A. Nazeemunnisa vs Rasool Bee and Another

P.S. Narayana, J.—Heard Sri Ramesh, the learned Counsel representing Sri S.V. Bhatt.

The revision petitioner A, Nazeemunnisa aggrieved by the order made in LA. No. 443 of 2004 in O.S. No. 4 of 1999 on the file of the Additional Senior Civil Judge, Chittoor, filed the present civil revision petition.

The revision petitioner-the third defendant in the said suit filed an application LA. No. 443 of 2004 in O.S. No. 4 of 1999 under Order XXVI Rule 9 of CPC praying to examine the petitioner - Defendant No. 3 in cross-examination by appointing an Advocate Commissioner in the residence of the petitioner. The learned Judge recorded certain reasons and ultimately dismissed the application. Aggrieved by the same, the present C.R.P. is preferred,

The stand taken by the revision petitioner is that she being a Muslim lady and observing Parda, she could not be exposed to public and hence, such relief had been prayed for in the said application. The same was resisted by filing a counter. The reasons recorded by the learned Judge is that as the first respondent who is the plaintiff in the main suit came to the Court and deposed though she is a Parda observing woman, the petitioner who is DW. 1 in the main suit is at liberty to come to the Court and depose though she is a Parda observing Muslim woman and for that purpose there is no need to appoint Advocate Commissioner to record the evidence of DW.1 in cross-examination. The fact that petitioner is a Pardanashin lady is not in serious controversy. The ground on which the application was dismissed by the learned Judge is that the plaintiff though Pardanashin lady was examined in public Court and hence, the same principle to be extended to the revision petitioner also. Section 132 of the CPC (hereinafter in short referred to as ''the Code'' for the purpose of convenience) dealing with the examination of certain women from personal appearance reads as hereunder:

Exemption of certain women from personal appearance : -(1) 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) Nothing herein contained shall be deemed to exempt such women from arrest in execution of civil process in any case in which the arrest of women is not prohibited by this Code.

In Rahuria Ramkali Kuer Vs. Chhathoo Singh, , the learned Judge observed that on reading Section 132(1) along with Rule 1 of Order 26 of the Code of Civil Procedure, it is manifest that a woman, who according to the customs and manners of the class or section or community which she belongs ought not to be compelled to appear in public, can be examined on commission. This is a right which a Court ordinarily, cannot refuse. If the Court, therefore, is satisfied, having regard to the class or community to which she belongs, that she should not be compelled to appear in the witness box, she may be exempted u/s 132(1) of the Code from giving evidence in Court and the commission may be issued for her examination in terms of Rule 1 of Order 26 of the Code.

In Motibai v. Champalal AIR 1957 MP 184, the learned Judge while dealing with customs and manners of the country and duty of the Court u/s 132(1) of the Code observed that where an application is made to the Court that the applicant according to the customs and manners of the country ought not to be compelled to appear in public within the meaning of Section 132(1) of the Code, the Court should take evidence and ascertain the facts therefrom and, should not dispose the application in a summary manner and the trial Court has to give an opportunity to the parties about the customs and manners prevalent in the community of the applicant about the compulsion of women to appear in public and till the evidence is recorded on this point no final decision can be made by the Judge.

In Rahimannessa Bibi Vs. Sk. Halim, , a Division Bench of Calcutta High Court held that Section 132 of the Code recognizes the right of ladies who are behind the Parda according to the customs of the country to require that their evidence, if necessary, should be taken on commission. This is a right which the Court has no power to deny.

In Ayisha Beevi v. Bava Haji 1959 Ker.LT 1068, it was held that the petitioners are Moplah women belonging to a family of some status and according to the prevailing customs and manners they are Pardanashin women such women ought not be compelled to appear in public.

In Sundar Devi Vs. Dattatraya Narhar Rege and Another , while elaborately discussing the meaning of personal appearance and also Pardanashin lady and examination thereof held that a Court has no power to insist that a Pardanashin lady must attend and give evidence in Court. It is the right of a Pardanashin lady to refuse to attend the Court and to say that if she is to be examined, her statement should be taken on commission. She cannot be compelled to attend the Court either as a party or as a witness and a Court acts wrongly in insisting on personal attendance of a Pardanashin lady in the Court.

In Sreenivasa Aiyyangar Vs. Ranga Aiyangar, , also may be referred to.

The Division Bench of Madras High Court in Mohammad Ismail Maricair Vs. Wazir Bi Bi Saheba, , while dealing the aspect of customs and manners of the country and meaning thereof, and the criteria in relation thereto and also the difference between appearance and attendance held that the Court cannot in the exercise of its discretion, refuse to issue a commission to a woman falling within the exempted class u/s 132 of the Code except, of course, when the Court is convinced that the application for her examination is made mala fide and would amount to an abuse of the process of Court, or except when the application is made by the woman who is party to the suit who though belonging to a community observing gosha, has herself abandoned the custom.

In the light of the reasons recorded by the learned Judge, this Court is of the considered opinion that the impugned order cannot be sustained especially in the light of the fact that the learned Judge recorded that the revision petitioner is a Pardanashin lady but however the other Pardanashin lady had not insisted for such examination and hence petitioner''s request need not be considered in the light of the same. This approach adopted by the learned Judge in the considered opinion of this Court is totally erroneous and unsustainable. Hence, the impugned order cannot be sustained and accordingly the same is hereby set-aside.

The C.R.P. is accordingly allowed. No order as to costs.