Case No.:

AC-CP-39-1956

Court:

Major Court Confirmation

Issue No.:

1961

Principles

·  Evidence—Marital disqualification—Competency of husband’s evidence in criminal trial of wife Accused was convicted of causing herself to miscarry being quick with child under Penal Code, s. 262. Evidence of the accused husband was accepted at her trial

Held: A husband is a competent witness in a criminal proceeding against his wife, In accordance with the Indian Evidence Act.

Judgment

MAJOR COURT CONFIRMATION

SUDAN GOVERNMENF v. FATMA AHMED RASHEED AND ANOTHER

AC-CP-39-1956

R. C. Soni J.. March 7, 1956:—This is quite a grange case of causing discarriage of one’s legitimate child. It appears that the girl was in  great agony. And If the child was full-grown as the doctor says it was, and if it may have been born alive (the doctor is not sure about its stiIll birth) then the offence of miscarriage has not be committed. It may be an

attempt at delivery only. I wonder whether it was desirable to prosecute the girl. Anyhow I am glad that the court utilised Code of Criminal Procedure, s. 24.

During the proceedings before the trial court I notice at page zo that the evidence of the husband given before the committing magistrate was read out, without examining him as a witness. Is there any provision of law allowing this procedure? Moreover, generally speaking a husband is not a competent witness in a criminal trial against the wife. Nor, I believe, can a husband be compelled or even permitted to disclose any communication made during the married state. (This applies to both spouses.) Probably the law in the Sudan is the same.

Regarding the proper method of examining a medical witness, I should like to say that he should be asked to testify to what he s or what he did. He can use his report made at the time to refresh his memory. But the written report is strictly not evidence. It is the oral testimony which is, unless the law of the Sudan is to the contrary.

M. A. Abu Rannat C.J. March 11, 1956:-Finding and sentence are confirmed. There is evidence that the child was illegitimate. Accused No. 1 only joined her husband four months before the incident; her husband states (p. 11 of Magisterial Inquiry) that he thought that she conceived a child in April i.e., four months before the incident. He states that he was on leave in November 1955, but he did not say whether there was cohabitation or not. The fact that accused No. 1 was trying to conceal the birth tends to show that she did not believe the child was legitimate.

Paragraph 2 of your note: This procedure is permitted under Penal Code, s. 220. The court should have stated the reasons why they resorted to the application of this section. In the Sudan we follow in criminal proceedings the Indian Evidence Act. The Indian Act, S. 120, provides

"In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness.” In India as well as in the Sudan, a husband and wife are competent witnesses for or again each other in civil as well as in criminal proceedings. This is different from English law where a husband and a wife are not competent witnesses for or against each other.

The spouses are only protected from the provisions of Penal Code, s. 179 (screening or harbouring of offenders) but no more.