Salma Bi vs Mohammed Ebrahim Sahib

Mack, J.—The petition raises an interesting question of the scope of section. 132 of the CPC and the extent to which purdhanashin ladies

and in particular Muslim ladies are exempt from persona] appearance in Court. The learned District Munsif of Tanjore, Sri S. Natarajan, dismissed

a petition by one Salma Bi who filed a suit in which she prayed for the divorce of her husband under Act IX of 1939, for the examination of herself

and some of her witnesses who like her were stated to be gosha ladies on commission. The District Munsif observed that every allegation which

can possibly be put forth in a suit for divorce had been set forth in the plaint. The cogent reason he gave for dismissing the petition was that the

''Court would lose the valuable opportunity of personally hearing the evidence of the plaintiff and her witnesses and watching their demeanour. The

respondent who is the husband sought to be divorced makes no appearance on this petition.

The learned advocate for the petitioner has argued the position at length, and cited before me authorities from the year 1899 to support his

contention that u/s 132 of the CPC all Muslim women and purdhanashin ladies can claim an absolute right for exemption from personal appearance

in Court. Section 132(1) reads as follows:

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.

The earliest decision placed before me of the year 1899 is Mohesh Chunder Addy v. Manick Lall Addy ILR (1899) Cal. 650 by Travelyan and

Stanley, JJ., of the Calcutta High Court. In allowing the application for the examination of a Hindu lady on commission Travelyan, J., made the

following observation:

On the materials before me, I think I shall be erring on the right side if I refuse to take away from her the privilege she is entitled to.

The ground on which the privilege was sought to be taken away was the fact that the Hindu lady had appeared in Court in 1884, where she was

examined in a palki as a result of which she was outcasted. Stanley, J., expressed himself averse to granting commissions for the examination of

witnesses not merely on account of expenses but also of their unsatisfactoriness. As he has observed

the laws of evidence are often not adhered to, and the advantage of viva voce examination before the Court is lost.

He however agreed that in that particular case a commission should be issued for the examination of the Hindu lady on commission without

compelling her personal appearance in Court.

The next decision in chronological sequence placed before me is Vellai Nachiar Vs. A.K.R.M.M. Meiyappa Chetty and Others, by Srinivasa

Ayyangar, J., in the year 1925. There the view was taken that a gosha lady who is not allowed to appear in. Court or in public places according to

the custom of her community cannot be compelled to appear in Court. This same view was taken by a learned Bench of the Allahabad High Court

in Sunder Devi v. Datta Traya Narhar ILR (1933) All. 666 which laid down that the exemption of purdhanashin ladies from personal appearance

in Court granted by Section 132 is a right which no Court has power to refuse and applies to parties as well as to witnesses. That decision went to

the length of holding that the words "" personal appearance "" u/s 132 meant personal attendance in Court. The same view has been taken by

Cammainde and Ghose, JJ., in Rahimannessa Bibi Vs. Sk. Halim, There is no Bench decision of our own High Court dealing with this matter. My

attention has been drawn to a decision of 1941 by Edgley, J., in Kisan Lal Karkorai v. Purshotham Das Halwasiya ILR (1941) Cal. 155 This

followed the Bench decision of the Allahabad High Court in substance, and held that a purdhanashin lady should not be compelled to appear in

Court personally or even attend Courts although she may have failed to observe the restraints of the pardha system on previous occasions. In

another case in Bilasroy Serowjee In re ILR (1929) Cal. 865 referred to by the learned District Munsif, Lort Williams, J., took the view that

appearance in Court was something different from attendance in Court. He made the following observation:

I think ''appearance'' means that she shall not be compelled to come forth into view or become visible to the public gaze.

It is not easy to differentiate between personal appearance and personal attendance.

It is however difficult to be bound in the year 1949 by decisions dating from the year 1899 as regards the interpretation of Section 132, Civil

Procedure Code, which is essentially based on ""the customs and manners of the country"".

As I read Section 132(1) it is not the custom and manners or habits of a particular individual lady which has to be taken into consideration or the

customs and manners of a family or a small community but the ""customs and manners of the country"" as a whole. The Calcutta decision of 1899 in

which Travelyan and Stanley, JJ., with obvious reluctance took the view, that purdhanashin women had the right of exemption from personal

appearance in Court was based on a state of affairs which is widely different from that that is in existence to-day. Customs and manners of a

country are always changing. There can be no doubt that as regards the purdha customs there has been a change which can almost be described

as revolutionary during recent years. Judges cannot but take judicial notice of Muslim ladies whose grandmothers lived in purdha appearing in

Court as advocates arguing cases with considerable ability. As I read Section 132(1) it was not intended to be a rigid rule lasting for all time or till

repealed intended to immobilise particular customs and manners. The interpretation of Section 132, as it appears to me, must depend upon the

customs and manners of the country as they have evolved at the time Courts are called upon to interpret it. It would not be stretching the language

of section too far to hold that the framers of the Act visualised a time in the future when the customs and manners of the country would so change

that they could not be regarded as in any way a. prohibition of appearance in public of purdhanashin ladies or their personal appearance in Court.

The view that I am inclined to take is that the change in the customs and manners of purdah and purdhanashin ladies has of recent times become so

great that the stage has been reached when a Court would be justified in saying that according to the customs and manners of the country women

can be compelled to appear personally in Court. In their own interests particularly as in the case of the present petitioner plaintiff seeking relief, it is

manifestly desirable that they should make a personal appearance before the Judge trying the case and give their evidence before him. The

petitioner in this particular case is taking advantage of progressive and comparatively recent legislation which enables a Muslim lady to obtain a

divorce from her husband, relief to which she was not previously entitled. I do not desire to handicap her in the prosecution of her suit by her and

her witnesses to be examined on commission by following judicial precedents which, with the greatest respect, I must consider to be out of date

and no longer binding.

A further consideration is that the state of purdah has itself undergone a considerable change from the hard rigidity of 50 years ago to a

comparatively lax state of purdha enforcement. In my own experience as District Judge for several years I do not recollect a single instance in

which I have allowed the examination of a purdhanashin lady on commission, particularly if she was a plaintiff or defendant, though if satisfied that

she was gosha, I took every precaution in Court to see that the Court was cleared of all but the learned advocates and the Court officials when she

gave her testimony.

In my opinion the time has come when Section 132(1) should be given a fresh judicial interpretation to accord with the customs and manners of

the country which have greatly changed, and may be described so far as the custom of purdha is concerned to be in a transitory condition. The

view that I am inclined to take is as customs and manners of the country stand to-day no Muslim lady or purdhanashin lady has an absolute right to

claim exemption from personal appearance in Court. I would not go so far as to say that no purdhanashin lady should be examined on commission.

Whether or not this should be done would depend upon the facts of each case, the position of the lady in the litigation, the nature of the evidence

she has to give and the circumstances in which she is placed. In a matter of this kind when the section itself is based on customs and manners of the

country which cannot but change it, is extremely difficult to fall back upon judicial precedents when customs and manners in public opinion as

regards them were widely different. If we judges continue to follow judicial precedents of several years ago in his matter without keeping abreast of

changing times we shall be exposing ourselves to the criticism of being janitars of the purdha system and acting as impediments in the way of the

emancipation of women from its confines.

The learned District Munsiff in his order referred to the case of In re Bilasroy Serowjee ILR (1929) Cal. 865 and the observations of Lort

Williams, J., with which, with respect, I entirely agree that the examination of purdhanashin ladies in Court can always be arranged with the

minimum of public appearance. I do not think I need give the learned District Munsif any further specific directions in the matter. This concession to

purdhanashin ladies of examining them in camera is one which can and should be made to them during this period of transition of changing customs

and manners. There is another type of case in which the appearance of purdha girls is absolutely necessary. I refer to the not infrequent cases in

which they are wards of the Court and the Court has often to see them and question them on matters affecting their welfare. It would be extremely

difficult to allow the extreme position taken by the learned advocate for the petitioner that according to the customs and manners of the country as

they exist in 1949 such pudhanashin ladies can claim complete exemption from any appearance in Court. I see no grounds for any interference with

the order passed by the learned District Munsiff who has merely adopted the same procedure I have invariably followed while trying suits as a

District Judge for many years without, I may say, so far as I can remember, any civil revision petition being filed against my orders disallowing

applications for examination of these ladies on commission. In the circumstances. I make no order as to costs.