1. In this case the petitioner, Sm. Madan Mohini Debi, who is a defendant in Suit No. 1739 of 1940 has asked that she may be examined on commission in view of the fact that she is a pardanashin lady. The petitioner bases her application on Section 132 (1), Civil P.C, which is in the following terms:
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.
2. She also relies on Ordder 26, Rule 1 of the Code which is to this effect:
Any Court may in any suit issue, a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the Court or who is from sickness or infirmity unable to attend it.
3. On behalf of the opposite party it is urged that Order 26, Rule 1 of the Code merely confers a discretion on the Court as regards the issue of a commission in a case such as this, and that this discretion should not be exercised in view of the fact that the applicant does not observe strict pardah that she often goes out in public and even attends Court. In her affidavit in reply the petitioner has stated that it is not correct to say that she does not observe pardah or that she goes out in public Further she maintains that, when it is necessary for her to go to the Court premises for the purpose of signing documents and transacting similar business, she does not leave her private car. On the affidavits, I am of opinion that it must be held that the petitioner is in fact a pardanashin lady, and the only question which arises for consideration is whether, in these circumstances, she should be regarded as exempt from attendance in Courts and should be examined on commission.
4. There can, in my opinion, be no doubt, in a case of this nature that it is certainly desirable that the petitioner should give her evidence in Court and that she should be subjected to cross-examination as an ordinary witness. It is however argued on her behalf by Mr. Clough that Section 132 of the Code confers a right upon her to be exempted from personal attendance in Court and that it follows that it is necessary in the ends of justice that she should be examined on commission in order that her evidence may come on the record. Learned Counsel for the opposite party places considerable reliance upon the decision of this Court in the case in Nusrut Banoo v. Mahamed Sayem ('72) 18 W.R. 230. In that case it was pointed out that the appellant should have been examined in Court. On this point the learned Judges stated:
A pardanashin lady is frequently examined in Court in a palkee or otherwise on a proper identification, and there in the presence of the parties and the pleaders and with all the advantages attending the examination of the witness in open Court, she, at whose command was the best knowledge of the facts, could have been examined in a full and satisfactory manner. There should have been no examination by commission in such a case as this.
5. It is curious that the learned Judges who decided Nusrut Banoo v. Mahamed Sayem ('72)18 W.R. 230 did not refer to the relevant provisions of the Code of Civil Procedure, which was in force at the time, namely, Act 8 of 1859. The language used in Section 21 of the Code of 1859 was precisely similar to that which has been employed in Section 132 (1) of the present Code, and if Section 21 has been compared with Sections 22 and 175 of the Code, it would, I think, have been difficult to escape from the view which was adopted in several later cases in this Court to the effect that a purdanashin lady should not be compelled either to appear in Court personally or attend Court even although she may have failed to observe the restraints of the pardah system on previous occasions. This was the view which was followed by Stanley J. in Mohesh Chunder v. Manik Lall ('99) 26 Cal. 650 and also by Greaves J. in E.J. Soloman v. Jyotsna Ghoshal ('18) 5 A.I.R. 1918 Cal. 111. The leading cases on this point were reviewed by Mookerjee and Walmsley JJ. in Balakeshwari Debi v. Jnananda Banerjee ('18) 5 A.I.R. 1918 Cal 743. In that case the learned Judges observed that a pardanashin lady may completely 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. 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.
6. In a later case, Serowgee's case In re Bilasroy Serowgee ('29) 16 A.I.R. 1929 Cal. 528, Lort-Williams J. stated:
I am of opinion that the correct meaning of Section 132 (1), Civil P.C., is that a lady, who according to the customs and manners of this country ought not to be compelled to appear in public, shall be exempt from personal appearance in Court, that is, from being exposed to the public gaze-such a person is exempt not from attendance in Court but from appearance in Court. I think 'appearance' means that she shall not be compelled to come forth into view or become visible to the public gaze.
7. It will be seen from Serowgee's case In re Bilasroy Serowgee ('29) 16 A.I.R. 1929 Cal. 528 that Lort-Williams J. draws a distinction between 'appearance in Court' and 'attendance in Court' but in my view the expressions really mean the same thing. In Order 26, Rule 1 of the Code reference is made to a person 'who is exempted under this Code from attending the Court.' This portion of the rule can only refer to the exemption granted by Sections 132 and 133 of the Code. It appears from the language which has been used by the Legislature that women who according to the customs and manners of the country, ought not to be compelled to appear in public have as regards personal appearance, been placed in the same category as persons who are exempted from personal appearance by reason of their rank under Section 133. It cannot be contended that persons who fall within the latter category, although they need not appear in Court, may be compelled to attend Court, and in my opinion the correct view with regard to this matter has been adopted by the Allahabad High Court in Sunder Debi v. Dattatraya Narhar : AIR1933All551 . In that case Rachhpal Singh J. disagreed with the view expressed by Lort-Williams J. in In re Bilasroy Serowgee : AIR1929Cal528 and he pointed out that:
If a pardanashin lady observing strict parda is ordered to attend the Court, it means that she is 'compelled to appear in public' Her face may be covered or she may be wearing a burka, but all the same she is compelled to appear in public if she is ordered to attend the Court. This is against the spirit of Section 132, Civil P.C. In families in which ladies observe strict parda it is considered most objectionable for them to appear in public even with their faces covered. I am of opinion that the words 'personal appearance' used in Section 132 mean 'personal attendance.'
8. Having regard to the considerations stated above this application must be allowed and it is directed that Mr. B.K. Ghose be appointed Commissioner for the examination of Sm. Madan Mohini Debi. The costs of the commission and costs of this application will be costs in the cause. The commission will issue as expeditiously as possible and is returnable one month from the date of issue.