Question

Under Sec.122 of the Evidence Act, a communication made to the spouse during marriage

• A. Remains privileged after the dissolution of marriage by divorce but not so on after death
• B. Does not remain privileged after the dissolution of marriage by divorce, but remains privileged even after death
• C. Does not remain privileged after dissolution of marriage by divorce or death
• D. Remains privileged communication after the dissolution of marriage by divorce or death.

Hint:

For privileged communications under the Evidence Act, understand who holds the privilege and how long it lasts. For spousal privilege (Sec 122), the privilege is perpetual; it survives both divorce and death because its purpose is to protect the sanctity of marital confidence at the time the communication was made.

Answer 1

The Correct Option is D

The privilege under Section 122 attaches at the time the communication is made, not at the time it might later be disclosed in court.

1. Divorce-only distinctions: Any option that treats divorce and death differently ignores that the statute uses one unified phrase, is or has been married, covering both situations equally.
2. Loses protection on divorce or death: This ignores the deliberate inclusion of has been married in the text, which exists specifically to extend, not end, the protection.
3. Remains privileged after divorce or death: Because protection attaches once, at the time of the communication, and the statute's wording extends it beyond the marriage's existence, the communication stays privileged permanently, regardless of how the marriage ends.

Since the privilege is fixed at the time of communication and survives the end of the marital status in any form, the correct answer is Remains privileged communication after the dissolution of marriage by divorce or death.

Answer 2

Thinking about why the law protects marital communications in the first place clarifies why the protection must be permanent.

1. Divorce ends it, death does not (or vice versa): If spouses knew the privilege could lapse depending on how the marriage later ended, they could never speak freely during the marriage, since the confidentiality of what they said would depend on an unpredictable future event. That uncertainty would defeat the very purpose of encouraging free and honest communication between spouses.
2. Ends on divorce or death: If the privilege simply disappeared once the marriage ended, either through divorce or death, a person could be compelled to reveal a spouse's confidences the moment the relationship formally ended, undermining the trust the provision is meant to protect.
3. Remains privileged after divorce or death: Making the protection permanent, attaching once and for all at the moment the confidence was shared, is what actually preserves the atmosphere of trust the law wants to encourage between spouses, since neither party need fear that a future divorce or death will strip away that protection.

Only a permanent, unconditional protection serves the underlying purpose of the privilege.

Therefore, the correct answer is Remains privileged communication after the dissolution of marriage by divorce or death.