Section 128 BSA: Communications during marriage

Bharatiya Sakshya Adhiniyam, 2023

Section 128 BSA at a Glance

Section 128 BSA deals with communications during marriage. It replaced Section 122 IEA on 1 July 2024.

Was IEA

Section 122 →

Section 128 BSA Bare Act Text

128. Communications during marriage

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, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.

Source: Section 128, Bharatiya Sakshya Adhiniyam, 2023

Section 128 BSA in Simple Words

Section 128 of the Bharatiya Sakshya Adhiniyam, 2023 protects private communications made between spouses during marriage from being revealed in court. A person who is married, or was married earlier, cannot be forced to disclose any communication received during the marriage from a current or former spouse.

Even if the person who received the communication wants to speak about it in court, the court cannot allow disclosure. Disclosure is allowed only if the spouse who made the communication gives consent, or if the representative in interest (a person who legally stands in place of that spouse) gives consent.

The bar under Section 128 BSA has exceptions for disputes between the spouses. The restriction does not apply in suits (civil cases) between married persons, or in proceedings where one married person faces prosecution (a criminal trial) for a crime committed against the other spouse.

When Section 128 BSA Applies

  • Applies to any person who is currently married or was married in the past.
  • Covers any communication made to that person during the marriage by a current or former spouse.
  • Stops the recipient spouse from being forced to disclose the communication, and stops the recipient spouse from voluntarily disclosing it without consent.

Example of Section 128 BSA

In September 2024, during a marriage in Jaipur, Priya tells Farhan in a private message about a business dispute. Later, a supplier files a civil suit against Priya and summons Farhan as a witness to disclose the message. Priya refuses to consent to the disclosure of the message. Under Section 128 BSA, the court cannot compel or permit Farhan to disclose what Priya communicated about the dispute during the marriage.

When Section 128 BSA Does Not Apply

  • The bar on permitting disclosure does not apply if the spouse who made the communication, or the representative in interest of that spouse, consents.
  • Does not apply in civil suits between the married persons.
  • Does not apply in proceedings where one married person faces prosecution for a crime committed against the other spouse.

Section 128 BSA in the IEA (Previous Law)

Section 128 BSA replaces Section 122 IEA from the old criminal code.

Section 122 of the Indian Evidence Act, 1872 became Section 128 of the Bharatiya Sakshya Adhiniyam, 2023 on 1 July 2024 without any change in wording.

FAQs on Section 128 BSA

What is Section 128 BSA?▼

Section 128 of the Bharatiya Sakshya Adhiniyam, 2023 is the rule that protects communications made between spouses during marriage from being disclosed in court. It stops a current or former spouse from being forced or allowed to reveal such communications, unless consent is given or a listed exception applies.

Does Section 128 BSA still apply after a marriage ends?▼

Yes. Section 128 BSA covers any person who has been married, as long as the communication was made during the marriage.

Can a spouse voluntarily reveal a marital communication in court under Section 128 BSA?▼

No. Under Section 128 BSA, a spouse is not permitted to disclose a communication made during marriage unless the spouse who made it, or the representative in interest of that spouse, consents. The only other exceptions are suits between the spouses or prosecutions for a crime committed by one spouse against the other.

Does Section 128 BSA block evidence when one spouse is prosecuted for a crime against the other spouse?▼

No. Section 128 BSA creates an exception for criminal proceedings where one married person faces prosecution for a crime committed against the other spouse.

What is Section 128 BSA in IEA?▼

Section 122 IEA. Section 128 BSA replaced Section 122 IEA on 1 July 2024 without any change in wording.

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Disclaimer: This is for informational purposes only. Always consult a qualified advocate for legal advice.

Sources: Bare Act Text, Bharatiya Sakshya Adhiniyam, 2023 ·