Explainer · BSA · Evidence Law
Communications During Marriage (Spousal Privilege) Under the BSA (Section 128): Evidence Act 122 Mapping (2026)
Marriage depends on being able to speak freely in private. The law protects that trust. A husband or wife generally cannot be forced to reveal what their spouse told them during the marriage, and cannot volunteer it without consent. Under the new law this privilege is in Section 128 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which replaced Section 122 of the old Indian Evidence Act, 1872 from 1 July 2024. It is a rule of evidence, not an offence, so it carries no punishment. Last verified October 2026.
- What it is: a married person cannot be compelled, and may not without consent be permitted, to disclose a communication made to them by their spouse during the marriage.
- New section: Section 128 of the BSA, 2023.
- Old section: it replaced Section 122 of the Indian Evidence Act, 1872.
- Exceptions: suits between the spouses, and the prosecution of one spouse for a crime against the other.
- No punishment: this is an evidence rule, not an offence.
- Search and track: Claw searches 30 crore+ judgments and tracks matters across 9,102 courts, benches and forums.
01Why the privilege exists
Spouses confide in each other. If everything said at home could later be dragged into court through the other spouse, that confidence would be destroyed, and the harm to the marriage would outlast any single case.
The privilege protects the institution of marriage, not just the individual. It keeps private conversations between husband and wife out of the witness box, so that neither is turned into a weapon against the other. The law treats this trust as worth protecting, and makes an exception to the general rule that a witness must answer relevant questions.
People searching "section 122 evidence act in bsa", "spousal privilege bsa", or "bsa 128" are looking for this rule.
02What Section 128 protects
Under Section 128 of the BSA, no person who is or has been married shall be compelled to disclose any communication made to them during the marriage by the person to whom they are or have been married. Nor shall they be permitted to disclose it, unless the person who made the communication, or their representative in interest, consents.
Three points flow from this:
- It covers communications made during the marriage. Things said before the marriage, or after it has ended, are not protected by this section.
- It survives the marriage. The words "is or has been married" mean the privilege continues even after the marriage ends by divorce or death, for communications that were made while the marriage subsisted.
- Consent lifts it. The spouse who made the communication, or their representative in interest, can consent to its disclosure.
An evidence rule, not an offence
Section 128 does not create a crime and has no punishment. The words cognizable, bailable, and triable by do not apply. It decides when a spouse can be made to disclose a marital communication.
03The two exceptions
The privilege is not absolute. It does not apply in two situations, where the reason for protecting the marriage gives way.
- Suits between the married persons. In a case between the spouses themselves, for example a matrimonial dispute, the privilege does not bar disclosure of their communications.
- Prosecution of one spouse for a crime against the other. Where one married person is prosecuted for a crime committed against the other, the privilege does not apply, so the communications can be disclosed.
These exceptions make sense. In both, the marriage itself is the arena of the dispute, so protecting secrecy between the spouses would defeat justice.
04The limits of the privilege
Two limits are worth knowing, because they are often misunderstood.
- It protects communications, not acts. The privilege covers what was communicated. Conduct that a spouse merely observed, as opposed to a communication made to them, is generally not within the bar.
- It bars the spouse from testifying, not the evidence by every route. The Supreme Court has read the old provision as barring the spouse from disclosing the communication in the witness box, while leaving open the use of the communication if it is brought before the court by other lawful means. In a 2025 decision the Court held that a secretly recorded conversation between spouses could be admitted in a matrimonial dispute.
For related privilege rules, see our overview of the key changes from the Evidence Act to the BSA.
05Section 122 Evidence Act to the BSA
The privilege for communications during marriage, which was Section 122 of the Indian Evidence Act, 1872, is now Section 128 of the BSA. The substance is carried forward, with a change in the numbering.
| Old law (Indian Evidence Act, 1872) | New law (BSA, 2023) | Subject |
|---|---|---|
| Section 122 | Section 128 | Communications during marriage (spousal privilege) |
So if you are searching for "section 122 evidence act in bsa", the answer is Section 128.
06Where Claw fits
Claw is an all-in-one legaltech platform for Indian advocates, law firms, and corporate legal teams, combining AI-based case search, an AI legal assistant (Legal GPT), case management, and compliance automation across all Indian courts and tribunals.
Spousal privilege surfaces in matrimonial suits, in dowry and cruelty prosecutions, and now in the fight over secretly recorded conversations, and how far it reaches depends entirely on how the courts have read it. Claw helps you find that reading quickly. You can search more than 30 crore judgments, with Supreme Court decisions covered from 1950 and High Court decisions from 1990, to trace how Section 128 and the old Section 122 have been applied, with results in under 5 seconds, and you can follow a live matter through its orders and hearing dates across the 9,102 courts, benches and forums Claw tracks. See case search across Indian courts.
Create a free Claw account to search and follow these matters by party or advocate name. Claw does not use customer case documents to train AI models, so a sensitive matrimonial file stays confidential, and Claw is a research and tracking tool, not a substitute for legal advice.
07Sources and further reading
- India Code (official text of the Bharatiya Sakshya Adhiniyam, 2023): indiacode.nic.in
- Ministry of Home Affairs (the new criminal laws): mha.gov.in
- Supreme Court of India (judgments): sci.gov.in
- Claw: clawlaw.in
This explainer is general information, not legal advice. The new criminal laws are still being read and applied by the courts, so check the current text of the BSA and take advice from counsel before you rely on a provision.
08Frequently asked questions
What is spousal privilege under the BSA?
It is the privilege in Section 128 of the Bharatiya Sakshya Adhiniyam, 2023 that a married person cannot be compelled to disclose, and may not without consent be permitted to disclose, a communication made to them during the marriage by their spouse. It replaced Section 122 of the Indian Evidence Act, 1872.
Which section of the Evidence Act is spousal privilege in the BSA?
It was Section 122 of the Indian Evidence Act, 1872, and it is now Section 128 of the BSA. The substance is carried forward, with a change in numbering.
Does the privilege continue after divorce?
Yes, for communications made while the marriage subsisted. The section applies to a person who is or has been married, so the privilege continues even after the marriage ends by divorce or death, for communications made during it.
When does spousal privilege not apply?
In two situations: in a suit between the married persons themselves, and in a prosecution of one spouse for a crime committed against the other. In both, the communications can be disclosed.
Is there a punishment under Section 128?
No. Section 128 is a rule of evidence, not an offence, so it carries no punishment, and the terms cognizable or bailable do not apply. It only decides when a spouse can be made to disclose a marital communication.
How can I find judgments on spousal privilege?
On Claw you can search more than 30 crore judgments by section, party or advocate, with Supreme Court rulings covered from 1950 and High Court rulings from 1990, to see how Section 128 and the old Section 122 have been read, usually in under 5 seconds, and follow live matters across the 9,102 courts, benches and forums it tracks. A free account lets you search and track by party or advocate name.