Communications during marriage
Section 128 of the Bharatiya Sakshya Adhiniyam, 2023 deals with 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; The Act came into force on 01 Jul 2024.
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
Section 128, The Bharatiya Sakshya Adhiniyam, 2023 (Act 47 of 2023).
Replaces a provision of the Indian Evidence Act
IEA 122 Communications during marriage Text carried over almost unchanged 100%
Measured by comparing the text of the two provisions, not taken from an official correspondence table — there is no machine-readable one. See both texts side by side before relying on it.
Both regimes are live. The repealed enactment still governs what happened while it was in force. We never redirect one to the other.
Related judgements & precedents
These are some judgments that construed this section, and hold precedence value. They hold authority on how to read, interpret and use this section.
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Supriyo @ Supriya Chakraborty vs Union Of India
Decided under Indian Evidence Act 122, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
The Supreme Court held that while there is no fundamental right to marry under the Indian Constitution, LGBTQ+ persons have a constitutional right to enter into abiding cohabitational relationships grounded in Articles 14, 15, 19, 21, and 25. The Special Marriage Act 1954 cannot be read down to permit same-sex marriages due to semantic impossibilities and interconnected gendered provisions. The Court recognized that existing laws create indirect discriminatory impact on queer couples by denying them access to spousal benefits in employment, succession, adoption, and taxation. The Court declined to issue directions for marriage equality, finding such matters require comprehensive parliamentary action. Instead, the Court directed the Union Government to constitute a high-powered committee to examine the discriminatory impact of existing laws and regulations on same-sex couples and recommend appropriate remedies. Transgender persons in heterosexual relationships can marry under existing laws through harmonious interpretation with the Transgender Persons Act.
On this section: Provides privilege for marital communications; demonstrates legal consequences of marriage recognition
The holding above is the ratio decidendi as extracted from the judgment by eCourts India, reproduced unaltered — it is a rendering of the court's reasoning, not a substitute for its words. Read the order itself before relying on it.
Judgments citing this section
These may be obiter dicta or a precedent, for you to study. These are the judgments where this section is quoted.
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… Communication between a husband and wife is private and is protected under the Indian Evidence Act, 1872 (Bharatiya Sakshya Adhiniyam, 2023). Such communication during marriage is considered as privileged communication under Section 122 of the Indian Evidence Act, 1872 (Section 128 of Bharatiya Sakshya Adhiniyam, 2023). However, in the present case, the appellant-husband recorded the communication to prove the abusive language used by the respondent wife. 20. Wife on the other hand gone to the extent of ruining the career of the appellant by making complaints against the appellant-husband, …
Questions about Section 128
What have the courts held on Section 128 of the Bharatiya Sakshya Adhiniyam?
Supriyo @ Supriya Chakraborty vs Union Of India (17 Oct 2023) is the leading judgment on this section among those set out below, though it was decided under IEA 122, which this section replaced -- the court never mentioned this Act: Provides privilege for marital communications; demonstrates legal consequences of marriage recognition.
How do I find court cases under Section 128 of the Bharatiya Sakshya Adhiniyam?
In judgments and charge sheets this section is written several ways, and each form finds a different set of orders. These search the full text of every order eCourtsIndia holds, best matches first: BSA 128, section 128 BSA, section 128 of the Bharatiya Sakshya Adhiniyam. People searching for it also type scouts 128. Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome. 1 reported judgment on this section is set out on this page, beginning with Supriyo @ Supriya Chakraborty vs Union Of India (17 Oct 2023).
What should I read with Section 128 of the Bharatiya Sakshya Adhiniyam, and has it changed?
It carries forward IEA 122 (Communications during marriage), so the judgments decided under that provision are the case law on this one.
When did Section 128 of the Bharatiya Sakshya Adhiniyam come into force?
Section 128 of the Bharatiya Sakshya Adhiniyam, cited as BSA 128, came into force on 01 Jul 2024, having been enacted on 25 Dec 2023. It is in force as at the date shown on this page.
Other sections of this Act
- 26. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant1128 words
- 12. Facts showing existence of state of mind, or of body or bodily feeling1076 words
- 95. Exclusion of evidence of oral agreement815 words
- 2. Definitions794 words
- 6. Motive, preparation and previous or subsequent conduct773 words
- 63. Admissibility of electronic records764 words
Source and method. Compiled from the enactments of Parliament and of the State legislatures as published on India Code, and republished together with commentary and other original matter under section 52(1)(q)(ii) of the Copyright Act, 1957. Structured, cross-referenced and maintained by eCourtsIndia. Text as in force on 15 Oct 2026. This page is not a substitute for legal advice.