Report No. 69

Chapter 61

Parties and Their Spouses

Section 120

I. Introductory

61.1. Compellability.-

The special topic of competence of parties is dealt with in section 120. The section is in two parts. Under the first part, in all civil proceedings the parties to the "suit",1 and the husband or wife of any party to the "suit", shall be competent witnesses. Under the second part, in criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness. The section is silent about compellability. At common law, competence includes compellability,2 but compellability on this principle may not, in England exist in the case of spouses.3

The section does not expressly provide that if a witness is competent, he will be compellable. But compellability may follow, either by reason of the procedural law or by reason of the common law4 referred to above. Compellability may, of course, be excluded by specific statutory provisions.5

1. This should be "proceeding".

2. R. v. Lapworth, (1931) 1 KB 117 (CCA).

3. Leach v. K., 1912 AC 305.

4. See Common Law rule, supra.

5. E.g. sections 51-52, Indian Divorce Act, 1869.

61.2. Accused.-

The latter half of the section, dealing with criminal cases, does not mention the accused. In India, the accused in a criminal case is not compellable to be a witness; the Code of Criminal Procedure prohibits such compulsion .1 The Constitution2 also prohibits compelling the accused to be a witness "against himself". Formerly, in India, the accused was not even competent to testify on his own behalf; he could not be given the oath,3 nor could he swear an affidavit.

Since the insertion of section 342A in the Code of Criminal Procedure, 1898, (by Act 26 of 1955)-which provision has, in substance, been re-enacted in the Code of 1973-an accused has the option to examine himself as a witness for the defence. If he exercises the option, he has to take the oath. His position is then like that of any other witness, and he can be cross- examined like any other witness. So the accused is now competent, but not compellable.

1. Section 315, Code of Criminal Procedure, 1973.

2. Article 20(3) of the Constitution.

3. Akshoy v. R., 1918 ILR 45 Cal 720.

61.3. Comment on failure is give evidence.-

It may be noted that in India, even comment on failure to enter the witness-box is not allowed. In England, comment on the failure of the accused to enter the witness-box is permissible. It should, however, be noted that even in England, the Court of Appeal has more than once pointed out the need for exercising caution as to comment. A trial Judge who is minded to make a comment on the absence of the accused from the witness-box, has to have regard to the caution given by higher Court from time to time. In Waugh v. R., 1950 AC 203 (211) (PC), Lord Oaksey observed:

"It is true that it is a matter for the Judge's discretion whether he shall comment on the fact that a prisoner has not given evidences, but the very fact that the prosecution are not permitted to comment on the fact shows how careful a Judge should be in making such comments."

In R. v. Bathurst, (1968) 1 All ER 1175 (1178, 1179), approved in R. v. Mutch, (1973) 1 All ER 178, Lord Parker, C.J., described the following as an acceptable form of comment:

"The accused is not bound to give evidence, that he can sit back and see if the prosecution have proved- their case, and that while the jury have been deprived of the opportunity of hearing his story tested in cross-examination, the one thing that they must not do is to assume that he is guilty because he has not gone into the witness-box."

61.4. In the U.S.A., the Supreme Court has held1 that allowing comment by the prosecution on the election of an accused not to testify is unconstitutional, in view of the privilege against self-incrimination. (Fifth Amendment).

1. Griffin v. California, (1965) 380 US 609: 85 SCT 1129: 14 Lawyers' Edn. 2nd 106.

II. History of English Law

61.5. The law on the subject in England has an interesting history. A brief historical survey of the English law may be useful at this stage.1

1. Common law: At common law, neither the parties nor their spouses were competent to give evidence at all. Certain statutory modifications for civil cases are as follows:

2. (a) Lord Brougham's first Evidence Act, 1851: Section 2 of Evidence Act, 1851 made the parties (but not their spouses)2 competent and compellable, section 3 of the Act made an exception in criminal proceedings. Section 4 made exceptions in proceedings instituted in consequence of adultery and in actions for breach of marriage.

(b) Lord Brougham's second Evidence Act, 1853: Section 1 of the Evidence Act, 1853, made the spouses of the parties competent and compellable. Section 2, however, made exceptions to section 1 in criminal proceedings and "in any proceeding instituted in consequence of adultery".

3. The Matrimonial Causes Act, 1857, (which created divorce courts) allowed divorce mostly on the ground of adultery. The preservation by the Act of 1853 of the common-law rule that parties and their spouses were neither competent nor compellable to give evidence in proceedings instituted 'in consequence of adultery' thus assumed a new importance, as most proceedings under the 1857 Act fell within the category.

4. Evidence (Further Amendment) Act, 1869: Section 1 of the Act.-The exceptions made in Lord Brougham's Acts (1851-1853) in respect of actions for breach of promise of marriage and proceedings instituted in consequence of adultery were repealed by the Act of 1869, section 1.

5. Criminal Evidence Act, 1898: None of these statutes applied to criminal cases, so that the common law rule of the competence of the parties and the spouses continued to apply. The Act of 1898 made the accused competent, but not compellable, as a witness. It also made certain statutory changes pertaining to the wife of the accused. The Act made her a competent witness for the prosecution in certain special cases,3 but she is still not compellable. The present position in England, is that the parties and their spouses are (subject to privilege) competent and compellable in Civil cases. The accused is competent, but not compellable. The spouse is not competent or compellable, except in a few cases. This, of course, is a very broad statement of the position.

1. Adapted from Tilley v. Tilley, 1949 Probate 240, 154: (1948) 2 All ER 1113 (1119, 1120).

2. See Tilley v. Tilley, (1948) 2 All ER 1113 (1120).

3. See "Position of the spouse", infra.