S. 120 Evidence Act Allows Spouses To Testify On Behalf Of Each Other Without Power Of Attorney: Kerala HC Sets Aside Order Dismissing Wife’s Plea To Examine Husband On Her Behalf
|The Kerala High Court overturned a ruling that restricted the husband from giving evidence on behalf of his wife, while observing that Section 120 of the Evidence Act, 1872 allows spouses to testify in place of each other, even without formal written authority or power of attorney.
The Court said that the witness is entitled to depose not only the facts within his/her knowledge but also within the knowledge of his/her spouse.
The Court was hearing a petition challenging the impugned order that rejected the request for examining the husband of the plaintiff in the trial of a suit, for and on behalf of the plaintiff.
The bench of Justice Kauser Edappagath perused Section 120 Evidence Act, 1872 and observed, “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.”
Advocate Vinod Madhavan appeared for the Petitioner.
Brief Facts-
The petitioner-plaintiff Smitha and the respondent-defendant Anil Kumar filed a suit seeking to declare two registered cancellation deeds executed by the defendant null and void and for a permanent prohibitory injunction. When the case reached the evidence stage, the petitioner filed an application requesting permission for her husband to present evidence on her behalf. The trial Court dismissed the application.
The Court perused Section 135 of the Evidence Act which deals with the order of production and examination of witnesses and observed, “It lays down that the production and examination of witnesses shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the Court.”
The Court further perused Order 18 Rule 3-A, Order 16 and Order 3 of CPC and observed, “a power of attorney can give evidence on behalf of a party in civil proceedings. However, he cannot depose in place and instead of principal.”
The Court also perused Section 120 which deals with the spousal competency of one spouse to testify for a litigant spouse in civil and criminal proceedings and observed, “it is clear that a non-litigating spouse is a competent witness for the other spouse who litigates. The expression competency of witness refers to the capacity, ability or qualification to give evidence in the Court of Law.”
The Court observed that the trial Court passed the order without adverting to Section 120 of the Indian Evidence Act.
Accordingly, the Court set aside the impugned order and allowed the application of the Petitioner.
Cause Title: Smitha v. Anil Kumar (Neutral Citation: 2024:KER:43463)
Appearance:
Appellant: Adv. Vinod Madhavan, Adv. M.V. Bose, Adv. Nisha Bose and Adv. Sanita C.V.