Introduction
Two High Courts, within a year of each other, reached the same striking conclusion from the same short provision: a husband or wife can step into the witness box and testify in place of their litigating spouse — no power of attorney, no separate authorisation, just the fact of marriage itself. One court grounded that conclusion in ordinary statutory interpretation. The other reached for Hindu mythology to explain why.
Section 126 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) continues this run through the closing sections of Chapter IX ("Of Witnesses"), following Section 127 on judicial privilege examined in the previous article. This piece explains why this provision exists at all, two recent High Court rulings applying it in a way that surprises many practitioners, and how it differs from the marital-communications privilege covered two articles back in this run.
126. Competency of husband and wife as witnesses in certain cases.
(1) In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses.
(2) In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness.
Section 126 BSA and Section 120 IEA: Same Substance, Restructured Format
Section 126 carries over Section 120 of the Indian Evidence Act, 1872 with identical substance, confirmed across independent bare-act sources. The one difference is structural rather than textual: the BSA splits the single flowing 1872 sentence into two numbered subsections — civil proceedings in subsection (1), criminal proceedings in subsection (2) — without altering a single word of the operative language.
| Aspect | Section 120, Indian Evidence Act, 1872 | Section 126, BSA, 2023 |
|---|---|---|
| Structure | One continuous sentence | Split into numbered subsections (1) civil, (2) criminal |
| Substantive text | Parties and spouses competent in civil suits; spouse of accused competent in criminal proceedings | Identical wording, unchanged |
| Governing precedent | Smitha v. Anil Kumar (2024) and Kishan Chand v. Balbir Singh (2025) | Continues to bind courts applying Section 126, since text is unchanged |
Reversing an Old Disqualification
This provision answers a question that sounds almost too basic to need a statute — of course a spouse can testify — but historically, it was not obvious at all. Older common law traditions treated husband and wife as legally merged into a single person, which meant neither could testify for or against the other; a party's own spouse was automatically disqualified as a witness in that party's case, and often barred from testifying against a spouse in a criminal matter too. Section 126 (and Section 120 IEA before it) exists specifically to remove that old disqualification, establishing spousal competency as a general rule in Indian evidence law rather than an exception requiring special justification.
An Older Confirmation of the Same Principle
The competency rule itself is not new law, even if its 2024-2025 application is. As early as Shyam Singh v. Shaiwalini Ghosh (1947), the Calcutta High Court held that husband and wife are both competent witnesses against each other in civil and criminal cases alike — confirming, decades before the recent High Court rulings, that Section 120's removal of the old spousal disqualification was to be read broadly rather than narrowly.
The 2024-2025 Development: Spouses Testifying In Place Of Each Other
Two recent High Court decisions have pushed the practical meaning of Section 120/126 further than a plain reading might suggest — from "a spouse may testify" to "a spouse may testify instead of the other spouse, without any separate authorisation."
In Smitha v. Anil Kumar, 2024:KER:43463 (26 June 2024), the Kerala High Court, per Justice Kauser Edappagath, set aside a trial court order that had refused to let a litigating wife's husband testify on her behalf without a power of attorney. The Court held that Section 120 "permits the husband to give evidence in place and instead of his wife," and that a non-litigating spouse is a competent witness for the litigating spouse — able to depose not only to facts within their own personal knowledge, but also to facts within their spouse's knowledge, without any formal written authorisation being required first.
Less than a year later, in Kishan Chand (through LRs) and Others v. Balbir Singh and Others, 2025:PHHC:043213 (7 April 2025), the Punjab and Haryana High Court, per Justice Deepak Gupta, reached the identical conclusion in a specific-performance property dispute — and grounded it in a striking cultural rationale. The Court observed that Section 120 "is enunciated on the well-founded Indian mythology, as per which husband and wife are believed to be one person and not separate. It is in consonance with the concept of Ardha Nareshwar" — the Hindu iconographic representation of Shiva and Parvati as a single, half-male, half-female form. The judgment reaffirmed that a non-litigant spouse is a competent witness for the other spouse in litigation.
Worked Example One: Civil Litigation
A woman suing over a disputed land sale is unable to personally attend every stage of a lengthy trial. Following Smitha v. Anil Kumar, her husband — who is not himself a party — can testify on her behalf under Section 126(1), deposing to facts within his own knowledge of the transaction as well as facts within his wife's knowledge, without the couple needing to first execute a power of attorney authorising him to do so.
Worked Example Two: Criminal Proceedings
A man stands trial on a criminal charge unrelated to his marriage. Under Section 126(2), his wife is a competent witness in that proceeding — the law does not disqualify her from testifying merely because of the marital relationship. Whether she can additionally be compelled to testify against him, as opposed to being merely permitted to if willing, is a related but distinct question this section's competency rule does not itself resolve — competency establishes that she is allowed to take the stand, not that she can be forced onto it.
Why This Matters in Practice
For civil litigants, the practical effect of Smitha and Kishan Chand is real convenience — a spouse can genuinely stand in for a party who cannot attend, testify to shared knowledge of the relevant facts, and do so without the delay or expense of formal authorisation paperwork. For criminal defence and prosecution alike, Section 126(2) confirms a spouse is never automatically disqualified as a witness purely because of the marriage — but the separate, narrower privilege in Section 128 remains available to protect specific confidential communications even where general competency is not in doubt.
Key Takeaways
- Section 126 BSA carries over Section 120 IEA with identical substance, only reformatting the single sentence into two numbered subsections.
- The provision reverses an old common law disqualification that treated spouses as incompetent to testify for or against each other.
- Smitha v. Anil Kumar (Kerala HC, 2024) and Kishan Chand v. Balbir Singh (Punjab & Haryana HC, 2025) both confirm a spouse can testify in place of the other litigating spouse, without a power of attorney.
- The Punjab and Haryana High Court grounded this rule in the "Ardha Nareshwar" concept of husband and wife as a single unified entity.
- Competency (this section) and privilege over specific communications (Section 128) are distinct questions — being a competent witness does not remove the separate protection Section 128 gives to confidential marital communications.
Conclusion
Section 126 looks like a technical footnote until its practical reach is fully traced — from simply removing an old disqualification to, in 2024 and 2025, actively letting one spouse carry the evidentiary weight for the other in active litigation. The next article in this run turns to a different competency question entirely — whether, and how, a witness who cannot communicate verbally can still testify, under Section 125.