Salma Bi Vs. Mohammed Ebrahim Sahib - Court Judgment

Mack, J.

1. The petition raises an interesting question of the scope of Section 132, Civil P. C., and the extent to which purdanashin ladies and in particular Muslim ladies are exempt from personal 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 [9] 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 hen witnesses and watching their demeanour. The respondent who is the husband sought to be divorced makes no appearance on this petition.

2. 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 under Section 132, Civil P. C., all Muslim women and purdanashin 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.'

3. The earliest decision placed before me of the year 1899 is Mohesh Chander Addey v. Manick Lall Addey, 26 cal. 650 : 3 C. W. N. 751 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.

4. The next decision in chronogical sequence placed before me is Vellai Nachiar v. Meiyappa Chetti : AIR1925Mad905 by Srinivasa Aiyangar 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. Dattatraya Narhar, 55 ALL. 666 : A. I. R. 1933 ALL. 651 which laid down that the exemption of pardanashin 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' under Section 132 meant personal attendance in Court. The same view has been taken by Cammainde and Ghose JJ. in Rahimanessa Bibi v. S.K. Halim : AIR1928Cal814 . 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 Kissin Lal Kankaria v. Purshottam Das Halwasiya : AIR1942Cal143 . This followed the Bench decision of the Allahabad High Court in substance, and held that a purdanashin 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 In re Bilasroy Serowjee : AIR1929Cal528 , 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.

5. 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 P. C., which is essentially based on 'the customs and manners of the country'. As I read Section 132(l) 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 purdanashin 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 today. Customs and manners of a country are always changing. There can be no doubt that as regards the purdha custom 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(l), 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 100 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 pardanashin 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 pardanashin 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.

6. 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 purdah 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 purdanashin 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.

7. 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 a transitory condition. The view that I am inclined to take is as customs and manners of the country stand today no Muslim lady or purdanashin lady has an absolute right to claim exemption from personal appearance in Court. I would not go so far as to say that no purdanashin 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 for several years ago in this 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.

8. The learned District Munsif in his order referred to the case of Bilesroy Serowjee : AIR1929Cal528 , and the observations of Lort-Williams J., with which, with respect, I entirely agree that the examination of purdanashin 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 purdanashin 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 purdanashin ladies cm claim complete exemption from any appearance in Court. I see no grounds for any interference with the order passed by the learned District Munsif 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.