1. O.S. 165/78 on the file of the First Addl. Subordinate Judge, Visakhapatnam was between one Alapati Suryakantana as plaintiff and the present revision petitioner as the defendant. The dispute related to some properties. While Suryakantam was deposing as P.W. 1, the defendant was confronting her with Exs. B-3 to B-5, letters allegedly written by plaintiff's husband to the plaintiff. It was argued before the Sub-Judge that they are inadmissible is evidence under Section 122 of the Evidence Act. The learned Sub-Judge upheld the objection raised by the plaintiff and held that they are inadmissible and he therefore directed those letters to be excluded from consideration. The legality of that order is questioned is this revision.
2. Section 122 of the Evidence Act reads as under:
'No person, who is or has been married, shall be compelled to disclose any communication mode 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.'
In Queen Empress v. Donaghue, (1899) ILR 22 Mad 1, the question arose whether a communication sent by the accused to his wife which was recovered by the police during investigation while making a search could be proved by the prosecution. It was held that it can be relied upon by the prosecution as tile wife was not being examined in the case and was neither compelled to disclose or being permitted to disclose. In Ram-cbandra Shankarshet v. Emperor. AIR 1933 Bom 153, the husband was prosecuted for an offence under Section 302, I.P.C. At the time the offence was committed Lilavati, one of his wives was present. The prosecution wanted to prove some statements made by the accused to his wife and this the Court did not permit the prosecution to prove through the evidence of Lilavati. In Appu v. State, : AIR1971Mad194 , an extra judicial confession made by the accused to his wife P.W. 1 in the presence of P. Ws. 2 to 4 was sought to be proved by the prosecution. It was held that the said confession cannot be proved through P.W. 1, but it can be proved through P.Ws. 2 to 4. In M.C. Verghese v. T.J. Ponnan, : 1970CriLJ1651 , one Rathi, daughter of Verghese was married to one Ponnan. Ponnan wrote some letters to Rathi which according to Verghese were defamatory. Verghese filed those letters and objection was taken that those letters are inadmissible in evidence. The Supreme Court held :
'Section 122 of the Evidence Act only prevents disclosure in giving evidence in Court of the communication made by the husband to the wife. If Rathi appears in the witness box to give evidence about the communications made to her by her husband, prima facie, the communications may not be permitted to be deposed to or disclosed unless Ponnan consents. That does Dot, however, mean that no other evidence which is not barred under Section 122 of the Evidence Act or other provisions of the Act can be given.'
3. Mr. P.L.N. Sarma, the learned Counsel for the respondent, relies on the first sentence in the above observation and submits that Section 122 of the Evidence Act bars completely such communications. In my view entire statement of law has to be read as a whole and not in the disjointed fashion as has been attempted at. It is no doubt true that the plaintiff cannot be asked about Exs. B-3 to B-5 it is a different thing to say that Exs. B-3 to B-5 are totally inadmissible in evidence and have to be excluded from consideration. In making the order in that fashion the learned Subordinate Judge has committed an irregularity which requires to be cured under Section 115 of the Civil P.C. as to allow that order to remain would occasion a failure of justice or cause irreparable injury to the defendant who is relying on the contents of Exs. B-3 to B-5 as supporting bis case.
4. The impugned order is accordingly modified to the extent indicated above and the learned Subordinate Judge is directed not to permit the cross-examining Counsel to confront the plaintiff with Exs. B-3 to B-5 but allow the revisions petitioner to: prove Exs. B-3 to B-5 by such other means as are available to him. The civil revision, petition is allowed accordingly. Both the! parties are directed to bear their respective costs.