Report No. 69
84.34. The gist of section 151 can be thus expressed. The Court has a power to forbid scandalous or indecent questions or inquiries, unless they relate to facts in issue or are necessary to find out whether facts in issue existed. In practice, the, question that arises most frequently with reference to the prohibition in this section is whether the inquiry is scandalous and irrelevant, or whether it is relevant for, nothing can be rejected as scandalous if it is relevant.
According to Taylor-
"The law excludes, on public grounds, evidence which involves the unnecessary disclosure of matter that is indecent, or offensive to public morals, or injurious to the feelings of third persons.1 A disclosure is for this purpose 'unnecessary' whenever the parties themselves have no interest in the matter, except what they have impertinently created. The mere indecency of disclosures will not exclude them, where the evidence is necessary for the purpose of civil or criminal justice; as, on an indictment for a rape; or on a question upon the sex of one claiming an estate tail, as heir male or female; or upon the legitimacy of one claiming as lawful heir, or on a petition for dissolution of marriage, for judicial separation, or for damages on the ground of adultery.
But where the parties have impertinently interested themselves in a question, tending to violate the peace of society by exhibiting an innocent third person in a ridiculous light, or to disturb his peace and comfort, or to offend public decency by the disclosures which its decision may require, the evidence will not be received. Of this sort are wagers or contracts, respecting the sex of a third person, or upon the question whether an unmarried woman has had a child."2
1. Emphasis supplied.
2. Taylor, section 949.
84.35. Cases where questions relevant.-
There are cases in which the subject-matter of the enquiry is such that questions will have to be asked which cannot be fit for the drawing room, or which may appear to be scandalous. "Nothing could be more scandalous than a wife proclaiming her infamy from the witness box; but the latter part of the section expressly provides that if such questions relate to matters in issue, they shall be allowed." These observations were made in a Bombay case1 where a woman claimed maintenance for her illegitimate child.
1. Rozario, ILR 18 Born 468 (470).
84.36. In a Calcutta case also, it was held that if the indecent or scandalous questions relate to facts in issue or to matters necessary to be known to determine whether or not facts in issue exist, they must be allowed. In that case, during the examination of one of the defendants by the plaintiff, a question was put whether she was made pregnant by a certain person. The question was objected to, but the plaintiff contended that it was relevant, his case being that the witness did not inherit the property by reason of her unchastity during the life time of her husband. The form in which the question was asked did not show what period it referred to. Hence the case was remanded.
"If the plaintiff's case was that she did not inherit the property of her husband by reason of her unchastity during his life time, then the question would be relevant. If, however, it was asked for impeaching her credit as a witness, the Court will have to consider the provisions of sections 146 and 148 to 152."1
1. Subala v. Indra Kumar, AIR 1923 Cal 315(2), (Chatterjee & Pearson, JJ.).
84.37. In cases of this nature, the questions cannot be prohibited because they relate to facts in issue. All that can be done to mitigate the "scandal" is to exercise such power as is given by the law to the court to hold the proceedings in camera.
84.38. We do not recommend any amendment in the section, since the problems referred to above are concerned with the application of the section rather than with its content.
84.39. Allied to the prohibition in section 151 is that contained in section 152. The court has, under section 152, a duty to forbid two kinds of questions-(a) questions which are insulting or annoying, or (b) questions which, though proper in content, are needlessly offensive. The first group emphasises the improper content of the question. The second group is concerned with the offensive form of the question. In regard to the second group of questions, it is to be noted that even if the content of the question is proper, the form may be objectionable. Propriety of the question, so far as its content is concerned, is governed (apart from questions relevant to the issues) mainly by section 148, vide the words "such questions are proper" and "such questions are improper" in the various clauses of that section. It is not, however, enough that the content is one permissible by the tests laid down in section 148. The form must also avoid "needless offence".
84.40. This section thus reflects the regard of the law for the susceptibilities of the witnesse.- and, sometimes, for the susceptibilities of third parties also. It may be noted that in England, on November 6, 1950, the Bar Council approved rules with regard to cross-examination, of which the first Rule is material, and reads-
"(1) In all cases it is the duty of a barrister to guard against being made the channel for questions which are only intended to insult or annoy either the witness or any other person, and to exercise his own judgment both as to the substance and (as to) the form of the questions put."1
No further comments are needed on this section, which needs no change.
1. Archbold Criminal Pleadings, Evidence and Proof, (1966), p. 530, para. 1389.