Section 126 Bharatiya Sakshya Adhiniyam, 2023: Competency of husband and wife as witnesses in certain cases

Section 126 of Bharatiya Sakshya Adhiniyam, 2023: Competency of husband and wife as witnesses in certain cases

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

(1) In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses.

(2) In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Court Sec 2(1)(a) Evidence Sec 2(1)(c)

Legal Commentary & Landmark Judgments: Section 126

Section 126 governs the competency of husband and wife as witnesses in civil and criminal proceedings, declaring spouses to be fully competent witnesses against each other.

Civil Proceedings Competency: In all civil proceedings, the husband or wife of any party to the suit is a fully competent witness.
Criminal Proceedings Competency: In criminal proceedings against any person, the husband or wife of such person is a fully competent witness.
Distinction from Matrimonial Privilege: Section 126 provides competency; it is subject to the privilege against disclosure of confidential marital communications under Section 128 BSA.

Key Landmark Precedents:

Ram Bharosey v. State of U.P. (AIR 1954 SC 704): The Supreme Court distinguished spousal competency from matrimonial privilege, holding that while a wife is competent to testify to the visible conduct of her husband, confidential communications remain privileged.
S.J. Choudhary v. State (1984) 1 SCC 722: Examined spousal testimony in murder trials, affirming that a spouse can depose regarding non-communicative factual observations.

Courtroom Practice & Strategic Litigation Guidance:

In domestic violence and matrimonial criminal trials, examine the spouse on factual occurrences (assault, physical injuries, presence at the scene). Clarify on the record that you are not seeking disclosure of confidential marital communications to bypass privilege objections.