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Balakeshwari Dabi Vs. Janananda Banerjee - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in41Ind.Cas.610
AppellantBalakeshwari Dabi
RespondentJanananda Banerjee
Cases ReferredHem Coomaree Dassee v. Queen
Excerpt:
civil procedure code (act v of 1908), section 132, sub-section 1 - pardanashin lady, appearing in court to institute criminal complaint, whether loses exemption from personal appearance in civil court. - .....lady is not entitled as of right to be exempt from personal attendance in court, although, as a matter of prudence, she should not be compelled to appear. but, whatever may be the exact rule of procedure applicable to criminal cases, the true scope of section 132 of the civil procedure code is not open to serious discussion. we are, consequently, of opinion that in the present case the application by the lady to be examined on commission should not have been opposed in the court below or in this court, and we cannot but express our surprise that a person in the position of the opposite party should have thought it proper to take up and maintain such an attitude.3. the result is that this rule is made absolute. we direct that a commission do issue for the examination of the.....
Judgment:

1. We are invited in this Rule to set aside an order, whereby the Subordinate Judge has refused an application for the issue of a commission for the examination of the petitioner, who is a pardanashin lady, The petitioner moved the Court below to institute proceedings under the Legal Practitioners Act against the opposite party, who is alleged to have acted as her Pleader. On the 6th June last, she applied to be examined on commission in support of her allegations. The application was opposed on the ground that as the applicant had appeared before the Criminal Court on the 2nd June to institute a complaint against one Bhakta Das, she should appear before the Subordinate Judge and be examined in Court. The Subordinate Judge thereupon refused the application. In our opinion the order cannot possibly be supported.

2. Section 132, Sub-Section 26 C. 651 : 3 C. W. N. 750 : 13 Ind. Dec. (N.S) 1018, of the Civil Procedure Code, 1908, provides that women, 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. It is not disputed that the petitioner is a pardanashin Hindu lady, and, according to the customs and manners of the country, ought not to be compelled to appear in public. The question consequently arises, whether she has forfeited the exemption she enjoys under Sub-section (1) of Section 132, by reason of the fact that she has appeared in a Criminal Court to institute a complaint; on that occasion, the Court-room was cleared and she was examined in camera. In our opinion, the question should be answered in the negative, in accordance with the principles explained by this Court in the oases of Chamatkar Mohiney Dabee v. Mohesh Chunder Bose 26 C. 651n : 3 C. W. N. 750 : 13 Ind. Dec. (N.S) 1018 and Mohesh Chunder Addy v. Manick Lall Addy 26 C. 650 : 3 C. W. N. 751 : 13 Ind. Dec. (N.S) 1017. In the earlier of the two cases, Mr. Justice Trevelyan observed that he should be exceedingly careful before he forced into the public gaze a woman, even though she might have gone outside the parda once, either by way of experiment or otherwise. In the second case, Mr. Justice Stanley ordered a commission to issue, although it was established that the lady had on a previous occasion appeared in Court and was examined seated inside a palanquin. The Subordinate Judge has overlooked the obvious distinction between the voluntary and the compulsory appearance of a pardanashin lady in Court to be examined as a witness. No doubt, a pardanashin lady may completely alter her mode of life, and cease to be included in the statutory description of a woman 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. But if she is, in fact, a pardanashin lady she is not deprived of the statutory protection, merely because she may have previously appeared in public. It is not necessary for our present purpose to investigate exhaustively the law applicable in this respect to criminal cases; but, as the Subordinate Judge has relied upon the fact of the voluntary appearance of the petitioner in a Criminal Court, to her detriment, we may point out that, as regards criminal cases, there has perhaps been a slight divergence of judicial opinion on the question of the examination of pardanashin ladies on commission. In this Court, it has been sometimes maintained In the matter of Harro Soondery Chowdhrain 4 C. 20 : 3 C.L. R. 93 : 2 Ind. Dec. (N.S) 14. In re Din Tarini Debi 15 C. 775 : 7 Ind. Dec. (N.S) 1100; Abhoyeswari v. Kishori Mohan Banerjee 23 Ind. pas. 700 : 43. C. 19 : 18 C. W. N. 1020 : 15 Cr. L. J. 348; Hem Coomaree Dassee v. Queen-Empress 24 C. 551 : 1 C. W. N. 333 : 12 Ind. Dec. (N.S) 1036 that she is entitled to be examined on commission. In Allahabad, on the other hand In the matter of the petition of Farid-un-nissa 5 A. 92 : A. W. N. (1882) 184 : 3 Ind. Dec. (N.S) 109. In the matter of the petition of Basant Bibi 12 A. 69 : A. W. N. (1889) 202 : 6 Ind. Dec. (N.S) 794, it has been said that a pardanashin lady is not entitled as of right to be exempt from personal attendance in Court, although, as a matter of prudence, she should not be compelled to appear. But, whatever may be the exact Rule of procedure applicable to criminal cases, the true scope of Section 132 of the Civil Procedure Code is not open to serious discussion. We are, consequently, of opinion that in the present case the application by the lady to be examined on commission should not have been opposed in the Court below or in this Court, and we cannot but express our surprise that a person in the position of the opposite party should have thought it proper to take up and maintain such an attitude.

3. The result is that this Rule is made absolute. We direct that a commission do issue for the examination of the petitioner in accordance with law. As the Rule has been opposed, the petitioner will have* her costs in this Court. We assess the hearing fee at two gold mohurs.


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