Research › Browse › Judgment

Allahabad High Court · body

1991 DIGILAW 846 (ALL)

SHAHNAWAZ AKHTAR v. STATE OF U P

1991-06-05

P.P.GUPTA

body1991
P. P. GUPTA, J. This is a revision, filed by Shahnawaz Akhtar, against the order dated 20-3-1991 passed by the IV Additional Sessions Judge, Azam-garh, rejecting the application of the accused-revisionist and directing the prosecution to produce Rabiya Khatun, the wife of the revisionist, as a prose cution witness. 2. The learned counsel for the revisionist was heard at length at the stage of admission. The only ground pressed before me was that in view of Section 122 of the Indian Evidence Act, the wife of the revisionist, Smt. Rabiya Khatun, cannot be compelled to disclose any communication made to her during marriage. 3. The brief facts, which are relevant for the disposal of this case, are that Smt. Rabiya Khatun had a daughter from her previous husband, Ayub Ansari. After seeking divorce from him, she was remarried to the present revisionist. From her previous wedlock she had a daughter, viz. Rajiya Khatun, who was living with her. Allegedly, the present revisionist committed the murder of Rajiya Khatun. A F. I. R. was lodged by her on 13-7-1988, which is Annexure i to the affidavit of the revisionist. The revi sionist is facing trial for the murder of Rajiya Khatun. 4. During the trial, the accused-revisionist moved an application before the trial court protesting the examination of his wife, Smt. Rabjya Khatun, as a prosecution witness. The said application has been rejected by the learned Additional Sessions Judge by the impugned order. 5. Feeling aggrieved, the accused-revisionist has filed this revision, 6. Section 122 of the Evidence Act lays down that no person, who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married. 7. It is clear from the said provision that protection extends only to communication, i. e. utterances, not acts. It is clear that the mere doing of an act by the husband in the wifes presence is not a communication of it by him; for it is done for the sake of doing, not for the sake of the disclosure. 8. The Supreme Court, in the case of Rumpinq v. DDP, AIR 1970 SC 1876 has held that Section 122 only prevents disclosure in giving evidence by the other spouse in court of the communication made. 8. The Supreme Court, in the case of Rumpinq v. DDP, AIR 1970 SC 1876 has held that Section 122 only prevents disclosure in giving evidence by the other spouse in court of the communication made. It does not mean that no other evidence which is not barred under this section or other provisions of the Act are barred. In the case of Ram Bharosey v. State, AIR 1954 SC 704 the Supreme Court held that the statement of the wife that she saw the accused (her husband) on the early hours of 27-5-1952 (day of murder) while it was still dark coming down the roof of his house. That he went to the bhusa kothri and came out again and had a bath becoming naked and were on the same dhoti, is not inadmissible as it has reference to his acts and conduct and not to any communication made to the wife. 9. In view of the law laid down by the Honble Supreme Court, it is, therefore, clear that what is barred under Section 122 is the communication by one spouse to the other made during marriage and not the acts made by one spouse in the presence of the other. Section 122 cannot, therefore, be a bar for the wife to depose against her husband. The bar is only against the dis closure by her of the communication made by her husband during marriage to her. At this stage, what the learned Additional Sessions Judge has directed is that Smt. Rabiya Khatun, the wife of the accused-revisionist, may be exa mined as a prosecution, witness. Her examination as a witness is not barred under any provision of law. The revisionist may raise objection if Smt. Rabiya Khatun is examined regarding any communication made by her husband to her during marriage. She cannot be prevented from deposing the other acts of her husband, which do not fall within the ambit of communication made to her during marriage. The revision is, therefore, misconceived. 10. It may also be mentioned here that the impugned order is an inter locutory order, against which no revision lies. 11. For the reasons given above, the revision has no force and is hereby dismissed. Revision dismissed. .