Madras High Court
Shenbagavalli vs Kallaichelvi on 30 November, 2020
Author: N.Seshasayee
Bench: N.Seshasayee
S.A.No.120 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on : 05.06.2020
Judgment Pronounced on : 30.11.2020
CORAM: THE HONOURABLE Mr.JUSTICE N.SESHASAYEE
S.A.No.120 of 2008
and MP.No.1 of 2011
1. Shenbagavalli
2. Saravanakumar ... Appellants/Respondents/Defendants
Vs
Kallaichelvi .... Respondent/Appellant/Plaintiff
Prayer :- Second Appeal filed under Section 100 of CPC, against the
judgment and decree dated 31.07.2006 passed by the Principal District
Court, Villupuram District, Villupuram in A.S.No.34 of 2005, against the
judgment and decree of the learned Principal Subordinate Judge, Villupuram
in O.S.No.29 of 2004 dated 25.4.2005, so far as dealing the entire suit claim
instead of Rs.75,000/-
For Appellants : Mr.N.Suresh
For Respondent : Mr.R.Rajarajan
for Mr.R.Balakrishnan
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http://www.judis.nic.in
S.A.No.120 of 2008
JUDGMENT
The defendants who are partially successful in resisting the suit laid for recovery of sum of Rs.1.25 lakhs, which the plaintiff alleges as having been advanced to the former, but suffered a decree for the entire suit claim before the first appellate court, have preferred this second appeal. Parties would be referred to by their rank before the trial court.
2. Plaintiff's case is straight forward, and may now be stated:
● On 01.4.2001, under Ext.A1 promissory note, the defendants have borrowed Rs. 1.25 lakhs, and have agreed to repay the same with interest @12% per annum. The said promissory note is in the handwriting of the second defendant. The plaintiff has been demanding the repayment of the sum advanced, but the defendants were continuously unenthusiastic about the repayment.
● Therefore, plaintiff was constrained to prefer Ext.A4, complaint to the police. While so, on 12.4.2003, shortly prior to the plaintiff preferring Ext.A4 complaint, the defendants issued Ext.A-2 notice 2/38 http://www.judis.nic.in S.A.No.120 of 2008 through their counsel, alleging that under Ext.A1 promissory note only Rs.75,000/- was received as consideration, and towards the repayment of which the defendants have already paid Rs.56,250/-.
Thereafter, the defendants issued Ext.A3 notice dated 27.9.2003 reiterating the same allegations. It is in this circumstance, plaintiff issued Ext.A5 notice dated 04.03.2004, to which, the defendants have issued Ext.B1 dated 13.3.2004, reiterating the same contention. It is in these circumstances, plaintiff laid the suit for recovery of Rs.1.25 lakhs with interest at 9% throughout.
3. In his written statement the second defendant has alleged:
➢ That the first defendant is his sister, that they both are agriculturists, that to meet certain expenses in connection with their agricultural activity, they had borrowed Rs.75,000 from the plaintiff, that only at the instance of the plaintiff and her husband a promissory note was executed for Rs.1.25 lakhs, and that the promissory note was not fully supported by consideration. Further, they have been paying interest at 36% per annum, towards which he has paid interest @ Rs.2,250/-
p.m, and had accordingly paid Rs.56,250/- towards interest alone.3/38
http://www.judis.nic.in S.A.No.120 of 2008 ➢ While so, in April, 2003, plaintiff insisted the defendants to close the loan, but the defendants could not. Hence, on 10.4.2003, the plaintiff and her husband brought in some rowdy elements to intimidate the defendants, following which, the defendants were constrained to prefer Ext.A2 notice dated 12.04.2003 to the plantiff and Inspector of Police, Villupuram West Police Station. It is in this background, the plaintiff has issued an innocent looking Ext.A5 notice dated
04.3.2004, to which, the defendants have sent their Ext.B1 reply dated 13.3.2004 promptly.
4.1 The dispute went to trial where the plaintiff did not enter the box, but her husband was examined as P.W.1 Both the defendants were examined as D.W.1 and D.W.2 respectively, and have also examined one Shanumugam as D.W.3. The documents that the parties relied on have already been introduced.
4.2 The issue before the trial Court was whether Ext.A1 promissory note was not supported by consideration to the extent of Rs.50,000/- as 4/38 http://www.judis.nic.in S.A.No.120 of 2008 contended by the defendants. The trial Court primarily relied on Ext.A3 notice dated 27.09.2003, which the defendants had addressed to the plaintiff, raising the said contention. It is further indicated in Ext.A3 that the defendants have preferred a complaint before the police. This is repeated even in Ext.A2 reply notice dated 12.4.2003, reiterating the same position. Neither of these notices of the defendants were replied to by the plaintiff and this has tilted the advantage in favour of the defendants for the trial court to hold that what is not disputed at the earliest point of time constituted an admission. Secondly, it has pointed out that the plaintiff has not entered the witness box, but only her husband was examined before the Court. Though the husband is a competent witness for the wife, yet the nature of cross examination indicates that the non-appearance of wife would give rise to an inference that she has deliberately avoided the trial and denied to address evidence to the Court. Accordingly, it decreed the suit partially, reckoning the principal amount at Rs.75,000/- and directed it repayment with interest of 9% p.a., and a further interest of 6% p.a.
5. This was challenged by the plaintiff in A.S.No.34 of 2005 before the Principal District Judge Villupuram. After relying on the ratio in Bharat 5/38 http://www.judis.nic.in S.A.No.120 of 2008 Barrel and Drum Manufacturing Company Vs. Amin Chand Payrelal [1999(3) L.W.237], M.Nallusamy Vs. K.Subramaniam [2005 (1) MLJ 116], Natarajan Vs. Marappa Gounder [2004 (4) L.W.482], and Kanagambaram Ammal Vs. Kakammal & 5 others [2004 (4) L.W. 408] and few other authorities, the first appellate Court has held that inasmuch as the defendants have admitted the execution of Ext.A-1 promissory note, which would instantly allow the presumption under Sec.118(a) of the Negotiable Instrument Act to operate, and hence, the burden is essentially on the defendants to rebut the same. The defendants, according to the first appellate court, have not managed to rebut it. Secondly, when the burden is chiefly on the defendants, non-appearance of the plaintiff to examine herself pales into insignificance. Ultimately it allowed the appeal
6. The appeal is admitted on the below substantial question of law :
“Is there a burden on the plaintiff to examine herself notwithstanding the fact that her husband has been examined, who is the competent witness for her under Section 120 of the Evidence Act?"6/38
http://www.judis.nic.in S.A.No.120 of 2008
7. The learned counsel for the appellants / defendants raised the following contentions:
● The case of the defendants is not that they have not borrowed any sum under Ext.A1 promissory note, and they only plead partial failure of consideration to the tune of Rs.50,000/-. In every case, where a document is executed, the document itself is the best evidence to prove its contents, and the rebuttal of any of the contents of the document can be only through material outside the document. In other words, the rebuttal may have to be inferred only from circumstantial evidences, whose merit would be decided by the rule of preponderance of probability.
● Even though, the plaintiff's husband is a competent witness, so far as the amount actually advanced by the plaintiff to the defendant is something that falls within the exclusive knowledge of the plaintiff, and she is the best witness to speak to the said fact. He relied on the following authorities: Iswar Bhai C.Patel alias Bachu Bhai Patel Vs. Harihar Behera and Another [(1999) 3 SCC 457], Vidhyadhar Vs. Manikrao and Another [(1999) 3 SCC 573], T.Tamilarasan Vs. 7/38 http://www.judis.nic.in S.A.No.120 of 2008 Arokkiasamy and others [2007 (3) CTC 59] and Munni Devi Vs. Sona Devi [CDJ 2014 All HC 1278]. And that, when she was not examined, the court ought to have drawn adverse inference against the plaintiff, which if done would have singlehandedly taken the defendants ashore as it itself would constitute a rebuttal evidence to upset the presumption under Sec.118(a) of the Negotiable Instruments Act.
8. Per contra, the learned counsel for the respondent/plaintiff argued that it is a case where the promissory note in question was written down in the hand of the second defendant, and this fact reinforces the presumption under Sec.118(a) of the N.I.Act. Secondly, on the point of need for examining the plaintiff is concerned, her husband, who is examined as P.W.1 is a competent witness and his cross examination discloses that there is nothing as affecting the cause of action which is shown to be within the exclusive knowledge of the plaintiff. He relied on the authority in John Howe Vs. Charlotte Howe [(1913) 25 MLJ 594].
8/38 http://www.judis.nic.in S.A.No.120 of 2008 Spousal Competency: Challenges
9. These submissions were considered with due care. The facts of the case and the dispute they have raised fall within the zone of predictable familiarity. The point, however raised is about the need for the wife to testify examination of her husband in terms of Sec.120 of the Evidence Act notwithstanding.
10. There is no disputing the fact that in terms of Sec.120 of the Evidence Act, a spouse is a competent witness for the other spouse who litigates. It falls under Chapter IX of the Evidence Act, titled 'Of Witnesses'. This provision may have to be read alongside Sec.118, the opening provision in Chapter IX. They are provided below:
Who may testify-
All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions, by tender years, extreme old age, disease, Section 118 whether of body or mind, or any other cause of the same kind.
Explanation - A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.9/38
http://www.judis.nic.in S.A.No.120 of 2008 Parties to Civil suit, and their wives or husbands. Husband or wife of person under criminal trial:
In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be Section 120 competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness.
If the provision is read closely, Sec.118 declares that all persons are competent witnesses, while Sec.120 deals with a particular category of witnesses: the spouses. It can also be noticed that there are hardly any limiting terms in Sec.120 to qualify the extent to which the spousal competency to be a witness for or against each other may extend.
11.1. Given the statutory scheme of the Evidence Act, the competency that law attributes to a non-litigating spouse to testify for the other spouse as founded in Sec.120 is often tested by an apparently conflicting provision in Sec.106 of the Evidence Act. This provision provides that the burden to prove a particular fact is on the one within whose exclusive knowledge it is. Accordingly, if a particular fact is within the exclusive knowledge of the litigating spouse, then is it not necessary for that very spouse to testify as 10/38 http://www.judis.nic.in S.A.No.120 of 2008 this is the statutory way of discharging the burden? And if as to this fact which is within the exclusive knowledge of the litigant-spouse, the other spouse is allowed to testify, does not Sec.120 then carve out an exception to Sec.106? Conversely, if it were to be insisted that notwithstanding Sec.120, that only the litigant-spouse should testify to facts which are within his or her exclusive knowledge, does it not then mean that Sec.106 operates as an exception to Sec.120 of the Evidence Act? Are these provisions locked in a bottleneck? The appellants/defendants require this court to inform them on the merit of their argument which has raised it.
11.2 Witness-competency is not the same as the rule of best evidence. While Sec.118 deals with witness-competency, the rule of best evidence is essentially outlined in Sec.3, read with Sec.60 and 62 of the Evidence Act. These provisions read:
Fact:
(1) any thing, state of things, or relation of things, Section 3 capable of being perceived by the senses;
(2) any mental condition of which any person is conscious.
Oral evidence must be direct:-
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http://www.judis.nic.in S.A.No.120 of 2008 oral evidence must, in all cases whatever, be direct; that is to say-
if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
if it refers to a fact which could be heard, it must be Section 60 the evidence of a witness who says he heard it;
if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;
it if refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.
Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable.
Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.
Primary Evidence-
Section 62 Primary evidence means the document itself produced for the inspection of the Court 12/38 http://www.judis.nic.in S.A.No.120 of 2008
12. A judicial fact-finding is all about ascertaining the proof of the facts in issue - the facts that constitute the cause for an action, or, of facts relevant to the facts in issue. What engages the anxiety of the Court more is 'the fact', and its proof or disproof, and not who produces them before the Court. The chapter on burden of proof therefore, only enables the Court to hold if a fact is proved or not on the basis of whether the burden of proving a fact is discharged or not. Still, what interests the Court is ' the fact'. This would now necessarily require telescoping the definition of 'fact' as in Sec.3 as well as Sec.60 of the Evidence Act into Sec.118 of the Act. Accordingly, it must be now stated that all persons are competent witnesses, provided they testify to facts as defined in Sec.3 of the Act. To state it differently, Courts worry not about who the witness is, as long as the witness speaks to the fact which he has perceived with his senses, or speaks to the mental state of which he is conscious of ( the expression 'his' and 'he' includes to mean 'her' and 'she' as well), which are relevant to prove the fact in issue in terms of Secs.5 to 55 as in Chapter II of the Act.
13. Therefore, the competency of a witness in the context of the best evidence rule is anyone who is competent to speak to the fact within the 13/38 http://www.judis.nic.in S.A.No.120 of 2008 meaning of Sec.3 and fulfills the criterion in Sec.60 of the Act. This distinguishes the functional competency of the witness from the personal competency as provided in Sec.118 of the Evidence Act, and this goes by the expression as the rule of best evidence. This rule applies in equal vigour to documentary evidence where a party is required to produce the very document which he/she relies on for proving or disproving a fact in issue or a relevant fact.
14.1 It is hence, the Evidence Act forbids hearsay evidence. However, this is subject to two well established exceptions: Admission, and statement of a person as to the cause of his/her death. They have their jurisprudential justification founded on the ordinary course of human conduct. An admission is a statement made against the personal or the proprietary interest of the person making it, and hence they are presumed to have a guarantee of truth about it. Law presumes it thus, because a statement constituting an admission is contrary to the ordinary human behaviour which generally impels a person to defend his/her interest rather than conceding it. A similar guarantee as to the truth of the statement constituting the cause of the death is attributed when it is made by a person 14/38 http://www.judis.nic.in S.A.No.120 of 2008 who sees death staring at him, on the basis that a person slipping from the hands of life might not lie. It must be emphasised that these exceptions to the rule of hearsay are founded not since the quality of the statements and the circumstances in which they are made, but because there is a guarantee of truth about them.
14.2 If contrasted with this, the competency which a non-litigating spouse acquires in terms of Sec.120 of the Act to testify facts to which he/she is not a privy can be justified only on a presupposition that spouses do not withhold anything as between them, and they at all time share nothing short of absolute truth. This presupposition cannot be traced to any human behaviour ordinarily witnessed, but can be supported only by pure belief (which positive law frowns upon, and hence the legal positivists might opt for the word 'presumption'). But what it constitutes is plain hearsay. 14.3 Now, if the choice of the expressions in Sec.120 is accepted as the fundamental basic-premise and as repository of the legislative intent behind them, then it is easy to pick the frequency of the statement this provision makes: That it operates as an exception to hearsay, as it enables a spouse to 15/38 http://www.judis.nic.in S.A.No.120 of 2008 testify not only to any admissions (which is an indisputable exception to hearsay) made by the other spouse, but also to all that are within the personal knowledge of such other spouse. Does it not then demonstrate that the spousal competency as enabled in Sec.120 of the Act become a license to speak to hearsay? Does it not then sanctify the jurisprudential sacrilege of hearsay, if the parties to a litigation happen to be spouses? And, except a presupposition that as between them spouses share total and true transparency, is there any perceptible rationale for granting unrestricted competency to spouses to be a witness for or against each other in Sec.120 of the Act. There is hardly any.
Spousal competency: Evolution 15.1 To understand what this Court might state as an unintended effect of an legislative exercise behind Sec.120, it may be necessary to travel back in time to appreciate the metamorphic evolution of spousal competency. 15.2 The early common law, in the course of its growth had attached considerable significance to the qualifications of the persons to be witnesses. An extensive list would soon be developed of the persons who 16/38 http://www.judis.nic.in S.A.No.120 of 2008 were disqualified to give evidence by the reason of their presumed unworthiness. This list included non-Christians, convicted felons, the parties to cases, the spouses of parties, and any other persons with an interest in the outcome of the case. These persons were treated as incompetent witnesses in the sense that they could not be lawfully called to give evidence. [See Ian Dennis, Law of Evidence, III Edition, Sweet and Maxwell, page 521]. The disqualification which common law imposed on spouses to be a witness for each other is founded on the principle that they share identical interests, and to let them become a witness for or against each other would be opposed to public policy. The earliest statement of the position in common law is found in Sir Edward Coke’s Commentaries on Littleton, [at folio 6(b)], it is stated :
“It hath been resolved by the Justices, that a wife "cannot be produced either against or for her husband, '" quia sunt duae animae in came una'; and it might be a "cause of implacable discord and dissention between the "husband and the wife, and a meane of great inconvenience.” This is paraphrased in the following passage from Best on Evidence [12 th Edition, page 164], which has been quoted with approval by the Supreme Court of Ceylon in S. Arumugam v. Seethevi, [1953 SCC OnLine SL SC 74] 17/38 http://www.judis.nic.in S.A.No.120 of 2008 “Husband and wife, say our books, are considered as one and the same person in law, and to have the same affections and interests; from whence it has been established as a general rule that the husband cannot be a witness for or against the wife, nor the wife be a witness for or against the husband, by reason of the implacable dissension which might be caused by it, and the great danger of perjury from taking the oaths of persons under so great a bias, and the extreme hardship of the case” 15.3 These rules of witness-competency as founded and developed under the common law came under a scathing attack from Jeremy Bentham who, in his inimitable style, observed [from Jeremy Bentham, Rational of Judicial Evidence, J.S Mill Edition, London, 1827, Vol 5, p, 743.]:
“In principle there is but one mode of searching out the truth….Be the dispute what it may, …. see every thing that is to be seen, hear every body who is likely to know anything about the matter: hear every body, but most attentively of all, and first of all, those who are likely to know most about it, the parties.” In Taylor’s Treatise on the Law of Evidence, the criticism of the common law rule of disqualification was equally unsparing. It reads [1848 Edition, Vol II at page 898]:
“They cannot be witnesses for each other, because their interests 18/38 http://www.judis.nic.in S.A.No.120 of 2008 are identical, neither can they testify against each other, because the admission of such testimony would lead to dissension and unhappiness, and possibly to perjury. It is essential to the happiness of social life, that the confidence subsisting between husband and wife should be sacredly cherished; and to impair the great principles which protect the sanctity of that relation, would be to destroy the best solace of human existence. Such are the reasons usually given by the Judges, and adopted by the text writers, for excluding the testimony of married persons for or against each other; and probably these reasons sufficiently explain the rule for most practical purposes, though it would appear, on close examination, that they are not strictly accurate, and do not embrace all the cases that are governed by the rule. Thus, the ground of exclusion which depends upon identity of interest, is obviously too narrow, since, in an action brought by the trustees of a wife against the sheriff, for seizing under an execution against the husband goods that were settled to her separate use, the husband cannot be called by the plaintiffs to prove the identity of the goods, though his interest in such case might be diametrically opposed to that of his wife; and if the property could not have been taken to satisfy his debt, he would still be liable to pay it afterwards. On the other hand, the second ground which rests on the sacredness of conjugal communications is too large, since it would exclude all such communications, even where married persons were witnesses in actions between strangers.” 19/38 http://www.judis.nic.in S.A.No.120 of 2008 Taylor also cites the case of Pedley v Wellesley (3 C & P 558) where one of the plaintiff's witnesses, after she was actually subpoenaed to testify in the suit, married the defendant. Best C.J held that she was incompetent to testify.
In his lectures on 'Law of Evidence applicable to the Courts of the East India Company', J.B. Norton explains (6th Edition, J. Higginbotham, Madras, 1867, page 37):
“…The Law further interferes to prevent the reception of certain classes of evidence upon the ground of Public Policy. In these cases it will be found that there is nothing suspicious in the nature of the testimony offered, but it has been thought advisable from a consideration of the convenience of the public, and the peace and safety of society, that such testimony should not be given on compulsion, as in the case of an ordinary witness bound to give his evidence, however unwillingly. Such ground of exclusion operates upon; first, the disclosure of State secrets; secondly, privileged communications between Counsel and Client; thirdly , the testimony of Husband and Wife for or against each other; fourthly, the necessity of replying to incriminating questions .
In R v Khairulla,[(1866 ) 6.W.R (Cr) 21 (FB)] Sir Barnes Peacock C.J expressly invokes Bentham and observed:20/38
http://www.judis.nic.in S.A.No.120 of 2008 “Bentham, speaking of the rule of English law which excludes the evidence of a wife against her husband, says:— “A law which should exclude the evidence of the wife in the case of a prosecution against her husband for ill-usage done to the wife, would be tantamount to authorizing the husband to inflict on the wife all imaginable cruelties so long as nobody else was present — a condition which, having by law the command in and over his own house, it would in general be in his power to fulfill. A law which excludes the testimony of the wife in the case of a prosecution against her husband for mischief done to any other individual, or to the State, is, in like manner, in other words, a law authorizing him to do, in the presence and with the assistance of the wife, every kind of mischief, that excepted by which she would be a sufferer. The law which in the former case affords protection to the wife, — with what consistency can if, in the latter case, refuse its protection to every human creature besides?” See Bentham's Works by Bowring, Vol. VII, p. 484. “Two men, both married, are guilty of errors of exactly the same sort, punishable with exactly the same punishment. In one of the two instances (so it happens), evidence sufficient for conviction is obtainable without having recourse to the testimony of the wife. While the one suffers, — capitally, if such be the punishment, — to what use, with what consistency, is the other to be permitted to triumph in impunity?”
16.1. Influenced perhaps by the growing criticism, in the Evidence Act, 21/38 http://www.judis.nic.in S.A.No.120 of 2008 1843, the British Parliament removed few of the disqualifications affecting witness-competency on the ground of interest which had previously existed, yet it did not travel the entire distance to eliminate the spousal- incompetence to be a witness for or against each other. 16.2. In 1853, the Common Law Commissioners presented their Second Report in which a recommendation was made to abolish the common law rule of spousal incompetence to testify for or against each other. However, they added a rider that all communications between husband and wife should, however, be treated as privileged. This recommendation was accepted by the British Parliament when it brought forth the Evidence Amendment Act, 1853 (better known as Lord Brougham’s Act). Section I of the Act declared that husbands and wives were competent witnesses for each other except in criminal proceedings or proceedings instituted in consequence of adultery. Section 3 of the Act declared that spouses cannot be compelled to disclose communications made to them by the other spouse during the subsistence of the marriage.
16.3. However, when the English Divorce law was passed in 1857, doubts 22/38 http://www.judis.nic.in S.A.No.120 of 2008 arose whether the common law doctrine barring the spouses as witnesses continued to survive. In John Howe Vs Charlotte Howe [(1915)ILR 38 Madras 466 : (1913) 25 MLJ 1594 : 1913 MWN 983], a Full Bench of this High Court has recorded:
“...In 1857, when the English Divorce Act was passed, doubts were caused as no how far the old doctrines of the common law in relation to the competency of witnesses were to be recognised in the Divorce Court. It was accordingly enacted by the Evidence further Amendments Acts of 1869 that the parties to any proceeding instituted in consequence of adultery and the husbands and wives of such parties should be competent to give evidence in such proceeding. The effect of this enactment is to make the parties to divorce proceedings competent to give evidence. It does not in terms abrogate so far so divorce proceedings are concerned, the rule of the common law that “Neither husband nor wife can be examined for the purpose of proving non-access during marriage.”
17.1 The British experience of the Evidence Amendment Act, 1853, was experimented in this country when the Legislative Council of India passed Act II of 1855 titled “An Act for the further improvement of the Law of Evidence”. Section XVIII of the Act abrogated the common rule and 23/38 http://www.judis.nic.in S.A.No.120 of 2008 declared :
“No person shall, by reason of any interest in the result of any suit or of any interest connected therewith, or by reason of relationship to any of the parties thereto, be incompetent to give evidence in such suit.” Now arrives Sec. XX. It declared spousal competency to be witnesses (which as stated earlier, has been borrowed from Section 1 of Lord Brougham’s Act). It presented a fusion of part of Sec. 120 and Sec.122 of the Evidence Act, 1872 that was to replace it later. Sec. XX of Act II/1855 reads as follows :
“A husband or wife shall in every civil proceeding be competent to give evidence for or against each other. Provided that any communication made by husband or wife to the other during their marriage shall be deemed a privileged communication and shall not be disclosed without the consent of the person making the same, unless such communication shall relate to a matter in dispute in a suit pending between such husband and wife.” In a later judgement in Lucas v. Brooks, [85 US 436 (1873)] the U.S Supreme Court held:
“4.The first is, that the court refused to admit in evidence the deposition of Catharine Lucas, the wife of the defendant. That it is a rule of the common law, a wife cannot be received as a 24/38 http://www.judis.nic.in S.A.No.120 of 2008 witness for or against her husband, except in suits between them, or in criminal cases where he is prosecuted for wrong done to her, is not controverted. But it is argued, because Congress has enacted that in civil actions in the courts of the United States there shall be no exclusion of any witness because he is a party to, or interested in the issue tried, the wife is competent to testify for her husband. Undoubtedly the act of Congress has cut up by the roots all objections to the competency of a witness on account of interest. But the objection to a wife's testifying on behalf of her husband, is not and never has been that she has any interest in the issue to which he is a party. It rests solely upon public policy. To that the statute has no application. Accordingly, though statutes similar to the act of Congress exist in many of the State, they have not been held to remove the objection to a wife's competency to testify for or against her husband.” 17.2 It may be noted that Sec. XX of Act II/1855, was confined to civil proceedings and the common law rule of spousal incompetency continued its application to criminal case, though it was limited to the Presidency towns alone. J.B.Norton writes (at page 41):
“71a. A question has been raised whether a husband or wife can be evidence for or against each other in criminal cases in a Mofussil Court. Previous to Act II of 1855, they could not have been in any case. Sec. XX makes them competent in civil cases;25/38
http://www.judis.nic.in S.A.No.120 of 2008 and criminal cases are impliedly excluded, for expressio unius est exclusio alterius. Since this was written, a case in which the Court of Toujdaree sentenced a man found guilty of murder to be hung on the sole evidence of his own wife has led to some discussion. Strictly this evidence was properly received for Act II of 1855, Sec. 58, provides that the Act shall not render inadmissible in any Court any evidence which would have been receivable in such Court before the Act. Mr. Arbuthnot in his Preface to the Select Decrees, while admitting that the English Law of Evidence gives the general rule, states that there are some exceptions, and specifically points out that the evidence of a wife may still be received against the husband in the Mofussil Courts . There is a Circular Order of the Court of Foujdaree Adawlut issued in March 1830, which expressly sanctions the receipt of such evidence. It may have been thought that the legal fiction that the husband and wife are one person does not apply to the status of marriage among Natives in India. And certainly where there is plurality of wives, or even husbands, as obtain in certain parts of India, the state of Society would seem to require a modification of the English Law of Evidence in this particular. The case alluded to above arose in Malabar, where a woman has plurality of husbands. It may be anomalous that there should be one rule of evidence in the High Court of Madras, and another in the Courts in the Mofussil; and it may possibly lead to some inconveniences and difficulties. But this is matter for Legislative interference.” (emphasis supplied) 26/38 http://www.judis.nic.in S.A.No.120 of 2008 17.3 The spousal disqualification to be a witness against each other in criminal cases found its disapproval of Sir Barnes Peacock, C.J in R v Khairulla [(1866 ) 6.W.R (Cr) 21 (FB)] wherein the Court held that the English law of evidence did not apply to the courts in the moffusil and hence in a trial of person on charges of crime before a moffusil court, his wife was competent to testify for and against him. The learned Chief Justice observed:
“It is a general rule of English law, subject to certain exceptions, that in criminal cases, husband and wife are not competent to give evidence for or against each other. But the English law is not the law of the mufassil………” 17.4 Sir James Fitzjames Stephen of the Benthamian school, too had advocated strongly in favour spousal competency to be mutual witnesses.
Here it may be of interest to record that Court of the Foujdaree Adawlut constituted by the East India Company issued a circular in March, 1830, [See: 'Law of Evidence applicable to the Courts of the East India Company', (6th Edition, J. Higginbotham, Madras, 1867, page 41)] to the effect that the courts in the mofussil were permitted to receive evidence of a wife against 27/38 http://www.judis.nic.in S.A.No.120 of 2008 her husband. This is founded on the realisation by the English that the husband and wife were not treated as one person in India. Another reason for this is because the law in England did not recogise plurality of wives, which however, was then in vogue in this country.
17.5 When the Select Committee was constituted to codify the Evidence Act, it appears to have drawn inspiration from this judgment of Chief Justice Peacock to extend the competency of spouses to criminal cases too. Section 120, thus declared spouses to be competent witnesses in both civil and criminal cases. It however, preserved the public policy justification attached to privileged communications between spouses in Sec.122 of the Evidence Act. And, it may be of interest to know that for a corresponding change, the English law waited for another twenty-five years, till the passing of the Criminal Evidence Act, 1898.
17.6 And, across the Atlantic too, the common law rule was finally jettisoned by the United States Supreme Court in Funk v. United States [290 US 371 (1933)], where Justice Sutherland observes:
“14.The rules of the common law which disqualified as witnesses 28/38 http://www.judis.nic.in S.A.No.120 of 2008 persons having an interest long since in the main have been abolished both in England and in this country; and what was once regarded as a sufficient ground for excluding the testimony of such persons altogether has come to be uniformly and more sensibly regarded as affecting the credit of the witness only. Whatever was the danger that an interested witness would not speak the truth and the danger never was as great as claimed—its effect has been minimized almost to the vanishing point by the test of cross-examination, the increased intelligence of jurors, and perhaps other circumstances. The modern rule which has removed the disqualification from persons accused of crime gradually came into force after the middle of the last century, and is to-day universally accepted. The exclusion of the husband or wife is said by this court to be based upon his or her interest in the event. Jin Fuey Moy v. United States, supra. And whether by this is meant a practical interest in the result of the prosecution or merely a sentimental interest because of the marital relationship makes little difference. In either case, a refusal to permit the wife upon the ground of interest to testify in behalf of her husband, while permitting him, who has the greater interest, to testify for himself, presents a manifest incongruity.
15. Nor can the exclusion of the wife's testimony, in the face of the broad and liberal extension of the rules in respect of the competency of witnesses generally, be any longer justified, if it ever was justified, on any ground of public policy. It has been said that to admit such testimony is against public policy because it 29/38 http://www.judis.nic.in S.A.No.120 of 2008 would endanger the harmony and confidence of marital relations, and, moreover, would subject the witness to the temptation to commit perjury. Modern legislation, in making either spouse competent to testify in behalf of the other in criminal cases, has definitely rejected these notions, and in the light of such legislation and of modern thought they seem to be altogether fanciful. The public policy of one generation may not, under changed conditions, be the public policy of another. Patton v.
United States, 281 U.S. 276, 306, 50 S.Ct. 253, 74 L.Ed. 854, 70 A.L.R. 263.
16. The fundamental basis upon which all rules of evidence must rest—if they are to rest upon reason—is their adaptation to the successful development of the truth. And, since experience is of all teachers the most dependable, and since experience also is a continuous process, it follows that a rule of evidence at one time thought necessary to the ascertainment of truth should yield to the experience of a succeeding generation whenever that experience has clearly demonstrated the fallacy or unwisdom of the old rule.”
18. Since its origination in the common law as an aspect of public policy with its prospects for perjury, the spousal disqualification and the denial of spousal competency to be mutual witnesses, has crawled through many amusing instances during its evolutionary process. It is a transition between 30/38 http://www.judis.nic.in S.A.No.120 of 2008 conceptual extremes. The shift reflected the changing judicial thought- process which the US Supreme Court in Funk Vs United States has pointed as the quest for truth replacing the 'fallacy or unwisdom of the old rule'. Does it not then resonate the call of the judicial conscience to seek the best evidence, for hearsay is too weak a strand of evidence to support truth? Spousal Competency: Unintended Consequence?
19.1 What brought about the change? It is now evidently fathomable that it is borne of a realisation of the illogicality of shutting the best evidence on grounds of irrational public policy. And, does not Sec.120, and it recognizing spouses as mutually competent witnesses, then require a contextual understanding?
19.2 However, the operational sweep which the ordinary reading of the plain words in Sec.120 suggest it as enabling the sacrifice of that very ground which triggered this change: compromising with the best evidence and unscreening the hearsay. On the face of it Sec.120 does not recognise the dichotomy between personal qualification of the spouses to be witnesses in each other's cause, and their functional competency to be able to speak 31/38 http://www.judis.nic.in S.A.No.120 of 2008 to best evidence. At no point of time during its movement from no spousal- qualification to absolute qualification, was there any debate on the permissibility or advisability of accommodating hearsay. It would have been appropriate if during the legislative exercise, limiting the interpretative and operative sweep of Sec.120 was contemplated to ensure the retention of the functional competency of witness, in the sense such spouse-witness can only speak to those facts which are perceived by his/her senses, or about a mental state of which he/she is conscious of. Sec.120 in the present form is seen as providing an unintended opportunity to breach the best evidence rule, and has now enabled a hearsay evidence to be part of the evidence.
20. As outlined in an earlier paragraph, if at all there can be a justification today for unrestricted spousal competency of one spouse to testify for a litigant-spouse, it can only be on a belief that a man and woman would withhold nothing from each other. However, in contemporary times, the matrimonial landscape appears to have become far too slippery for the spouses to even balance themselves within it to sustain the belief (which may pass for a presumption), that a man and a woman would share total transparency between them. Instantly, it will amuse a right thinking social 32/38 http://www.judis.nic.in S.A.No.120 of 2008 observers of the present times, since the respect shared within the institution of marriage shakes the basis of its validity, and challenges the contemporary relevance of this presupposition, and mocks at the continued statutory patronage granted to a spouse under Sec.120 of the Evidence Act, to speak to, what essentially is hearsay.
The balancing Act:
21. For close to a century and a half, Courts in India have generally accepted the view that a spouse is a competent witness for the other spouse, though without raising a pointed issue on the possibility of Sec.120 breaching best evidence rule. See: T. Rangaswami. v. T. Aravindammal [AIR 1957 Madras 243], K. Saroja Vs Valliammal Ammal [1996-II-MLJ 199], T.J Ponnen v M.C Varghese [AIR 1967 Kerala 228], Kurella Naga Druva Vudaya Bhaskar Rao v Galla Jankiamma [(2009) 6 ALT 164], Muralidhar Pinjani v Sheela Tandon of [(2007) 3 MP LJ 506), Sant Footwear v Daya Bindra [2014 AIR CC 1154] to mention a few. A harmonious and a literal interpretation of Sec.120 with the rest of the provisions of the Evidence can only lead to a position that the spousal competency granted under it is unrestricted, and this has stabilized firmly as 33/38 http://www.judis.nic.in S.A.No.120 of 2008 the generally accepted view. However, the need for subjecting the spousal competence under Sec.120 to the rule of best evidence requires serious consideration, and it cannot be ignored. Even the Law Commission in its 69th Report did not discuss this point. Now the legislature may have to revisit the provision and the prudence of closing the gate for hearsay, something J.B. Norton had suggested in his 1867 treatise, though in a slightly different context.
22. Of the authorities cited on either side, the one in Munni Devi Vs. Sona Devi [CDJ 2014 All HC 1278], relied on by the appellant's counsel appear to come close to the issue, but it did not go the entire distance as the facts of that case appeared not to require an exposition on the point. In this judgement the Allahabad High Court has relied on the ratio in Janki Vashdeo Dhojwani & another Vs Indusind bank Ltd., & Others [(2005)2 SCC 217]. The argument before the Hon'ble Supreme Court in that case was more on the competency of the husband to depose for his wife, not within the meaning of Sec.120 of the Evidence Act, but as the power of attorney of the wife. And that case is set in a different factual setting which included an earlier round of litigation before the Hon'ble Supreme Court, 34/38 http://www.judis.nic.in S.A.No.120 of 2008 where the Court had directed the husband not to depose for the wife. The Court there has held that a Power of Attorney is competent to speak only to those facts to which he is a party or privy in his capacity as the power of attorney, and to no other. It may have to be stated that the Hon'ble Supreme court here, indeed has touched upon the competency of the spouse to depose for the other spouse but only in his capacity as the power of attorney and not within the meaning of Sec.120.
23. Now if in terms of Sec.106 of the Evidence Act, (where the burden to prove a fact is cast on that person) a litigant-spouse who has the exclusive knowledge of that fact must be examined? When Sec.120, with its unlimited qualification, has granted functional competency to a spouse to speak to hearsay, necessarily it takes within its folds all the facts that also falls within the exclusive knowledge of the other spouse. This is perhaps the most harmonious way of integrating what apparently are conflicting provisions, to fit into a common denominator.
24. Now, one circumstance that may still require the litigant-spouse to testify for discharging the burden or the onus, as the case may be, cast on 35/38 http://www.judis.nic.in S.A.No.120 of 2008 him/her is, when the other spouse who initially steps into the witness box on behalf of the litigant-spouse makes a specific statement as part of the testimony, that the former does not have any specific knowledge about any particular fact, and that the said fact is only within the knowledge of the litigant-spouse. It is in those circumstances, it will become obligatory for a litigant-spouse to testify, and if any abstinence is shown then adverse inference can well be drawn, since the best evidence rule is breached. It may have to be underscored here, the facts that are so required to be spoken must be those that impact the cause of action directly and not too remotely, which would necessarily have to be assessed on the basis of the facts of each particular case.
25. Reverting back to the arguments of the learned counsel for the defendants/appellants, if only his argument has to be sustained, then he ought to demonstrate that the husband of the plaintiff as P.W.1 has deposed in his cross examination that any of the fact, which according to the defendants is critical to prove their defence, was only within the knowledge of the plaintiff. Nowhere in the entire cross examination of P.W.1 this Court could find any such statement. It may be that the defendants might have 36/38 http://www.judis.nic.in S.A.No.120 of 2008 issued earlier letters or complaints such as in Ext.A2 or A-4, are chiefly self serving and they by themselves are inadequate to rebut the presumption under Sec.118(a) of the Negotiable Instruments Act.
26. In the context of what has been discussed, this Court does not find any merit to hold the substantial question in favour of the defendants/appellants and it fails. The appeal is hence dismissed. The judgment and decree dated 31.07.2006 passed by the Principal District Court, Villupuram in A.S.No.34 of 2005 is hereby confirmed. Given the nature of the substantial question which engaged this court, no cost is ordered. Consequently, connected miscellaneous petition is closed.
30.11.2020 Index : Yes/No Internet : Yes/No ds / tsg N.SESHSAYEE.J., 37/38 http://www.judis.nic.in S.A.No.120 of 2008 ds Pre-delivery Judgment in S.A.No.120 of 2008 30.11.2020 38/38 http://www.judis.nic.in