Sajjad Husain LawSajjad Husain Law Associates

Introduction

In a divorce case built on an allegation of adultery, the questions asked in cross-examination are, almost by definition, going to be indecent by ordinary standards. Yet the case cannot be tried without asking them. How does the law distinguish between an indecent question the trial genuinely needs, and one that serves no purpose beyond humiliation?

Section 154 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), in Chapter X ("Of the Examination of Witnesses"), draws exactly that line. It gives the Court discretion to forbid indecent or scandalous questions — but builds in an exception for exactly the situation described above, where the indecency is inseparable from the facts actually in dispute. This article explains how that discretion works, why it differs from the mandatory duty in the very next section, and how courts decide when an uncomfortable question is genuinely necessary.

Section 154 Explained: Discretion Bounded by a Real Exception

The structure of this section rewards careful reading. It starts by giving the Court broad discretion — "may forbid" — to exclude indecent or scandalous questions, even ones that have "some bearing" on the case. That last phrase matters: the section explicitly contemplates that an indecent question might still be somewhat relevant, and gives the Court power to exclude it anyway, purely because of its indecent or scandalous character.

But then comes the carve-out: this discretion does not extend to questions relating to facts in issue, or to matters necessary to determine whether the facts in issue existed. Where a case is genuinely about the indecent or scandalous matter itself — not merely brushing up against it — the Court's power to exclude the question disappears. The trial cannot proceed at all without asking it.

The Line Between "Bearing" and "Fact in Issue"

The clearest way to see the distinction is through the paradigm case this section is built around: a matrimonial dispute alleging adultery. Questions about a party's sexual conduct are, by any ordinary measure, indecent. But if adultery is the very fact the case turns on, those questions relate directly to a fact in issue — the exception applies, the Court's discretion to exclude evaporates, and the indecent questioning must be permitted for the case to be tried at all.

Worked Example: Two Questions, Two Outcomes

In a matrimonial case alleging adultery with a named individual, a question directly probing the alleged conduct with that individual relates to the fact in issue itself — it must be permitted, indecent as it is, because the case cannot be decided without it. But a question probing an entirely separate, historical relationship unconnected to the allegation before the Court has, at most, "some bearing" — general character, perhaps — without relating to the actual fact in issue. That second question falls squarely within the Court's discretion to forbid.

Section 154 Is Not the Only Protection in Play

It is worth being precise about what Section 154 does and does not do, particularly in criminal trials for sexual offences. This section governs the Court's general discretion over indecent or scandalous questioning across all kinds of proceedings — it is not a specialised shield built specifically for sexual-offence complainants. Indian criminal procedure has developed additional, more targeted protections for that context over the years, including restrictions on using a complainant's general character or past sexual history to attack their credibility in the first place.

Section 154 operates alongside those more specific protections rather than replacing them. Where a targeted rule bars a line of questioning outright, that rule controls; Section 154's discretion becomes relevant for the broader universe of indecent or scandalous questions that fall outside those specific, narrower prohibitions. Practitioners should treat Section 154 as a general backstop, not the primary safeguard, in cases where more specific statutory protections already apply.

Section 154 vs. Section 155: A Deliberate Contrast

Section 154 sits immediately before Section 155 — already covered in this series — and the two are best understood together, since they represent two different design choices for two different problems.

The reason for the difference is straightforward once the underlying subject matter is considered. Indecency and scandal are often unavoidable when the case itself concerns indecent or scandalous conduct — so the law builds in room for genuinely necessary questioning. Insult and needless offensiveness, by contrast, are never genuinely necessary; there is always a less humiliating way to ask a legitimate question. That is why Section 155 permits no exception where Section 154 does.

Section 154 BSA vs. Section 151 IEA: The Rule Is Unchanged

Section 154 corresponds to Section 151 of the Indian Evidence Act, 1872 (IEA), carried forward without change, including the discretionary standard and the facts-in-issue exception.

Because the wording is unchanged, the settled Indian case law distinguishing questions with mere "bearing" on a case from questions relating to genuine facts in issue continues to apply directly under Section 154 of the BSA.

Who Section 154 Actually Affects

1. Family and matrimonial law practitioners encounter this provision constantly, since allegations like adultery inherently require indecent questioning that falls within the exception.
2. Trial judges must draw the line between questions relating to facts in issue and questions with mere tangential bearing, exercising real discretion over the latter category.
3. Cross-examining counsel should be prepared to justify how a proposed indecent question connects specifically to a fact in issue, rather than assuming general relevance to the case is sufficient.
4. Witnesses facing indecent questioning in a case genuinely about such conduct should understand the Court has limited power to exclude it, unlike the unqualified protection in Section 155.
5. Appellate courts reviewing evidentiary rulings will examine whether a trial court correctly classified a disputed question as bearing on a fact in issue or merely tangentially related.

Key Takeaways

1. The Court has broad discretion to exclude indecent questions: even ones with "some bearing" on the case can be forbidden.
2. But that discretion has a hard limit: questions relating to facts in issue, or necessary to determine them, must be permitted despite their indecent character.
3. Matrimonial disputes are the classic application: allegations like adultery inherently require indecent questioning that the exception protects.
4. It contrasts deliberately with Section 155: discretionary and exception-bearing here, mandatory and unqualified there, reflecting that indecency can be genuinely necessary while insult never is.
5. The rule is unchanged from 1872: Section 154 BSA carries forward Section 151 IEA without substantive modification.

Conclusion

Section 154 solves a problem that Section 155 does not have to face: sometimes the very thing a case is about is indecent, and the trial cannot function without asking about it directly. By giving the Court discretion bounded by a genuine exception for facts in issue, the section lets judges exclude gratuitous or tangential indecency while still permitting the questioning a case genuinely requires.

For counsel, the practical test is simple to state and harder to apply: before asking an indecent question, be ready to show precisely how it connects to a fact actually in issue — general relevance to the broader case will not be enough to keep the Court's discretion to exclude it at bay.