1. This is an appeal by the defendant from the appellate decision of Mr. Ali Ausat who, on 28th February 1929, overset the judgment of B. Hari Shanker Vidyarthi, Munsif of Etah, in a suit in which the plaintiff-respondent had asked for the following relief:
It may be declared that the notice dated 6th December 1927 sent and signed by the secretary of the defendant and issued to the plaintiff is illegal, null and void; that the rule relied on and referred to in the notice docs not apply to the plaintiff and that under it the defendant has no legal remedy (sic) or right to take proceedings against the plaintiff in case of broach of order by her.
2. The suit was instituted by Asghari Jan alias Lappo, caste prostitute, with her mother Mt. Bismilla for her next friend, and was directed against the Municipal Board of Etah. The plaintiff with her mother lived in a house situate on the Grand Trunk Road in the city of Etah. The house presumably belonged to Mt. Bismilla, the plaintiff's mother. On 6th December 1927 a notice was served upon the plaintiff in which she was asked not to carry on her occupation as a prostitute at her place of residence after a week from the date of the notice, otherwise legal steps would be taken against her. It was stated in this notice that by-laws had been framed by the Municipal Board and sanctioned by the Local Government whereby prostitutes were prohibited from carrying on their occupation in houses on the Grand Trunk Road, Kutcherry Road, Naththa Park road and Mt. Bismilla Road; and that information of this fact had been given to the public generally by proclamation and by beat of drum, but that notwithstanding this, the plaintiff was carrying on her occupation within the prohibited area. Hence the warning.
3. The plaintiff alleged that she was a virgo in tacta, that her profession was. singing and dancing, that no sort of fornication was practised in the house occupied by her and that the by-laws framed' by the Municipal Board were therefore-not applicable to her. These allegations-were traversed by the defendant in the written statement dated 28th March, 1928. This written statement was signed and verified by the Municipal Vice-Chairman, Pundit Shiva Datt, B.A. LL.B., Vakil, Etah Courts. He declared that paras. 1 to 13 of his written statement, were true to his belief which was founded upon a perusal of papers. In para 7 of the written statement he denied that the plaintiff was a minor. In para. 8 he stated as follows:
The plaintiff's allegation that she follows the-profession of dancing and singing only and is not a public prostitute is absolutely wrong. The plaintiff is a public prostitute. This is the means by which she earns her livelihood and this is her ordinary profession.
4. Pundit Shiva Datt did not figure as a witness in this case and we are not aware of the documents, if any, on which the allegations contained above were founded.
5. Three issues were framed by the trialCourt:
1. Whether the plaintiff is an adult, if so how does it affect the case?
2. Whether the plaintiff is not a public prostitute and is she entitled to a declaration sought for?
3. Whether the suit is barred by limitation?
6. The learned Munsif decided issues 1 and 2 in favour of the plaintiff. On issue 1 he remarked as follows:
The statement of the Civil Surgeon supported by the entry in the defendant's own birth register very satisfactorily proves that the plaintiff is merely 15-1/2 years of age.... By appearance too the plaintiff does not appear to be an adult.
7. On issue 2, the plaintiff produced a. number of persons who deposed that they had approached the plaintiff through, her mother and had made overtures to her but she had refused to have sexual intercourse with them. The Munsif disbelieved this evidence. The Municipal Board produced certain witnesses who deposed that they were on terms of intimacy with the plaintiff and had sexual connexion with her. One of these witnesses was raiyat of Rai Inder Narain, the Chairman of the Municipal Board. An other witness was the cousin of the Municipal contractor. The Munsif believed this evidence and he drew an adverse presumption against the plaintiff on account of her refusal to submit to a medical examination. He accordingly dismissed the suit.
8. Plaintiff appealed. The procedure adopted by the appellate Court was curious, and his theories were somewhat farfetched. The learned Judge says:
When the case was first argued before me and the oral evidence was read over, I thought that having regard to the ago of the plaintiff, she could not remain a virgin, and so I asked her counsel to produce her and got her examined by a lady doctor about this point. The counsel agreed to this course and then plaintiff appeared and plaintiff's counsel stated to the Court that the girl lost her virginity two months ago as she is in the keeping of a gentleman (sic) at some place. Still I was not satisfied with the story that plaintiff lost her virginity only two months ago and I asked the plaintiff's pleader to get the plaintiff examined by a lady doctor about 'the fact whether she had been used to cohabitation only for two months or for two years, but plaintiff's mother appeared and said that she does not want to examine her daughter by a lady doctor nor that she got the fee. The statement that she has got no fee is not correct. So it is fair to infer that the girl is given to cohabitation since two years.
9. We are not aware if any scientific data could be available to a medical expert to enable him to give an opinion with anything like reasonable certainty as to the probable period for which a fairly grown up woman was carrying on sexual intercourse. We are also not aware of any law which renders it permissible for a Judge to draw an inference against a woman from her refusal to submit to a medical examination that she was 'given to cohabitation since two years.' At another place the learned Judge makers an observation which appears to us to be inconsistent with what he has said before:
it is true that plaintiff has connexion with some person, whether since two months or one year, it is difficult to say....
10. The learned Judge discards the oral evidence produced by the parties and we are of opinion that there was ample justification for this.
11. During the progress of the hearing of the appeal, the learned Additional District Judge passed a long order, couched in the following terms:
The defendant's counsel says that though defendant's vakil in the Court below admitted that plaintiff knows singing and dancing, bat that is not her chief profession and she does not practise Singing and dancing as an Article On the other hand, plaintiffs counsel says that plaintiff practises as an art and follows it as a profession. As the question largely hinges on the point whether the chief business of plaintiff is public prostitution or her chief business is singing and dancing as an art, so in order to decide this point it is necessary that some one who is an expert in this art should be examined. The export should see the girl's singing and dancing and then should give his evidence before this Court. The expert's fee will have to be paid by the plaintiff. Mr. A.A. Jilani, M.A. LL. B., Vakil, is present in Court. Ho says that he can work as an expert. I appoint him as an export. Ho should have the performance of singing and dancing of the girl at some place and give evidence before this Court; on 26th February 1929. His fee will be fixed later on.
12. Mr. A.A. Jilani 'got a performance of music of Mt. Asghari Jan made on the night of 25th February 1929.' The performance lasted from 9 30 p.m. to 1 30 a.m. He had 'invited the best educated singers of the city to hear the singing and to help him as assessors.' Ho 'took help from them.' He 'weighed their opinion with, his opinion in forming the opinion about the art of the plaintiff.' Mr. A.A. Jilani was examined in Court on 27th February 1929. The following portions of his statement may be reproduced:
1. In my opinion she is a tolerably fair singer and knows the article
2. She is a trained girl in the art of music and is not an ordinary public prostitute.'
3. I noted seven special features in her performance.'
4. A girl who is habituated to promiscuous cohabitation like a public prostitute can in no way possess a melodious and sustained voice and from this I say that plaintiff is not a public prostitute.
13. While candidly admitting that he had not received training in music in any school Mr. Jilani tried to support his pretentious as expert in the art of vocal music;
I have been regularly hearing singing of dancing girls since 12 years.... Last year when the Municipal Board of Aligarh were intending to pass a resolution that prostitutes should be segregated and removed from the various quarters of the city then I was appointed by S.D.M. Koil to make a local inspection and ascertain the value of the houses at present occupied by such prostitutes and submit a report. In connexion with that inquiry I made a thorough inspection and became acquainted with a large number of public prostitutes. With the exception of one or two public prostitutes in Aligarh, the rest had no arrangement for singing and so I couid not hear their singing. I am generally engaged by pros titutes in Aligarh in their cases and so I had many opportunities of mixing with them. I have hoard singing of only two or four public prostitutes in Aligarh because, public prostitutes here generally do not know singing.'
14. The procedure adopted by the learned Additional District Judge in requiring the production of additional evidence in the case is no less novel and startling than the nature and character of the evidence itself. The parties had closed their case. No evidence available to the plaintiff or necessary for the decision of the case had been improperly shut out by the trial Court. The question in issue in the case 'was whether the plaintiff was a public prostitute within the meaning of that expression in the by-laws framed by the Municipality of Etah. It is a matter of common knowledge that in this country, women who habitually allow the use of their person for sexual intercourse in lieu of hire do also cultivate the art of singing and dancing as an adjunct, as much for purposes of gain as for additional attraction. All the world over, some women take to the life of a public prostitute either from choice or by force of circumstances. In the oriental countries, not uncommonly, there is a caste of public prostitutes. In India, such is the case both amongst Hindus and Mahomedans and the occupation of a public prostitute descends from mother to daughter. These prostitutes carry on the occupation of sexual intercourse for a consideration and also associate with themselves the occupation of singing and dancing for hire. The fact that some of these women are more respectable than the rest, in so far as they earn more by singing and dancing, does by no means place them in a category different from that of public prostitutes. The plaintiff has been described in the plaint as belonging to the caste of prostitutes. Her mother had admittedly been a public prostitute. Her mother's sisters excepting one are still carrying on this occupation. In view of her antecedents and environments, it may not be difficult to make a forecast of the plaintiff's future life.
15. But the question is whether the lower appellate Court was justified in recording the evidence of Mr. A.A. Jilani and using that evidence in support of the conclusion that the plaintiff was not a public prostitute. The deduction of Mr. A.A. Jilani, that because the plaintiff had a trained, melodious and cultivated voice and that she could sustain her voice at aloud pitch for a considerable length of time, therefore she could not be a public prostitute, does not appear to us to be an infallible, unerring or even a necessary deduction. The musical characteristics noticed by Mr. A.A. Jilani may well be found in a person given to sexual excess or sexual abuse. The presence or absence of those characteristics may vary with the changeable phases of temperament and physical constitution in individuals. Upon has own showing Mr. A.A. Jilani is not an expert in music and his statement is not of any value in deciding the main issue. As we have noticed already, the learned Additional District Judge has rejected the oral evidence produced by the parties. He accepts the statement of Mr. A.A. Jilani in its entirety:
the whole thing turns to a great extent upon the evidence of Mr. Jilani, commissioner.... It is clear to me from the evidence of Mr. Jilani that a public prostitute hardly knows her slinging and dancing and it is a matter of common knowledge that the girls who carry on the profession of singing and dancing and know the art do not generally carry on the profession of a public prostitute because thereby they lose their tone and melody. The saying is that one cannot blow hot and cold in the same breath,
16. We hope the learned Additional District Judge understood and appreciated the application of the saying last-quoted to the facts that he was dealing with. The powers of a Court to issue a commission have been provided for in Section 75 and Order 26, Civil P.C. Commissions may be issued for holding a local investigation, to examine accounts or to make partitions. But there is nothing in the Civil Procedure authorizing a Court to issue a commission be a person directing him to hear a woman sing and then to report not only as to her skill as a singer, but also as to her occupation in life so far as it could be deduced from her musical talents. Further there is nothing in law to authorize the commissioner so appointed to try the issue referred to him with the aid of assessors. This is what has in effect been done. Under Order 41, Rule 27 (I)b), an appellate Court may allow a witness to be examined, where the said Court requires such witness to be examined to enable it to pronounce judgment or for any other substantial cause. In Clause (2) it has been provided that where additional evidence is allowed to be produced by an appellate Court, the Court shall record the reasons for its admission. Rule 29 provides that where additional evidence is directed or allowed to be taken, the appellate Court can specify the points to which the evidence is to be confined and record on the proceedings the points so specified. The appellate Court has admitted additional evidence in this case in utter disregard of the provisions referred to above. There was no justification for the evidence of Mr. A.A. Jilani and his statement should be ruled out. In taking this view, we are supported by the decision of the Privy Council In re Man Mohan Das v. Bam Dei History illustrates that prostitution has been inseparable from human society in large communities. It has been observed that
In different countries and ages it (prostitution) has in turn been patronized and prohibited, ignored and recognized, tolerated and condemned, regulated and let alone, flouted and concealed (Encyclopaodia-Britannica, Vol. 22).
17. In different ages and climes, laws and regulations had to be introduced to minimize the evil of prostitution as far as possible, with a view to preserve public order and decency. There is a reference to houses known as the dicteria so far back as the laws of Solon. These were houses of prostitution and were confined to certain local areas. The dicteriades were forbidden in the superior parts of the town. In all countries, legislation with a view to combat or uproot this evil has mot with varying degrees of unsuccess. The Municipality is entitled to jraake by-laws with a view to preserve order and decency; but the by-laws must be strictly construed where they trench upon the rights of a citizen. Section 247, U.P. Municipalities Act (2 of 1916), provides as follows:
'When a Magistrate of the First Glass receives information: (a) that a house in the vicinity of a place of worship or an educational institution or a boarding house, hostel or mess used or occupied by students is used as a brothel or for the purpose of habitual prostitution or by disorderly persons of any description, or (b) that any house is used as aforesaid to the annoyance of respectable inhabitants in the vicinity, or (c) that a house in the immediate neighbourhood of a cantonment is used as a brothel or for the purpose of habitual prostitution, he may summon the owner, tenant, manager or occupier of the house to appear before him either in person or by agent; and if satisfied that the house is used as described in Clause (a), clause (b) or Clause (c) may by a written order direct such owner, tenant, manager or occupier, then a period be stated in such order not less than five days from the date thereof, to discontinue such use; Provided that action under this subsection shall be taken only: (1) with the sanction or by the order of the District Magistrate; (2) on the complaint of three or more persons residing in the immediate vicinity of the house to which the complaint refers; or (3) in the ease referred to in Clauses (a) and (c) of this subsection, on the com plaint of the Board. If a person against whom an order has been passed by a Magistrate under Sub-Section (1) fails to comply with such order within the period stated therein; the Magistrate may impose on him a fine which may extend to Rs. 25 for every day after the expiration of that period during which the house is so used.
18. The procedure indicated herein was not adopted in this case, nor was this section utilized or enforced. Section 298 of the Act authorizes a Municipal Board to make certain by-laws (E)(b), permitting, prohibiting or regulating the use or occupation of any or all public streets or places by itinerant vendors, or by any person for the sale of articles or for the exercise of any calling or for the setting up of any booth or stall, and providing for the levy of fees for such use or occupation.
The same section under the heading of Public Safety and Convenience (H) in sub-Clause (e) authorizes the making of by-laws for prohibiting, in any specified street or area, the residing of public prostitutes and the keeping of a brothel, or the letting or other disposal of a house or building to public prostitutes or for a brothel.
19. The Municipal Board of Etah in pursuance of Section 298 framed a by-law which provided that
no public prostitute shall reside within the areas or in the streets specified below.
20. The streets 'specified below' are those which are referred to in the notice dated 6th December 1927. It has been argued that the Municipal Board of Etah was not competent to frame the by-law in question and, that this by-law is ultra vires. We are of opinion that the use of the word and' between the words 'prohibiting in any specified street or area the residing of public prostitutes' and 'the keeping of a brothel' is unhappy and that the intention of the legislature was to provide against two evils and not one. The residence or occupation of public prostitutes is an item separate and distinct from the keeping of a brothel. This meaning is apparent from the words which follow, namely:
the letting of a house or building to public prostitutes or for a brothel.
21. In our view, the by-law framed by the Municipal Board is not ultra vires and is in keeping with the object and intention of the statute. The term public prostitute' has not been defined in the U.P. Municipalities Act. The common type of a public prostitute is a woman who exhibits herself on the balcony or other prominent part of her house to attract people. In our view, a public prostitute is a woman who usually and generally offers her person to sexual intercourse for hire and who openly advertise and acknowledges her occupation by wore of mouth, deportment or conduct. For the by-laws to be applicable, a woman should be not only a prostitute but a public prostitute. A great degree on moral degradation alone will attract the application of a drastic law which involves the consequence of a woman being compelled to leave her house in which she might have invested her fortune or might have other associations. It could not have been said at the date of the notice issued by the Municipal Board or wh6n the suit was instituted that the plaintiff was a public prostitute simply because she belonged to the caste of prostitutes or that her mother and mother's sisters were public prostitutes.
22. Even eliminating from the record the statement of Mr. Jilani, there were materials before the Court below for coming to th9 conclusion that the plaintiff was not a public prostitute. She is a minor of about 16 years of age. She carries on the occupation of singing and dancing for the present and lived for nearly two months as a concubine or mistress of a certain man in the district of Etah and there is nothing to show that their intimacy is not of an exclusive character or that it may not assume the form of a more lasting alliance. In the present circumstances and on the facts established by evidence it cannot be said that she has so far led the life of a public prostitute. It is however possible her occupation may in future take a turn which is inconsistent with any other hypothesis than that she is a public prostitute. Upon these facts, it could not be said that she was a woman who openly and habitually offered her person to promiscuous sexual intercourse for gain. It follows therefore that the plaintiff is not a public prostitute and the by-law cannot apply to her case. The lower appellate Court has found that the plaintiff is about 16 years old. As quaintly put by the learned Additional District Judge:
the suit was properly instituted under the next friendship of mother.
22. We are of opinion that there is no defect in the frame of the suit. The appeal fails and is dismissed with costs.