JUDGMENT
D.R. Khanna, J.
(1) COL. S.J. Choudhary is at present being tried in the court of Shri Mahesh Chandra, Additional Sessions Judge,, New Delhi, under Section 302 Indian Penal Code for the alleged murder of Krishan Sikand, a resident of 98 Sunder Nagar, New Delhi. The murder was stated to have been committed in a blast which took place on 2-10-1982 at the said residence of the deceased.
(2) The background is stated to be that Rani Choudhary widow of late Pritam Singh, married the accused on 31-3-1971. At that time she had already two daughters with her from her deceased husband Pritam Singh. The new marriage, however, did not last for long, and sometime about the year 1976, Rani Choudhary left the accused and came to Delhi. Here she developed intimacy with Krishan Sikand and started living with him in his house at No. 98, Sunder Nagar, New Delhi. On 6-12-1979, she obtained a decree for divorce against the accused. This was ex-parte. The accused feeling aggrieved, moved the High Court which allowed that to the extent that he had not been properly served, and, therefore, the trial should take place afresh. However, Rani Choudhary moved the Supreme Court and succeeded in getting the order of the High Court reversed. Thereby the confidential court’s decree for divorce was restored.
(3) On 2-10-1982, there was an explosion in the house of Krishan Sikand, resulting in his death. At that time Rani Choudhary was away from Delhi to Sanawar where ner daughters were studying. A day later she returned. The C.B.I, investigation later resulted in the registration of the case under Section 302 1.P C. against the accused. The trial is proceeding. During its course. Rani Choudhary is being examined, and she has referred to a number of communications between her and the accused. It appears that some of those communications which were in writing, were sought to be produced by the accused himself by moving an application under Section 91 Cr. P.C. The session court directed their production. About some others, Rani Choudhary was examined by the prosecution. At that stage, the accused did not raise any objection to the admissibility of that evidence. Later, however, he moved a petition before the Session Court, seeking deletion of that evidence on the ground that the same was barred under the provisions of Section 122 of ‘the Evidence Aet. This was, however, not allowed observing that it was too late to exclude the same as the accused has not raised any finger to its admissibility or relevancy when the evidence was recorded. It was also observed that the nature of their relationship during the subsistence of marriage was itself a relevant fact in these proceedings. Feeling aggrieved the accused has now moved the present petition under Section 482 Cr.P.C.
(4) Section 122 of the Evidence Act reads as under : “NO person who is or has been married shall bs 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 on married person is prosecuted for any crime committed against the other.”
There is thus a prohibition against the disclosure of any communication between spouses made during the subsistence of marriage unless the person who made it or his representative-in-interest consents to the same. The bar is not only against a spouse being compelled to disclose the same but also extends to cases where the spouse may be inclined or willing to disclose the same. In the latter case, the disclosure can be permitted if the other spouse who made the same, agrees to the disclosure. The consent has to bs positive, and not that it may be imported from mere waiver. There are, of course, exceptions when the spouses are themselves parties arrayed against each other in suits or there are proceedings in which one married person is prosecuted for any crime committed against the other.
(5) It is not the case of the prosecution that the present case falls under the exceptions envisaged by Section 122 or that the accused had given his consent to the disclosure postulated by Section 122.
(6) Section 122 of the Indian Evidence Act recognises the age-old concept of marital confidence that all communications between spouses during the wedlock are sacrosanct. In England the Commission on Common Law Procedure in its second report, submitted in 1853 observed as under: “SO much of the happiness of human life may fairly be said to depend on the inviolability of domestic confidence that the alarm and unhappiness occasioned to society by invading its sanctity and compelling the public disclosure of confidential communications between husband and wife would be a far greater evil than the disadvantage which may occasionally arise from the loss light which such revelations might throw on the questions in dispute ……hence all communications between them should beheld privileged.”
Pringle v. Pringle, 59 pa, 281, 288, Sherwood J. observed as under : "IT is necessary to preserve family peace and maintain that full confidence which ought to subsist between husband and wife."
In the eloquent language of Taylor, C. L. {Mercer v. State, 40 Fla, 216, 226, 234, So. 154 74 Am. St. Rep. 135: "SOCIETY has a deeply-rooted interest in the preservation of the peace of families, and in the maintenance of the sacred institution of marriage and its strongest safeguard is to preserve with jealous care any violation of those hallowed confidences inherent in, and inseparable from, the marital status. Therefore, the law placed the ban of its prohibition "upon any breach of the confidence between husband and wife by declaring all confidential communications between them to be incompetent matter for either of them to expose as witnesses."
(7) The prohibition under Section 122 of the Indian Evidence Act is based on the ground that the admission of such testimony is likely to disturb the peace of the family and weaken the feeling of mutual confidence. It rests on no technicality that can be waived at will but is founded on a principle of high import which no court is entitled to relax. It is further not confined to cases where communication is of strictly confidential character. In.fact, it extends to all communications of whatever nature, which pass between the husband and the wife unless the spouse making the communications consents to its disclosure (See in this regard Nawab Howladar v. Emperor; 23 Indian Cases 711, Ramchandra Shankarshet Uravanev. Emperor, Air 1933Bombayl53, Bilhen Dasv. Emperor, ].9!lC[l.L.3. Reports 316, and Appu v. The State, 1971 Cri. L.-J. 615).
(8) It is also now well settled that if the marriage was subsisting at the time when the communications were made, the bar prescribed by Section 122 will operate even after the wife has obtained decree for nullity of her marriage. The bar to the admissibility in evidence of the communications made during marriage attaches at the time when the communication was made) and its admissibility will be adjudged in the light of the status at that date and not the status at the date when evidence is sought to be given in court See in this regard the decision in M.C. Verghese v. T J. Ponnam, and another, .
(9) This being the position of law, the disclosure of any communication between the accused and Rani Choudhary as made during the subsistence of their marriage could not be admitted evidence when Rani Choudhary appeared to depose as a witness. The prohibition being absolute, unless the disclosure was consented to by the accused, the non-raising of any objection by the accused when that evidence was being recorded, would not make the same relevant or admissible. The waiver does not come in. The evidence has to be excluded from consideration unless the accused agrees to its disclosure or retention on record.
(10) There is another controversy which concerns the communications made between the accused and Rani Choudhary after the latter had obtained the divorce decree on 6-12-1979. As has been noted above, the reversal of this decree by the High Court has been set aside by the Supreme Court, and the trial court’s divorce decree restored. Most of the disclosures which Rani Choudhary has made, pertain to the period after 6-12-1979 when the decree for divorce was granted. Bawa Gurcharan Singh, appearing for the accused, however, has elementally contended that the marriage should be treated 24-8-82 when the Supreme Court reversed the decision of the High Court. During this period it is pointed out, the High Court had set aside the ex parte decree for divorce and the effect of the same was that the marriage had to be treated as subsisting. It was on 24-8-1982 that the Supreme Court finally put its seal on the marriage, and upheld the decree for divorce. It has therefore been pleaded that it is the decree oftheS’-iprene Court which is now operative and binding, and that the trial court’s decree should be treated as having merged in the same. In support reliance has been placed upon .4. Thangal Kunju Musaliar v. M. Venkatachalam Polti, Authorised Official and Income Tax Officer and another, , Commissioner of Income- Tax Bombay v M/s. Arnritlal Bhogilal and Co., Air 1958 Supreme Court %6S and Collector of Customs, Calcutta-v .East India Commercial Co. Ltd., Calcutta and others, . In two of these cases, the question arose about the territorial jurisdiction of the High Court to entertain the writs moved under Article 226 of the Constitution of India. The third was an Income-tax Reference under Section 66 of the Income- tax Act, 1922. It was observed that when an order of the appellate authority was being challenged, irrespective of whether the same had reversed, modified or confirmed the original order, the jurisdiction to entertain the writ petition lay at the place where the appellate Authority was situate. This was on the principle of merger of the lower authority’s order in that of the appellate authority’s order.
(11) Reference has also been made by Bawa Gurcharan Singh to Section 15 of the Hindu Marriage Act which provides for when divorced per- sons can marry again. This right is available after the dissolution of the marriage by a decree of divorce. If, however, there is a right of appeal against that decree, the fresh marriage can be entered in to after the time for appalling has expired when no appeal has been preferred or after the dismissal of the appeal in case any such has been filed. It has, therefore, been urged that in the real sense, the dissolution becomes effective after the decision of the appeal only.
(12) In the present case, as already noted above, the decree of divorce was passed on 6-12-1979 by the trial court. Its reversal later by the High Court was set at naught by the Supreme Court. Thereby the trial court’s decree of divorce was restored and the High Court’s order was set aside. The High Court’s order in the circumstances has to be treated as non-est being invalid. The Supreme Court had also specifically observed that the trial court’s decree was restored. In other words the trial court’s decree had to be treated as operative. The attempt of the husband to get set aside the ex-parte proceedings and decree against him proved abortive. The trial courts’ decree being rendered effective by the Supreme Court, the carriage has to be treated as ended from that decree There’ was no relationship of husband and wife thereafter. The marital confidence and mutuality having thus ended, any communication exchanged between them after the divorce decree of 6-12-1979 could not be treated as protected by Section 122 of the Indian Evidence Act. As regards the provisions contained in Section 15 of the Hindu Marriage Act, they envisage when the divorced persons can enter into marriage again. The effectiveness of the trial court’s divorce decree, which has been restored by the Supreme Court in the present case has to be treated as operative when it was passed so far as Section 122 of the Evidence Act is concerned.
(13) Having adjudicated above about the position of Law, I am not going into the details of the evidence recorded by the learned Sessions Judge. To what extent the same has to be excluded, will be decided by the Court in the light of what is observed above. The State has, of course, referred to the decision of the Supreme Court in case M.C. Verghese (supra), in which it was observed that communication to spouse can be proved by any other way than by putting the spouse in the witness-box. The trial court will, of course, keep this as well in view. The petition shall accordingly stand disposed of.