Section 128 Bharatiya Sakshya Adhiniyam, 2023: Communications during marriage

Section 128 of Bharatiya Sakshya Adhiniyam, 2023: Communications during marriage

Official Bare Act Text

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

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.

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

Court Sec 2(1)(a)

Legal Commentary & Landmark Judgments: Section 128

Section 128 protects confidential Communications during Marriage, establishing absolute matrimonial privilege in judicial proceedings.

Core Legal Standard: The privilege endures even after the marriage has ended by death or divorce.
Exceptions & Statutory Safeguards: The only exceptions are suits between married persons or proceedings in which one spouse is prosecuted for an offence committed against the other.

Spouses must be free to confide in one another without fearing that private bedroom conversations will be subpoenaed in court, protecting the sacred confidence of matrimonial life.

Key Landmark Precedents:

M.C. Verghese v. T.J. Poonnan (1969) 1 SCC 709: Held that letters exchanged between husband and wife during marriage are privileged under Section 122 IEA / Section 128 BSA; a third party cannot compel disclosure unless consent was given or it was obtained through independent lawful search.
Ram Bharose v. State of U.P. (1954) SCR 704: Distinguished between communications (protected) and acts/conduct of a spouse (such as hiding stolen jewelry), which are not privileged.

Legal Commentary:

Section 128 preserves domestic peace and mutual marital trust. Spouses must be free to confide in one another without fearing that private bedroom conversations will be subpoenaed in court, protecting the sacred confidence of matrimonial life.