Marital and Legal Communication

Marital Communication Privilege

SECTION 122 OF THE EVIDENCE ACT 1950

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; nor shall he be permitted to disclose any such communication unless the person who made it or his representative in interest consents.

The privilege covers communication (oral, written or by gestures) between spouses but would not cover acts.

How to apply Section 122?

It must be a judicial proceeding,

The maker and the recipient are married, and

The communication is made during marriage.

Legal Professional Privilege

SECTION 126 OF THE EVIDENCE ACT 1950

This provision deals with a lawyer-client relationship.

Section 126 provides that:

An advocate shall not be permitted to disclose any communication made to him in the course and purpose of his employment or to disclose any advice given by him to his client in the course and for the purpose of such employment.

Express consent in Section 126 is an intentional and deliberate act to waive the legal principle by the client.

Note that the privilege under Section 126 will not apply where the communication is not intended to be confidential.

In addition, an advocate and solicitor cannot be compelled to disclose legitimate communications passing directly between him and his client, the privilege does not extend to communications made in furtherance of a fraud or criminal act. In other words, the communication between a lawyer and his client are no longer privileged if it involves a criminal investigation.