Section 126 BSA 2023: Competency of Husband and Wife as Witnesses

Section 126 of the Bharatiya Sakshya Adhiniyam, 2023 deals with the competency of spouses as witnesses in certain civil and criminal proceedings. It confirms that marriage does not, by itself, make a husband or wife legally incompetent to testify.

Bharatiya Sakshya Adhiniyam, 2023 (Act No. 47 of 2023) | In force from 1 July 2024

Section 126 - Statutory Provision

In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses.
In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness.

What does Section 126 mean?

In evidence law, a person is a "competent witness" when the law permits that person to give evidence, subject to the general rules governing the ability of witnesses to understand questions and give rational answers. Section 126 specifically removes any doubt that a spouse can testify merely because he or she is married to a party or to an accused person.

The section applies in two distinct settings. In civil proceedings, both the parties themselves and the husband or wife of any party are competent witnesses. In criminal proceedings against a person, that person's husband or wife is likewise a competent witness.

Section 126 in civil proceedings

Sub-section (1) covers civil proceedings. A party to the suit may testify, and the spouse of any party to the suit may also testify. The rule therefore prevents a spouse from being excluded solely because of the marital relationship.

Section 126 in criminal proceedings

Sub-section (2) states that, in criminal proceedings against a person, the husband or wife of that person is a competent witness. Competency means legal capacity to testify. Whether particular testimony is relevant, admissible, privileged, credible or sufficient is decided under the other applicable provisions of the BSA and procedural law.

Important distinction: Section 126 concerns competency to testify. It should not be confused with Section 128 BSA, which deals with the protection of communications made during marriage and contains its own conditions and exceptions.

Relationship with the general rule on competency

Section 124 BSA lays down the general rule as to who may testify. Section 126 then specifically addresses spouses in civil and criminal proceedings. Read together, these provisions make clear that marital status does not create a general disqualification from giving evidence.

Key points at a glance

Issue	Section 126 rule
Civil proceedings	The parties and the husband or wife of any party are competent witnesses.
Criminal proceedings	The husband or wife of the person proceeded against is a competent witness.
Effect of marriage	Marriage by itself does not make a spouse incompetent to testify.
Marital communications	Competency under Section 126 is separate from the protection governing communications during marriage under Section 128.

Practical effect: Section 126 determines whether a spouse may legally be a witness. It does not mean that every statement made by or to a spouse is automatically admissible. Relevance, privilege, proof and other evidentiary requirements continue to apply.

Official statutory sources

The Bharatiya Sakshya Adhiniyam, 2023 is Act No. 47 of 2023 and came into force on 1 July 2024. For the authoritative text, amendments and notifications, refer to the official Government of India sources linked in the sidebar.

This page is intended as a general legal information resource. The statutory text and applicable judicial interpretation should be checked for the facts of a particular case.