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BSA 2023 § 126 — Competency of husband and wife as witnesses in certain cases

§ SECTION 126 · BSA 2023 · CHAPTER IX — OF WITNESSES

Competency of husband and wife as witnesses in certain cases

A spouse can be a witness. In civil cases, the parties and the husband or wife of any party are competent witnesses; in criminal cases, the husband or wife of the accused is a competent witness.

How to read Section 126

A party, and a party’s or an accused’s spouse, are competent to give evidence — in civil and in criminal cases.

Civil cases

The parties to the suit — and the husband or wife of any party — are competent witnesses.

Criminal cases

In a prosecution, the husband or wife of the accused is a competent witness.

Competency only

This makes the spouse competent — able to be called. It does not override the separate privilege for marital communications.

The bare Act

The section in its own words — two sub-sections: civil, and criminal.

Section 126 · verbatim

Civil. (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.

Criminal. (2) In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness.

In short: the section settles that a person’s spouse is a competent witness — the marriage relationship is no bar to giving evidence. In civil proceedings, both the parties themselves and the husband or wife of any party may be called; in criminal proceedings, the husband or wife of the accused may be called too (including, in principle, by the prosecution). But read this carefully as a rule of competency only. Two separate ideas are not decided here: whether a witness can be compelled to testify, and the privilege that protects communications made during marriage. So while a spouse is competent to testify, the law still shields confidential marital communications under a different provision — competency opens the door; privilege guards what may be asked.

→ This carries forward IEA 1872 § 120 — the competency of parties and spouses as witnesses.

Glossary

competent witness

A person the law allows to be called and to give evidence.

civil proceedings

Non-criminal litigation between parties — suits.

parties to the suit

The plaintiff and defendant themselves.

husband or wife of any party

A party’s spouse — competent to testify.

criminal proceedings against any person

A prosecution of the accused.

competency vs privilege

Being competent (allowed to testify) is separate from compellability and from the marital-communications privilege.

The picture

Marriage is no bar to being a witness — in civil and criminal cases alike — though the marital-communications privilege stands apart.

CIVIL proceedingsthe parties to the suit — and thehusband or wife of any party —are competent witnessesCRIMINAL proceedingsthe husband or wife of theaccused person is acompetent witnesscompetency only — the spouse can be CALLED as a witnessit does not lift the separate privilege for communications during marriagecompetent (allowed) is not the same as compellable, and not the same aswhat a witness may be asked to disclose

The section, part by part

Tap a part — the picture-story tells it first; the word-by-word text and example follow.

civilParties — and their spouses — are competent witnesses

In one lineIn all civil proceedings, both the parties themselves and the husband or wife of any party are competent witnesses.
a civil suitplaintiff v defendant(and each one’s spouse)the parties AND theirspouses are competentany of them may be a witnessno one here is shut out by being a party, or a party’s husband or wife
(1) In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit,in civil suits: the parties and any party’s spouse…both the litigants themselves and their husbands or wives…
shall be competent witnesses.→ are competent witnesses…are all competent to be called and to give evidence.
ExampleIn a property suit between P and D, P and D may testify for themselves, and so may P’s wife or D’s husband — each is a competent witness.
✗ Not thisCompetency is not credibility. That a party or spouse is allowed to testify does not mean the evidence must be believed — the court still weighs it like any other testimony.

criminalThe accused’s spouse is a competent witness — but privilege still stands

In one lineIn a criminal case, the husband or wife of the accused is a competent witness — competency only; the marital-communications privilege is a separate matter.
prosecution of anaccused personthe accused has a spousethe accused’s husbandor wife is competentmay be called as a witnessmarriage to the accused is no bar to being a witness
(2) In criminal proceedings against any person, the husband or wife of such person, respectively,in a prosecution: the accused’s spouse…the husband or wife of the person on trial…
shall be a competent witness.→ is a competent witness…is competent — the marriage is no bar to being called.
ExampleWhere H is on trial, his wife W is a competent witness — she may be called to give evidence. Whether she can be compelled, and what marital communications she may be asked to reveal, are governed elsewhere.
✗ Not thisCompetency does not abolish the privilege for communications made during marriage. A spouse may testify, yet still withhold protected marital communications under the separate privilege provision.

Connected provisions

§ 125 · back

Witness unable to communicate verbally

The previous mode-of-testifying rule — part of the same competency group.

§ 127 · next

Judges and Magistrates

A Judge/Magistrate cannot be compelled to answer about his own conduct or knowledge in court, save on a superior court’s order.

the limit

Marital communications

A later section keeps the privilege for communications during marriage — the boundary on this competency.

lineage

IEA 1872, § 120

Carried forward — competency of parties and of husband and wife as witnesses.