Law and You >Procedural Laws > Bharatiya Sakshya Adhiniyam, 2023 > Situational Problems BSA: Set 04 (Privileged Communication)
Q 1. Sudhir’ a Govt. servant, commits misappropriation of funds for the purpose of marrying his daughter. ‘Sudhir’ communicates this to his wife ‘Wani’. Five years later, “Sudhir’ and “Wani’ got divorced. A year after his divorce, Sudhir is put on trial for the offence of criminal misappropriation Wani is produced as a witness by prosecution against Sudhir. Can Wani’s testimony be accepted by the Court? Discuss.
No, Wani’s testimony cannot be accepted by the court. It is privileged communication. This privilege continues even after the marriage has been dissolved by the death or divorce. (Section 122 of the Bharatiya Sakshya Adhiniyam, 2023)
Under Section 122 of the Bharatiya Sakshya Adhiniyam, 2023, 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.
Q2. M, a client says to N, an attorney – “I have committed forgery, and I wish you to defend me”.
a) Can M keep it secret or require to disclose the same to Police?
b) Give reasons
a) Yes, M can keep it secret.
b) It is privileged communication. According to Section 132(1) of the Bharatiya Sakshya Adhiniyam, 2023 no advocate, shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his service as such advocate, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional service, or to disclose any advice given by him to his client in the course and for the purpose of such service.
Q 3. Husband Mr. ‘A’ told his wife ‘B’ how his boss was a rascal and of loose character. He also told her that the boss had bad habits regarding any woman. ‘B’ felt sorry for the boss. The boss coming to know that ‘A’ had told her about him. In this situation:
a) Can ‘B’ give evidence against ‘A’ in the Court, in the case filed by the boss?
b) What will be the difference, at the time when ‘A’ had told ‘B’ about the boss, ‘A’ and ‘B’ had been divorced? Why?
a) No, in the case filed by the boss, ‘B’ can not give evidence against ‘A’ in the Court. According Section 128 of the Bharatiya Sakshya Adhiniyam, 2023 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.
b) In this case due to divorce, the marriage is no more in existence, so there is no restriction of the Section 128 of the Bharatiya Sakshya Adhiniyam, 2023. Now, ‘B’ can give evidence against ‘A’ in the Court.
Q 4. A lawyer in the course of his employment as a legal advisor, received certain information and instructions from his client, which was confidential in nature. After the death of the said client, the lawyer was called upon to give evidence and disclose certain information received from the deceased client mentioned above:
a) Is the lawyer permitted to do so?
b) Is the lawyer protected under the Evidence Act, in the above situation?
a) The lawyer is not permitted to disclose the information as it comes under privileged communication.
b) The lawyer is protected under Section 1332(1) of the Bharatiya Sakshya adhiniyam, 2023 no advocate, shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his service as such advocate, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional service, or to disclose any advice given by him to his client in the course and for the purpose of such service.
Q 5. Rani met advocate Tushar for filing a divorce petition against her husband Deepak. Later on Rani and Deepak compromised and withdrew divorce petition and started living together. Later on Deepak wanted divorce. He met advocate Tushar:
a) Can advocate Tushar take the case of Deepak against Rani?
b) Can he atleast give information and evidence in court about what Rani had told Tushar at the time she had filed divorce petition? Why?
a) Yes, advocate Tushar can take the case of Deepak against Rani.
b) No, Tushar cannot give information and evidence in court about what Rani had told Tushar at the time she had filed divorce petition, because it is privileged communication. Under Section 1332(1) of the Bharatiya Sakshya adhiniyam, 2023 no advocate, shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his service as such advocate, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional service, or to disclose any advice given by him to his client in the course and for the purpose of such service.
More Situational Problems:
- Set 01: Admission and Confession
- Set 02: Dying Declaration
- Set 03: Burden of Proof
- Set 05: Documentary Evidence
- Set 06: Witness
- Set 07: Miscellaneous
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