The Kerala High Court recently ruled that spouses are allowed to testify on behalf of each other in civil trial proceedings, as per Section 120 of the Indian Evidence Act [Smitha v Anil Kumar & Ors].
Justice Kauser Edappagath noted that under Section 120 of the Indian Evidence Act, both husband and wife are competent to provide evidence not only within their knowledge but also within the knowledge of their spouse.
“Upon reading Section 120, it is clear that a non-litigating spouse is a competent witness for their litigating spouse. Section 120 permits the husband to give evidence in place of his wife and vice versa, even without a written authority or power of attorney. Such a witness is entitled to depose facts within their own knowledge as well as those within the knowledge of their spouse,” the June 18 ruling stated.
The Court was addressing an application by a woman who had filed a civil suit pending before a trial court.
During the trial, the plaintiff sought permission for her husband to testify or present evidence on her behalf.
The trial court denied this request, stating that it was not permissible for any person to give evidence on another’s behalf, and that the husband could only be examined as the plaintiff’s witness.
The plaintiff challenged this denial through an application filed before the High Court.
The plaintiff’s counsel argued that the trial court’s decision was flawed, as it ignored Section 120 of the Indian Evidence Act, which explicitly allows spouses to testify for each other in civil proceedings.
The High Court was informed that the husband was a key witness who could provide crucial testimony relevant to the case.
To resolve the matter, the High Court examined Section 120 of the Indian Evidence Act, which states, “In all civil proceedings, the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses …”
The High Court observed that this provision overrides general procedural rules, allowing non-litigating spouses to testify in place of their litigating spouses without needing to execute a power of attorney.
Therefore, the High Court disagreed with the trial court’s decision and set aside the order rejecting the plaintiff’s request to have her husband testify on her behalf.
“The trial court’s finding that the husband cannot give evidence on behalf of the plaintiff/wife and that he can only be examined as the plaintiff’s witness cannot be justified. The trial court passed the impugned order without considering Section 120 of the Indian Evidence Act. Accordingly, it is set aside,” the High Court ruled.
The plaintiff was represented by advocates Vinod Madhavan, MV Bose, Nisha Bose, and Saniya CV.
