FACTS WHICH CANNOT BE PROVED

FACTS WHICH CANNOT BE PROVED

 s.165, Proviso 2:

- Certain restrictions upon the power of the court. It can ask questions except in relation to privileged communications and where it
would be improper to ask. The court cannot allow secondary evidence of documents unless requirements of s.65, IEA is fulfilled.
 Express restrictions on the power of the Court:

I. Privileged communications
- There are certain matters which a witness cannot either be compelled to disclose or even if the witness is willing to disclose, he
will not be permitted to do so. Such matters are known as ‘privileged communications’.
- Based on public policy.
- Fair balance between court power (quest for justice) and some privileged communications
II. Improper Questions (ss.148, 149)
- Questions cannot be asked which are not based upon reasonable grounds
III. Primary Evidence
- Secondary evidence allowed, only if allowed under the Indian Evidence Act.
S.122, IEA/ S.128, BSA: COMMUNICATIONS DURING MARRIAGE

- Whatever is between husband and wife – neither can be compelled to give evidence of what was
communicated between them during the continuance of marriage.
- Prohibition applies till ever – even after the marriage was dissolved.
- Restriction not applicable if civil suit or criminal proceeding between the two.
- e.g., Suit between H and W. H wants to tell the court what W said to her in order to prove Cruelty. H will
be allowed.
- Communication during wedlock by one spouse to another is prevented from being proved in the court of
law. Pre and post marriage communication is not protected and only communication during the marriage
is protected. These communications are protected even after the dissolution of marriage or when one
spouse dies.
 S.122, IEA/ S.128, BSA: COMMUNICATIONS DURING MARRIAGE
 This general rule has certain exceptions, where communication can be divulged:

a. Waiver of privilege: A person or his representative who made the communication consents.
b. Civil Suit is between the married parties.
c. Criminal proceedings between the two spouses: One spouse is prosecuted for the crime against the other
spouse.
 Other exceptions:

a. Acts apart from communication: Acts or conduct of spouses apart from the communication. e.g., A wife can
testify as to what her husband did on a certain occasion, though not as to what he said to her.
b. Communication made before marriage or after its dissolution.
c. Proof of communication by third person: Communications or conversations between the spouses taking place
in the presence of a third person, or when overheard by a third person, can be testified to by the third person.
 The privilege is for the communication and not for the witness.
 M.C. VERGHESE V. T.J. POONAN
(AIR 1970 SC 1876)
 Facts:

- Husband had some differences with Wife - she left matrimonial home and went to stay with father’s
family – yet not divorced.
- Meanwhile, the Husband wrote certain letter to Wife containing defamatory statements against her father
which she eventually gave to her father.
- A decree of nullity of marriage was later on passed against the husband on the ground of impotency.
- His Father-in-law brought a defamation suit against Husband on the evidence of these letters.
- The Kerala HC rejected the evidence under s.122, IEA.

 Legal Issue: Whether father-in-law is prohibited under s.122 to give evidence against the Husband?
 M.C. VERGHESE V. T.J. POONAN
(AIR 1970 SC 1876)
 Observations:

- Protection conferred by s.122 is limited to such matters as have been communicated during marriage, but not
before marriage. But the privilege continues even after the marriage has been dissolved by death or divorce.
- The bar relates to the status on date when communication was made and not on the date when evidence is
sought to be given.
- Even though a spouse is debarred from deposing to the contents of such correspondence, the same can be
proved by a third person.
- s.122 prohibits only spouse to come to court to give evidence
- In the present case, father-in-law can come to court and give evidence – no prohibition.

 Decision: Father-in-law allowed to give evidence. The husband could not claim protection under s.122 for
the letters in question.
 S.123, IEA/ S.129, BSA: EVIDENCE AS TO AFFAIRS OF
STATE
- According to s.123, no one shall be permitted to give any evidence derived from unpublished official
records relating to any affairs of state unless the head of the department concerned permits.
- General rule: The witness is bound to tell the whole truth and to produce any document in his possession
or power, relevant to the matter in issue.
- Exception: In certain cases, the production of official document may be injurious to larger public interest,
for it may harm State’s security, good diplomatic relations, etc. Therefore, the State has been given the
privilege not to produce certain documents which relate to ‘affairs of the state’.
- s.123 must be read in conjunction with s.162. Under s.162, the court shall decide the matter of the
objection; the Court may inspect the document, unless it refers to matters of State.
- The privilege under s.123 should be claimed either by the Minister, or his Secretary, or by Head of the
Department, by filling an affidavit. The affidavit has to state that the document in question has been
carefully read and examined and the Department is satisfied that the disclosure would not be in public
interest.
 S.124, IEA/ S.130, BSA: OFFICIAL COMMUNICATIONS

- This section gives a privilege to public officers to refuse to disclose matters, which are brought to their
knowledge in official confidence.
- The requisites of this privilege are:
a. There should be a public officer
b. A communication has been made to him in official confidence
c. He has the discretion to refuse its disclosure on the ground that public interest would suffer by the
disclosures.
- This section is confined to public officers whereas s.123 embraces everyone.
- The court can compel the disclosure of document, if the court disagrees with the officer. Further, people
have a ‘right to know’ how their state is functioning. The State cannot withhold information on matters
which have nothing to do with sovereignty or state secrets.
 S.125, IEA/ S.131. BSA: INFORMATION AS TO
COMMISSION OF OFFENCES

- s.125 states that no Magistrate or Police-officer and also revenue officer shall be
compelled to give evidence about source of information. It provides safeguard to the
interest of informant.
- Only the source of information as to commission of an offence is a privilege, not the
information itself or investigation report, etc.
- The section is intended to encourage people to give information about offences by
protecting the source of information, for otherwise, no one would like to give such
information.
- It is well established that the police may suppress the identity of the informants in the
interest of combating crime.
 S.126, IEA/ S.132, BSA: PROFESSIONAL
COMMUNICATIONS

- A man of legal profession – barrister, attorney, pleader or vakil is forbidden to disclose without
his client’s consent:
1. Any communication made to him in the course of, and for the purpose of his employment.
2. The contents or condition of any document which came to his knowledge in the course of, and
for the purpose of his professional employment.
3. Any advice by him to his client in the course of, and for the purpose of such employment.
- Reason: To encourage litigants to communicate fully and frankly with their lawyers without any
fear that the information given by them can be passed on to the opponent or to the court. In the
absence of this prohibition, it would have been difficult for anybody to get the best professional
advice.
- Privilege applies even after employment has ceased.
 S.126, IEA/ S.132, BSA: PROFESSIONAL
COMMUNICATIONS
 Conditions:

1. If purpose not to engage lawyer – not a privileged communication.

2. Neither of Munshi, lawyer, people working there – prohibition applies upon all the staff of his office.
3. If communication to lawyer by client – for engaging him – even if lawyer engaged or not – prohibition to give evidence.
4. Following is prohibited:
- Story told
- Documents shown
- Legal advice given
5. Proviso: If wrong done during the furtherance of illegal purpose – such communication allowed
6. Obligation continues even after the employment has ceased.
7. If the lawyer and the client are against each other in suit – prohibition not applied.
 S.126, IEA/ S.132, BSA: PROFESSIONAL
COMMUNICATIONS

 The privilege under s.126 is subject to following exceptions:

- Communication made in furtherance of illegal purpose (Proviso 1).

- Crime or fraud since employment began (Proviso 2).
- Disclosure with express consent of client.
- Information falling into hands of third person.
- Lawyer’s suit against client.
- Joint interest: No privilege attaches to communication between solicitor and client as against persons
having a joint interest with the client in the subject matter of communication e.g., between partners, a
company and its shareholders.
- Documents already put on record.
 SS. 127, 128 AND 129, IEA
 s.127, IEA: Section 126 to apply to interpreters, etc.

- Prohibition contained in s.126 applies also to interpreters, clerks and servants of the lawyer.
- Reason: The above-mentioned persons are likely to come to know of the confidential information relating to litigation and if
they are not prohibited then the purpose of s.126 will be frustrated.
 s.128, IEA/ s.133, BSA: Privilege not waived by volunteering evidence.

- s.128 is the supplement to s.126 and clarifies that if a party making the communication himself or at his own instance or
otherwise gives evidence of the matter covered by the communication, it shall not be deemed that he has given his consent for
the disclosure of the confidential communication.
- For disclosing the communication, ‘express consent’ of the party is required.
 s.129, IEA/ s.134, BSA: Confidential communications with legal advisors.

- The effect of this section is that a person cannot be compelled to disclose any confidential communication, which has taken
place between him and legal professional advisor. But, if he offers himself as witness, he may be compelled by the court to
disclose such matters to the extent to which court thinks it is necessary for the purpose of explaining the evidence which he has
given, but not more than that.
- The bar of s.126 is partially lifted by s.129.