Does Section 122 of the Evidence Act need reform?

In light of the Kerala High Court's recent suggestion that Section 122 of the Indian Evidence Act be revisited, GAZAL PREET KAUR explains the court's rationale, the jurisprudential background of section 122, and why the provision mandates scrutiny.

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LAST week in a murder case, the Kerala High Court pointed that there is a dire need to scrutinize Section 122 of the Indian Evidence Act in context of "changing values governing human and familial relations". The division bench of the high court, comprising Justices K. Vinod Chandran and C. Jayachandran, directed the Court's Registry to send the copy of the judgment to the Secretary, Ministry of Law and Justice and Member Secretary, Law Commission of India.

The bench was hearing a matter where the accused Rasheed, murdered his employer named Noushad, the owner of a plywood factory, in 2015. The prosecution claimed that the accused murdered the victim on suspicion of an affair between his wife and the victim. In order to understand the motive of the accused, the court claimed that it needed to know the conversations that he had with his wife, which was apparently an argument about the victim, as per the wife. The admissibility of the conversation as evidence was challenged by the defence on the grounds of violation of section 122 of the Evidence Act.

The court in the present case wondered whether the principle of the sacrosanctity of communication in a marriage that underpins the section requires a re-visit. It said that in matters like the one that the bench was hearing, the greater good of society has to be kept at a higher pedestal. The bench said that it was time that more importance is given to the public interest than the happiness and peace of a marital relationship.