Matrimonial Communication

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Evidentiary privileges, almost of all kinds, are mixed blessings. Privileges are created to protect “interests and relationships” deemed “of sufficient social importance.” and they permit the exclusion, or “sacrifice,” of potentially relevant, reliable, and credible evidence, often the kind of evidence that many would not call “incidental.” Eminent evidence scholars including Jeremy Bentham, John Henry Wigmore, Charles Alan, Wright and Kenneth W. Graham, Jr., and Edward J.

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Imwinkelried have explored the rationales for evidentiary privileges, but they have done so largely by considering privileges as a unitary concept. [1] One of the major principles recognized by the law in the conduct of litigation is that of disclosure of evidence. The meaning of this expression is that parties shall reveal to each other and for the purpose of proceedings, any and all evidence, relevant to the issues in those proceedings, which is or has been in their possession, custody and power. The object of the principle is simply that all such relevant evidence in the case should be available to be inspected by all parties, and that the parties should be free to place before the Court any evidence which will assist it in determining the truth and in doing justice between the parties. The idea of inspection of evidence in the possession of another party is primarily of importance in the field of documentary and real evidence, and most of the battles in the field of public interest immunity and privilege have been fought in relation to such evidence. The principle of disclosure and its object of enabling the parties to place before the court all relevant and admissible evidence, applies to evidence in whatever form, and the rules of privilege in particular are of significance with respect to certain kinds of oral evidence. [2] One such kind of privilege enjoyed is in the communication made between spouses. Section 122 of the Evidence Act provides for such privilege and inhibits disclosure of marital confidence. Any communication between the husband and wife during the continuance of the marriage is privileged; hence wife as a plaintiff in a suit cannot be confronted with the same. This paper intends to challenge the applicability and relevance of this doctrine in contemporary times. The CENTRAL ARGUMENT of this paper shall relate to the features of the doctrine and the exceptions which have carved out by the act. It will be the prerogative of the research paper to answer pertinent questions like:- 1. What has been the impact of this privilege in modern times where the institution of marriage has become weak and flimsy? 2. What is the scope of the doctrine in cases where the two spouses are contesting against each other in a civil/ criminal suit? 3. What is the position of common law on this issue and how does Indian Law differ from the same?

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