Skip to content


Mohammad Ismail Maricair Vs. Wazir Bi Bi Saheba - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1205 of 1949
Judge
Reported inAIR1951Mad311; (1950)2MLJ385
ActsCode of Civil Procedure (CPC) , 1908 - Sections 75, 132 and 132(1) - Order 26, Rule 1
AppellantMohammad Ismail Maricair
RespondentWazir Bi Bi Saheba
Appellant AdvocateG.R. Jagadisa Aiyar, Adv.
Respondent AdvocateA. Viswanatha Aiyar and ;D.C. Krishnamurthi, Advs.
Cases ReferredMariambi v. Abdul Hamid
Excerpt:
.....of a particular lady cannot be taken into consideration i fail to see how one can speak of the 'customs and manners' of a particular lady. in a country like india the customs and manners prevailing in one part of the country differ lar-gely from those prevailing in other parts. but once the question of fact-is decided and it is found that a particular woman falls within the class mentioned in section 132(1), i fail to see why we should disregard the interpretation of the scope of the provision by learned judges in 1899. 5. i am also unable to agree with the learned judge in taking judicial notice of a complete change in the customs and manners of the muslim community in the state of madras asregards the custom of gosha. though it is true that there are instances of muslim ladies..........referred to as the code).3. section 132(1) of the code runs thus :'woman who, according to the custom and manners of the country, ought not to be compelled to appear in public shall be exempt item personal appearance in court.'the question whether any woman falls within the category of woman mentioned in this provision is really a question of fact. ordinarily courts have not found any difficulty in determining this question. bat there are some observations in the recent decision of mack j. in salma bi v. mohammed ebrahim sahib, : air1950mad151 to which i am constrained to refer, because they do not accord with the interpretation placed on the section by the courts in india so far. the learned judge said :'as i read section 132(1) it is not the custom and manners of habits of a.....
Judgment:

Rajamannar, C.J.

1. This is a petition foe revising the order of the District Munsif of Vel-lore directing that the plaintiff in O. S. No. 406 of 1948 on his file be examined on commission in the house of the counsel for the defendant. An advocate was appointed commissioner to examine her. The suit was for the recovery of a jewel or its value, and the amount alleged to be due on a band loan from the defendant. Inthe affidavit filed by the plaintiff in support of the application for the issue of a commission to examine her, she stated that she was a Muslim gosha lady and according to the law and custom among her people, she did not attend Court. She prayed that she may be examined at her residence. The defendant filed a counter affidavit in which he did not deny the statement of the plaintiff that she was a purdhanashin lady. The application was, however, opposed on the ground that its purpose was to substitute some one else in place of the plaintiff behind the purdah. It was suggested that the plaintiff should be made to appear in Court and despose before the Court after the work of the day was over, if necessary, in camera. The District Munsif made the following cryptic order :

'It is alleged that the plaintiff might be examined on commission in the house of P. K. Chandrasekhara Aiyar counsel for defendant. Therefore Mr. N. Subra-mania Sastri, advocate, 19 appointed as commissioner to examine plaintiff on commission.'

The defendant seeks to have this order revised.

2. It is difficult to understand what the Munaif meant in saying that it was 'alleged' that the plaintiff might be examined in the house of the counsel for the defendant. Possibly be meant that it was agreed by both sides. If that be so, the defendant is not now entitled to complain and the petition must be dismissed. But the petition before us was argued on the assumption that there was no such agreement. When the revision petition came on for hearing before Krishnaswami Nayudu J. the learned Judge considered that the revision petition raised a question which it was desirable should be decided by a Division Bench, because of the conflicting views taken by single Judges of this Court as to the scope and extent of the applicability of Section 132(1), Civil P. C., (hereinafter referred to as the Code).

3. Section 132(1) of the Code runs thus :

'Woman who, according to the custom and manners of the country, ought not to be compelled to appear in public shall be exempt item personal appearance in Court.'

The question whether any woman falls within the category of woman mentioned in this provision is really a question of fact. Ordinarily Courts have not found any difficulty in determining this question. Bat there are some observations in the recent decision of Mack J. in Salma Bi v. Mohammed Ebrahim Sahib, : AIR1950Mad151 to which I am constrained to refer, because they do not accord with the interpretation placed on the section by the Courts in India so far. The learned Judge said :

'As I read Section 132(1) it is not the custom and manners of habits of a particular indvidual lady which has to be taken into consideration or the customs and manners of a family or a small community but the 'custom and manners of a family' as a whole.'

While I entirely agree that the habits of a particular lady cannot be taken into consideration I fail to see how one can speak of the 'customs and manners' of a particular lady. I must dissent from the statement that the customs and manners of a family or a small community should neve; be taken into consideration. In a country like India the customs and manners prevailing in one part of the country differ lar-gely from those prevailing in other parts. Evens among persons of the same religious persuasion, such differences can be perceived. Taking the very case of gosha, this custom is very much prevalent even among Hindu women in Northern India, while it is practically absent in Southern India. In my opinion, the customs and manners of the country mean the customs and manners of the different communities and classes and sections of the people in the country. It may also be that aooording to the customs and manners of a particular locality, certain families, say of a noble rank, observe gosha. Actually we find that several of the decided cases relate to Hindu women of whom it cannot certainly be said that there is universal custom of gosha obtaining throughout the country.

4. The learned Judge went on to say that customs and manners of a country go on chang-ing. I agree. And I also agree that in order to decide whether a particular woman is or is not entitled to the benefit of Section 132(1), the customs and manners of the country prevailing at the time the Courts are called upon to apply it should be the criterion and not the customs and manners which might have prevailed years ago. but which had become completely obsolete. This construction of the section is not really a fresh judicial interpretation, but the only reasonable interpretation. The learned Judge found it difficult to be bound in the yean 1949 by decisions dating from the year 1899 as regards the interpretation of Section 132 of the Code. If he meant that a decision holding that a woman of a particular community ought not to be compelled to appear in public according to the customs and manners of the country then prevailing cannot be binding for all time as regards women of that community, I agree. But once the question of fact-is decided and it is found that a particular woman falls within the class mentioned in Section 132(1), I fail to see why we should disregard the interpretation of the scope of the provision by learned Judges in 1899.

5. I am also unable to agree with the learned Judge in taking judicial notice of a complete change in the customs and manners of the Muslim community in the State of Madras asregards the custom of gosha. Though it is true that there are instances of Muslim ladies taking part in public life and following professions like law and medicine and though it is also true that the custom ia not being observed as strictly as before, I think it would be rash to hold that the custom of gosha has become obsolete and has been entirely abandoned by the Muslim community in the State of Madras. Exceptions only emphasise the general rule and do not abrogate it, A difficult question might arise in the case of a woman who belongs to a community which still observes gosha generally, but who has herself completely abandoned that custom. Is such a woman entitled to the exemption under Section 132(1)? In Elias Joseph Solomon v. Jyotsna Ghosal, 45 pal. 492 : A. I. R. 1918 Cal. 111, Greaves J. held that Section 132(1) would cover the case of a woman who belongs to a class and community observing purdah, but who has abandoned it. In the case before him, there was evidence that the lady had entirely abandoned the protection of the purdah and was accustomed to freely appear in public and go about in society. Nevertheless, the learned Judge thought that she ought not to be compelled to appear in the witness box, because regard should be had to the feelings of her class. In Kissenlal, v. Purushothamdas : AIR1942Cal143 , a lady who was found as a fact to be a purdanashin lady was held to be entitled to the exemption under Section 132(1), though she did not observe strict purdah and often went out in public and even attended Court. But in Balakeshwari Debi v. Jnananda Benerjee, 48 Cal. 697 : A. I. R. 1918 Cal. 748, a Division Bench was inclined to make an exception in the case of a lady who though she belonged to a community which observed gosha had herself completely abandoned that custom. They said:

'No doubt, a purdhanashin lady completely may alter her mode of life, and cease to be included in the statutory description of ''women, who, according to the customs and manners of the country, ought not to be compelled to appear in public'. When this transformation has taken place, she can no longer claim, as of right, the statutory exemption formulated in Section 132.'

6. In the particular case before them, the learned Judge thought that mere previous appearance in public would not amount to such a transformation as to deprive her of the statutory protection. I refrain from expressing my final opinion on this point, because it does not arise in this case. Mr. Jagadisa Aiyar for the petitioner conceded that the respondent not only belonged to a community observing gosha, but also that she herself was a pardanashin lady. I am, however, inalined to take this circumstance, namely, a change in the mode of life of a particular lady, into consideration in exercising discretion in the grant of a prayer from her for being examined on commission.

7. There has been some divergence of opinion as to the meaning of the words 'personal appearance'. Lort-Williams J. in Bilasroy Serowge3, In re, : AIR1929Cal528 construed appearance to mean coming forth into view or becoming visible to the public gaze. He, therefore, understood Section 132(1) as providing that a lady who according to the customs and manners of the country ought not to be compelled to appear in public shall be exempt from personal appearance in Court, i. e., from being exposed to the public gaze, but such person was not exempt from attendance in Court. This distinction of bis between 'appearance' and 'attendance' hag not found general acceptance, though Blagden J. in Mariambai v. Abdul Hamid A. I. R. 1946 Bom. 840 ; 225 I. C. 493 was inclined to think that there was come difference between 'attendance' and 'appearance'. Personally I think that whatever difference there might be, etymologioally the Code does not appear to make any distinction between the two. In Order 26, Rule 1 there ia reference to persons exempted under the Code from 'attending the Court' obviously referring to persons coming within the classes mentioned in Sections 132 and 133 who are exempted from appearance in court: vide also Kissenlal v. Purushothamdas : AIR1942Cal143 , Sunder Devi v. Dattatraya Narhar : AIR1933All551 and the observation of Mack J. in Salma Bi v. Mohamed Ebrahim Sahib : AIR1950Mad151 .

8. The next question relates to the issue of a commission to examine a person who falls within the class of women described in Section 132(1). There is preponderance of authority that a commission should issue as a matter of course, almost as of right both when such a person is a party to a suit or petition as well as when she is a witness summoned by any of the parties to a suit. There are three decisions of single Judges of this Court taking this view, namely, Vellai Naohiar v. A. K. R. M. Meyappa Chetti : AIR1925Mad905 (Srinivasa Aiyangar J.), C. R. P. No. 1345 of of 1948 (Chandra Reddi J.) and C. R. P. No. 1072 of 1948 (Raghava Rao J.). In Sunder Devi v. Dattatraya Narhar : AIR1933All551 , Niamatullah and Eachapal Singh JJ. held that the exemption from personal appearance under this section is a right which no Court has power to refuse and applies to parties as well as witnesses and that it was a right of a pardanashin lady to say that if she is to be examined, her statement should be takenon commission. No reported case has been brought to oar notice in which it has been held that the Court can, in the exercise of its discretion refuse to issue a commission to a woman falling within the exempted class, except of course, when the Court ia convinced that the application for her examination is made mala fide and would amount to an abuse of the process of the Court. Personally speaking I am inclined to make another exception. The Court can refuse to grant the application of a woman who though she may belong to a community which observes gosha has herself abandoned the custom, to be examined on commission, when she is herself a party to the suit. In such a case, there is no question of the Court compelling her to give evidence. If she wants to support her case, with her own evidence there is no reason why she should be given the indulgence which she does not deserve and I may add that no decision has gone to the length of holding that the Court cannot permit such a person to give evidence in Court.

9. The question still remains if there cannot be found some way to enable the trial Judge at least to listen to the evidence of such a person without infringing her right under Section 132(1) of the Code. Obviously, when such a person submits to an examination on commission, she also submits to appearance (though under a purdah) before the Commissioner appointed to take her evidence, counsel on either side and the parties, probably others instructing counsel. To this extent, it is clear that she is willing to give evidence before strangers. If so, I fail to see why she should refuse to give evidence outside her residence before the same persons as in a commission except that the trial Judge would take the place of the Commissioner. She cannot decline to be examined at any placa other than of her own choice. Khitipati Roy v. Dharani Mohan, 48 Cal. 448 : : AIR1921Cal229 . As indicated in a recent judgment of the Bombay High Court in Mariambi v. Abdul Hamid : AIR1946Bom340 : 225 I. C. 493 there could be no conceivable objection on the ground of an encroachment on the right conferred by Section 132(1) to the trial Judge himself taking evidence, say, in the residence of such a person. In the case before us, the respondent is apparently quite willing to go to the house of the counsel for the petitioner and give evidence before a Commissioner. On principle, I see no difference between the house of the opponent's counsel and the Chambers of the trial Judge. In both oases the lady has to leave her house and go to another place. The general public can be shut out from the Judge's Chambers as effectly as, if not more than, from the residence of theopposing counsel. This would be equally so even if the examination takes place in the court-room itself, but after excluding the generel public from it altogether. During the examination except the trial Judge and Officers of Court and the counsel and parties, others would not be present. There is virtually no difference between such an examination and an examination on commission. But such a course would have the great advantage of enabling the trial Judge to listen to the deposition. I venture to think that such a course would not infringe the provision of Section 132(1) of the Code.

10. Coming to the present case, I am not certain if the order of the lower Court was made by consent. If so, it must stand. Otherwise I modify the order of the lower Court by directing the respondent to be examined either in the Chambers of the Munsif or in the court-room after excluding the members of the general public.

Viswanatha Sastri, J.

11. I entirely agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //