[S.120 Evidence Act] Husband & Wife Can Testify On Behalf Of Each Other Without Executing Power Of Attorney: Kerala High Court

Justice Kauser Edappagath stated that the Trial Court had wrongly rejected the request for examining the plaintiff's husband for and on her behalf in the trial of a suit.

“On a careful reading of the above provision, 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. 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 petitioner, original plaintiff, had approached the High Court challenging the rejection of her request for examining her husband, for an on behalf of her.

The Trial Court had dismissed her application stating that it was impermissible to permit any person to give evidence on another person's behalf. The Trial Court also observed that the husband could be examined as her witness.

The Court stated that Section 120 of the Evidence Act deals with the competency of spouses where one spouse is competent to testify for a litigant spouse in civil and criminal proceedings. Section 120 reads thus: 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.

The Court thus stated that the Order of the Trial Court that the husband cannot give evidence on behalf of the plaintiff/wife and could only be called as plaintiff's witness was not justified and was without adverting to Section 120 of the Evidence Act.

Counsel for Petitioner: Advocates Vinod Madhavan, M.V.Bose, Nisha Bose, Saniya C.V.

Citation: 2024 LiveLaw (Ker) 384

Case Title: Smitha v Anil Kumar

Case Number: OP(C) NO. 154 OF 2024

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