Spouses can testify on behalf of each other in civil trials: Kerala High Court

The Kerala High Court recently held that spouses are allowed to testify on behalf of each other during civil case trial proceedings, as per Section 120 of the Indian Evidence Act [Smitha v Anil Kumar & Ors]..Justice Kauser Edappagath observed that under Section 120 of the Indian Evidence Act, a husband and wife are competent to provide evidence not only within their knowledge but also within the knowledge of their spouse."(On reading Section 120), it is clear that a non-litigating spouse is a competent witness for the other spouse who litigates. Section 120 permits the husband to give evidence in place and instead of his wife and vice versa even in the absence of a written authority or power of attorney. Such a witness is entitled to depose not only the facts within his/her knowledge but also within the knowledge of his/her spouse," the June 18 ruling stated. .The Court was dealing with an application by a woman who had filed a civil suit, pending before a trial court. During the trial, the woman (plaintiff before the trial court) had sought permission to have her husband testify or adduce evidence on her behalf. The trial court, however, denied permission for this. The trial court opined that it was not possible to allow any person to give evidence on another's behalf. The trial court added that the husband could only be examined as the plaintiff's witness. The plaintiff challenged this denial of permission through an application filed before the High Court. .The counsel representing the plaintiff 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 and could provide crucial testimony relevant to the case..To decide on 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 the general procedural rules, and allows non-litigating spouses to testify in place of their litigating spouses, even without needing to execute a power of attorney.The High Court, therefore, disagreed with the trial court's finding on this aspect and set aside the order rejecting the plaintiff's request to have her husband testify on her behalf. "The finding of the trial court in the impugned order that the husband cannot give evidence on behalf of the plaintiff/wife and that he can only be cited and examined as the plaintiff’s witness cannot be justified. The trial court passed the impugned order without adverting to 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..[Read Judgment]