Proceedings under the Indian Divorce Act.-(a). Act IV of 1869 restricts the competency of husbands and wives to suits in which the parties offer themselves as witnesses or verify their cases by affidavit and to suits by wives praying for dissolution of marriage on the ground of adultery coupled with cruelty, or coupled with desertion without reasonable cause. A general rule of competence is laid down by the present section without any express reference to matrimonial proceedings. But it seems that the rule as to the parties to matrimonial cases being competent and compellable to give evidence is more restricted here than in England. Vide sections 51 and 52 of Act IV of 1869.

(b). In the case of De Bretton v. De Bretton, I. L. R. 4 All. 49, A was made co-respondent on the application of the respondent's counsel. A was afterwards examined under subpoena as a witness for the petitioner, who asked for the dissolution of his marriage on the ground of adultery. A was sworn without objection, and was asked whether he had had sexual intercourse with the respondent. The Court in reply to his inquiry told him that he was bound to answer this question, and he answered it in the affirmative. He would not have answered it, if he had been aware that he might have declined. Subsequently, at the final hearing it was contended that inasmuch as he had not offered himself as a witness under sec. 51 of Act IV of 1869, his evidence was not receivable. It was held that he had not "offered" to give evidence within the meaning of sec. 51, and that his answer to the particular question was not admissible. The special provisions contained in secs. 51 and 52 of the Divorce Act could not be treated as having been practically repealed by the provision of this section, and that of sec. 132 of

the Act.

Criminal Proceedings.-The rule as to the competence of husband and wife as a witness in criminal cases is a re-enactment of the law in force in this country as laid down by Sir B. Peacock in Queen v. Kharrulla, 6 W. R. (F. B.) Cr. 21. The Chief Justice said: "Two questions have been referred in this case: 1st-Whether, upon a trial in the muffasil of a person charged with an offence, his wife is competent to give evidence for or against him? 2nd-Whether, upon a trial in the muffasil of several persons charged jointly with an offence, the wife of one of them is competent to give evidence for or against the others? I am of opinion that both of these questions must be answered in the affirmative. It is a general rule of English law, subject to certain exceptions, that in criminal cases, a husband and wife are not competent to give evidence for or against each other. But the English law is not the law of the muffasil. ... It

is clear that the English criminal law was not the criminal law of the muffasil, and that the English Law of Evidence was never extended by any regulation of Government to criminal trials there."

Judges and Magistrates.

121. No Judge or Magistrate shall, except upon the special order of some Court to which he is subordinate, be compelled to answer any questions as to his own conduct in Court as such Judge or Magistrate, or as to anything which came to his knowledge in Court as such Judge or Magistrate; but he may be examined as to other matters which occurred in his presence whilst he was so acting.

Illustrations.

(a). A, on his trial before the Court of Session, says that a deposition was improperly taken by B, the Magistrate. B cannot be compelled to answer questions as to this, except upon the special order of a superior Court.

(b). A is accused before the Court of Session of having given false evidence before B, a Magistrate. B cannot be asked what A said, except upon the special order of the superior Court.

(c). A is accused before the Court of Session of attempting to murder a Police-officer whilst on his trial before B, a Sessions Judge. B may be examined as to what occurred.

Extent of the Privilege.-The privilege given by this section is the privilege of the witness, ie., of the Judge or Magistrate of whom the question is asked. If he waives such privilege or does not object to answer the question, it does not lie in the mouth of any other person to assert the privilege.* It extends only to his own conduct in court as such Judge or Magistrate, or to anything which came to his knowledge in court as such Judge or Magistrate ; and though he may be examined as to other matters which occurred in his presence whilst he was so acting, yet, as a rule, it would not be quite right or politic to examine him except under very peculiar circumstances. Where it becomes necessary for a Judge to give evidence, the proper course, says Mr. Taylor, "appears to be that he

* Vule Empress v. Chidda Khan, I. L. R. 3 All. (F. B.) 573.

should leave the Bench and take no further judicial part in the trial, because he can hardly be deemed capable of impartially deciding on the admissibility of his own testimony, or of weighing it against that of another."

Judge as a Witness.-(a). In the case of Queen v. Bholanath Sen, I. L. R. 2 Cal. 23, Macpherson and Morris JJ. remarked as follows: "Without saying that it is illegal for a Magistrate to give evidence in the witness-box in a case with which he is dealing judicially, it clearly is, on general principles, most undesirable that a Judge should be examined as a witness in a case which he himself is trying, if such a contingency can possibly be avoided." (The case of Queen v. Hiralol Das, 8 B. L. R. 422, was referred to).

(b). In the case of Empress v. Donnelly, I. L. R. 2 Cal. 405, Markby J., after reviewing the cases of Queen v. Mukta Sing, 13 W. R. Cr. 60, and Queen v. Tarapersaud Bhattacharji, N. A. Rep. 1857, Pt. II, p. 83, said: "In the absence, therefore, of any authority for the position that a sole Judge of law and fact may give evidence, and then decide a case in which he has been witness, I refuse to give any countenance to what appears to me to be a most objectionable proceeding. Everyone admits that it is highly objectionable for a Judge to give evidence even when there are other Judges besides himself. For my own part, I consider these objections so formidable that I would gladly see the practice of calling a Judge as a witness abolished in all cases. But these objections are greatly increased when the Judge who testifies is a sole Judge. The case is entirely in his hands. He has no one to restrain, correct, or check him. If he gives evidence upon any matter of importance, the party against whom his evidence tells could not venture to test his credibility either by cross-examination, or contradict it by other testimony. I need say nothing of the indecency of such a proceeding; no one dare venture to defend it. The Judge would, therefore, give his evidence without the usual safeguards against false testimony -a position which has been over and over again repudiated. . . . I am, therefore, of opinion that a Judge who is a sole Judge of law and fact cannot give his own evidence, and then proceed to a decision of the case in which that evidence is given. Mr. Prinsep J. said, "that I consider that the authorities quoted in the judgment of Mr. Justice Norman in Queen v. Mukha Singh are conclusive, that one who is sitting as a sole Judge is not competent also to be a witness. No case has been quoted in which this has ever occurred, and the inexpediency of such a rule as well as its possible evil results are too obvious to call for explanation."

(c). A person having to exercise judicial functions may give evidence in a case pending before him, when such evidence can and must be submitted to the independent judgment of other persons, exercising similar judicial functions sitting with him at the same time. A Sessions Judge is a competent witness, and the giving of evidence by him does not preclude him from dealing judicially with the evidence of which his own forms a part-Queen v. Mukta Singh, 13 W. R. Cr. 60. This case was decided upon the authority of English cases.

Importing knowledge in the Judgment without giving Evidence. (a). A Judge cannot give evidence in a case merely by making a statement of fact in his judgment. If he intends the Courts to act upon his statement, he is bound to make that statement in the same manner as any other witness-Mrs. Rosesseau v. Mrs. Pinto, 7 W. R. 190. Vide also Kishor Singh v. Ganesh Mukerji, 9

W. R. 252.

(b). A Judge cannot, without giving evidence as a witness, import into a case his own knowledge of particular facts, as his means of knowledge will not then be capable of being tested-Hurpershad v. Sheo Doyal, 3 Cowell's I. A. 259.

Arbitrator.-An arbitrator may be called as a witness in an action to enforce his award, and may be asked what passed before him, and what matters were presented to him for consideration, but not what passed in his own mind when exercising his discretionary powers as to the matters submitted to him-Duke of Buccleuch v. Metropolitan Board of Works, L. R. 5 H. L. 418.

It seems that an arbitrator would not come within the rule laid down by this section.

Assessor.-In the case of Swamirao v. The Collector of Dharwar, I. L. R. 17 Bom. 299, it was held that a person who is appointed an assessor under sec. 19 of the Land Acquisition Act (X of 1870) performs quasi-judicial functions, and is, therefore, incompetent to testify as a witness in the same proceedings. Jardine J. said : Having regard to the legal effect of an assessor's opinion, we think the views expressed in Empress v. Donnelly, I. L. R. 2 Cal. 405, on the course to be adopted when a sole Judge has testified as a witness, ought to influence this Court in its disposal of the present case, if there were any doubt."

122. No person who is or has been married, shall be compelled to disclose any communication made to him during

Communications during marriage.

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.

Extent of the Rule.--The protection is not confined to cases where the communication sought to be given in evidence is of a strictly confidential character, but the seal of the law is placed upon all communications of whatever nature which pass between husband and wife. It extends also to cases in which the interests of strangers are solely involved, as well as to those in which the husband or wife is a party on the record. No witness need disclose a communication made to him or her by wife or husband during marriage, nor, without the permission of the wife or husband, can a witness disclose any such communication except in the two classes of cases specified. The privilege extends to communications made during marriage, although the marriage has been dissolved; but not to communications made before marriage, although the marriage is still existing when the evidence is tendered. The exception in the case of a prosecution of one married person for an offence against the other is grounded on the common law English rule, which, in such cases, always made the husband or wife a competent witness.*

Evidence as to

123. No one shall be permitted to give any evidence derived from unpublished affairs of State. official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.

Affairs of State.-Affairs of State include any matter of a public nature with which the Government is concerned.

The laws of every country suppress much evidence that would be relevant or even conclusive, where its reception would involve the

* Vide Taylor, secs. 909, 910 and 1371.