Section 126

Historically, under old English common-law traditions, spouses were often treated as one legal person, so a husband or wife could not testify for or against the other — the fear was bias or coercion. The Indian Evidence Act, 1872 (Section 120, now reproduced as Section 126 of the Bharatiya Sakshya Adhiniyam, 2023) rejected this rigid rule and declared spouses legally 'competent' witnesses, meaning courts cannot refuse to hear their testimony simply because of the marital relationship. This reform recognised that a spouse is often the person with the most direct knowledge of relevant facts, especially in domestic or family-related disputes and offences.

Courts have consistently distinguished 'competency' (who is allowed to testify) from 'compellability' and 'privilege' (which communications must be kept confidential, covered separately under Section 128 of the 2023 Act, earlier Section 122 of the 1872 Act). Judicial decisions have clarified that while a spouse can testify, confidential marital communications remain protected unless both parties consent or an exception applies (such as one spouse being tried for an offence against the other). Courts have used this provision to admit spousal testimony in cases of domestic violence, dowry harassment, and matrimonial disputes, while still respecting the separate rule on privileged communications.

• Myth: A husband or wife can never testify against their spouse in court.
  Fact: This section makes spouses competent witnesses; whether specific confidential communications can be revealed is a separate rule (privilege), not covered here.
• Myth: This section forces a spouse to testify against their partner.
  Fact: It only makes them a competent (allowed) witness; whether they can be compelled to testify may depend on other procedural rules and exceptions.