.

1. Heydon Cases and Materials on Evidence, (1975), p. 383.

2. R. v. Blanchard, (1952) 1 All ER 114.

3. R. v. Yeo, (1951) 1 All ER 864n.

4. Director of Public Prosecutions v. Blady, (1912) 2 KB 89 (92).

5. See Theft Act, 1968, section 30(3); R. v. Noble, (1974) 2 All ER 811: (1974) 1 WLR 894.

6. Criminal Evidence Act, 1898, section 1(c).

61.12. The accused's spouse is a competent, but not compellable witness for the accused. However, she is compellable1 in the cases covered by the Evidence Act, 1877, on charges of violence or injury to the spouse's health or liberty and in treason. The prosecution is prohibited from commenting on the failure of the accused's spouse to testify.2

It is obvious from the above discussion that in England, subject to very limited exceptions, the spouse cannot be compelled to be a witness in a criminal case. Even a divorced spouse is an incompetent to testify to matters occurring during the marriage as one who has not been divorced.3

Of course, we are not suggesting that our law should be altered merely because the English law is different. We are referring to the English cases as a matter of interest. Also, they contain some instructive observations4-observations which, perhaps, apply with greater force in Indian conditions.

1. Heydon Cases and Materials on Evidence, (1975), p. 383.

2. Section 1(b) Criminal Evidence Act, 1898.

3. R. v. Algar, (1954) 1 QB 279: (1953) 2 All ER 1381 (1383) (CCA) referring to Monroe v. Tivisleton, 170 ER 250-a case approved again and again.

4. See infra.

61.13. Balancing of various considerations.-

Let us consider the matter from the point of view of principle, it is no doubt, desirable that all available and relevant evidence which might conduce to a correct judgement should be before the Court. But this consideration has to be balanced against-(i) the undesirability of disturbing marital harmony more than is absolutely necessary, and (ii) the harshness of compelling a spouse to give evidence against the other spouse. The supposed theoretical unity of the spouses, or the likelihood that the spouse will be biased in favour of the accused, may have no place in a legislative determination as to the extent of competence and compellability. But the question of the right balance between the considerations of policy mentioned above is an important one which seems to require serious examination.

61.14. In this connection, we may refer to the discussion in the judgement of the House of Lords in Leach v. R., 1912 AC 305 (311) (HL). The precise point in issue in that case related to statutory construction. As competence usually implies compellability, many people thought that section 4(1) of the Criminal Evidence Act of 1898, which made the accused's spouse competent, also made the accused's spouse compellable for the prosecution in the specified cases. The House of Lords, however, decided that this was not so.

We are not concerned with this aspect of the judgment. But let us have a look at the facts relevant to the rationale of the privilege. Leach was charged with incest with his daughter. His wife was called as a witness on behalf of the prosecution. She objected to giving evidence, claiming privilege. After an unsuccessful appeal to the Court of Criminal Appeal, he (the accused) successfully appealed to the House of Lords. The House held that the general rule that competence implied compellability did not apply in this case.

61.15. The importance attached to conjugal harmony is shown by the Judgement. The following observations of Lord Atkinson are important for our purpose-

"The principle that a wife is not to be compelled to give evidence against her husband is deep-seated in the common law of this country,1 and think if it is to be overturned, it must be overturned by a clear, definite and positive enactment, not by an ambiguous one such as the section relied upon in this case".

Earl Loreborn L.C. observed in the same case-

"It is very desirable that in a certain class of cases justice should not be thwarted by the absence of, the necessary evidence,2 but upon the other hand it is fundamental and old principle to which the law has looked, that you ought not to compel a wife to give evidence against her husband in matters of criminal kind".3

1. Emphasis supplied.

2. Emphasis supplied.

3. Leach v. R., 1912 AC 305 (HL).

61.16. Spouse in criminal case not to be compelled.-

On a careful consideration of the various aspects of the matter, we have come to the conclusion, that the spouse of the accused should not be compellable in a criminal prosecution, except in certain specified cases. We think that the present provision is indefensible in principle. It seems to have been enacted without a serious consideration of the sociological and other aspect of the matter which we have discussed above, and the matter is so important that a maintenance of the status quo may cause serious hardship and consequential injustice of a grave character. We find ourselves in entire agreement with the approach of Earl Loreborn L.C.1-already quoted:

"It is very desirable that in a certain class of cases justice should not be thwarted by the absence of, the necessary evidence, but upon the other hand it is fundamental and old principle to which the law has looked, that you ought not to compel a wife to give evidence against her husband in matters of criminal kind.2

To put it in our own words, in the situation under discussion, the considerations of marital confidence are paramount. An important practical consideration to be mentioned is that the spouse, if compelled, will, in general, not speak the truth. So the present position would encourage perjury.

1. Leach v. R., 1912 AC 305, supra.

2. Emphasis supplied.

IV. Recommendation

61.17. In the light of the above discussion, we recommend that the following proviso should be inserted below section 120:-

"Provided that the spouse of the accused in a criminal prosecution shall not be compelled to give evidence in such prosecution except to prove the fact of marriage unless-

(a) such spouse and the accused shall both consent, or

(b) such spouse is the complainant or is the person at whose instance the first information of the offence was recorded, or

(c) the accused is charged with an offence against such spouse, a child of the accused or a child of the spouse, or a child to whom the accused or such spouse stands in the position of a parent".

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