Ayisha Beevi Umma and Another vs Ali alias Bava Haji

P.T. Raman Nayar, J.—I think the application of the petitioner-plaintiffs for their examination as witnesses on commission, ought to have been allowed. The petitioners are moplah women belonging to a family of some status, and it is notorious enough that, according to the prevailing customs and manners, they are purdahnashin women who ought not to be compelled to appear in public. It was alleged by the defendant, the divorced husband of the 2nd petitioner, that she was a person accustomed to appear in public - no such allegation was made with regard to the 1st petitioner. But the court below found against this allegation, and that being so, it follows that a commission should have issued under Or. 26, Rule 1, read with Section 132 (1) of the Code. This result follows from the very decision on which the court below has relied in dismissing the application, namely, 1950 II M. L.J. 385, and the circumstance on which that decision turned, namely, of the gosha woman in question, who was a party to the suit, having abandoned gosha and being willing to go to the house of counsel for the opposite party to be examined on commission, does not here obtain.

I allow this petition and grant the application of the petitioners with costs here and in the court below.