14. A woman may have entirely abandoned the protection of the parda in her father's place, and yet she may be exempted under Section 132 of the Code from giving evidence in court, if the court is satisfied, having regard to the class and community to which she belongs that she should not be compelled to appear in the witness box. The court below, therefore, has misdirected itself in refusing the petitioner's application for being examined on Commission simply, because she does not observe parda in her father's place, which per se
is no ground for refusing to issue a commission.
different communities, classes and sections of the people in the country and not the customs
and manners of the country as a whole. Therefore, it would depend upon the facts of a case as
to whether a particular woman is protected under the said law. The court may ignore a
customs prevalent long back which has become completely obsolete
Patna High Court
Rahuria Ramkali Kuer vs Chhathoo Singh on 23 November, 1960
Equivalent citations: AIR 1961 Pat 210
Raj Kishore Prasad, J.
1. The sole question for determination, in this application, in revision, by the sole defendant, is, whether she should be allowed to be examined on commission?
2. The plaintiff brought the suit, out of which the present application arises, against the petitioner, for specific performance of a contract, based on a written agreement, alleged to have been executed by her. On the 29th September 1959, on the application of the petitioner, that she was a pardanashin lady, and, therefore, her specimen thumb-mark should be taken on commission, a commission was issued, and, the commissioner took her specimen thumb-mark at the house of her pleader, where she was then putting up for the time being.
3. In course of the hearing of the suit after the oral evidence of the plaintiff had closed, and the oral evidence of the defendant's witnesses had started, on the 24th April, 1960, an application was made by the petitioner, praying for her examination on commission, as she was a pardanashin lady. This application of the petitioner was rejected by the Court below on the 27th April, 1960 on the ground, that, although she is an old lady, yet, as "it has come in evidence that she does not observe parda in her father's village", she is not very strict about observance of parda. The petitioner, thereupon, obtained this rule from this court against the aforesaid order.
4. In support of the rule it was contended,
by Mr. Awadh Kishore Prasad, that because, the
petitioner was a pardanashin lady, and, when a
commission had been issued on a previous occasion
on that ground for taking her specimen thumb-
marks, the learned Munsif had acted with material
irregularity in not allowing also her present application to be examined on commission. He relied
on a decision of a learned Single Judge, of the
Calcutta High Court, Edgley J. in Kissinlal Kankaria v. Purshottamdas Hawasiya, AIR 1942 Cal
143.
In that case, on a review of the earlier decisions, including a Bench decision of that court, His Lordship held that a woman who is a pardanashin lady and observes strict parda, should not be compelled to attend the court, but should be examined on a commission if she so desires. He, further held that the words "personal appearance" in Section 132(1) of the Code, mean "personal attendance."
5. In reply, it was contended on behalf of the opposite party by Mr. Ramanand Sinha, that when the court had assured the lawyer appearing for the petitioner in the Court below that if she came to court to depose, it would be seen that no one entered the Court room and arrangement for parda would be made in court, there was no reason why she should not submit herself to be examined in court. It was further, contended that, in view of her defence that she was a lady of weak intellect and not capable of understanding things, the court wanted to watch her demeanour and to hear her
evidence in court itself, and, therefore, the learned Munsif was justified in refusing her application for being examined on commission.
In support of his contention, he relied on a Bench decision, of, the Madras High Court, in Mohammad Ismail Maricair v. Wazir Bi Bi Saheba, AIR 1951 Mad 311: ILR 1951 Mad 433, in which it was held that, when the court is convinced that the application for her examination made by a woman, who is a party to the suit, is mala fide and would, amount to an abuse of the process of the court, or, when the application is made by the woman who though belonging to a community observing gosha (Parda), has herself abandoned the custom, the court may, in the exercise of its discretion, refuse to issue a commission.
6. In order to decide the question, Under consideration whether the petitioner, should be allowed to be examined on commission as claimed by her, it is necessary to see the relevant provisions of the Code of Civil Procedure, hereinafter referred to as 'the Code' on this matter. They are Section 132(1) and Order 26, Rule 1, of the Code.
7. Section 132(1) reads thus-:
"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."
Section 132 applies to women who according to the customs and manners of the country, ought not to be compelled to appear in public. The expression "customs and manners of the country" occurring in Sub-section (1) of Section 132, means current customs and manners, not of the country as a whole, but, of the particular, community class or section to which the woman belongs. In order to determine whether a particular woman is or is not entitled to the benefit of Sub-section (1) of Section 132, the customs and manners of the community, class or section to which the woman belongs, prevailing at the time the court is called upon to apply it, should be the criterion and not the Custom and manners which might have prevailed years ago, but which had become completely obsolete. This section, as such, provides for exemption of pardanashin ladies from personal appearance in court.
8. The expression "personal appearance in court" occurring in Sub-section (1) of Section 132, means "personal attendance in court." That this is the true meaning of the words, "personal appearance in court", used in Section 132(1) of the Code is clear also from Rule 1, Order 26, of the Code where the words used are "attending the court". There is no difference therefore, between "appearance" and "attendance". Under Section 132(1) therefore a pardanashin lady cannot be compelled to attend court either as a parry or as a witness.
9. The next relevant provision of the Code, is Rule 1, Order 26, which is to the following effect:-
"Any court may in any suit issue a commission for the examination in 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."
10. The grounds upon which a commission can be issued are specified in Rule 1, with which we are concerned here, and, also in Rules 4 and 5 of Order 26. One of such grounds mentioned in Rule 1 when the court can issue a commission for the examination of any person is when he, or she, as the case may be is exempted under this Code from attending the court". Section 132 of the Code recognises the right of pardanashin ladies, who according to their custom, can claim the privilege of being examined on commission.
On reading Section 132(1), along with Rule 1, of Order 26, therefore, it is manifest that a woman, who according to the customs and manners of the class or section or community to 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 under Section 132(1) from giving evidence in Court and a commission may be issued for her examination in terms of Rule 1 of Order 26. The Court will not regard the case of a defendant, however with the same rigour as the case of a plaintiff.
11. The issue of a commission is a matter of judicial discretion of the court, depending on the facts of each case. A commission, ordinarily should issue for the examination of a pardanashin lady, unless her application for commission is mala fide, or would amount to an abuse of the process of the court, or it may result in manifest injustice to any party, or for other valid reasons, which the court may take into consideration in deciding whether the application on the facts of that particular case, should be allowed or refused.
The difference, however, between the examination of a witness on commission and a viva voce examination in open Court is so greatly to the disadvantage of the opposite party that the court should very jealously enquire, in every case, into the reason for the commission. It is also open to the Court to order the issue of commission on condition of the applicant depositing in court security for the costs of the opposite party in regard to the commission.
12. In the light of the above principles let us now examine the facts of the present case in order to see if the court below was justified in refusing the petitioner's application for being examined on commission.
13. There is no finding of the Court below that she is not a pardanashin lady; but what the court says is that she does not observe parda in her father's village, and, therefore, this shows that she is not very strict about the observance of parda. It is a matter of common experience that women generally do not observe parda, even if they are pardanashin ladies, to the same extent in their father's village as they do in their father-in-law's village. But that would not mean that they are not very strict in observance of Parda elsewhere before the members of the public so as to become visible to the public gaze.
14. A woman may have entirely abandoned the protection of the parda in her father's place, and yet she may be exempted under Section 132 of the Code from giving evidence in court, if the court is satisfied, having regard to the class and community to which she belongs that she should not be compelled to appear in the witness box. The court below, therefore, has misdirected itself in refusing the petitioner's application for being examined on Commission simply, because she does not observe parda in her father's place, which per se
is no ground for refusing to issue a commission.
15. Moreover, the court below itself accepted on an earlier occasion that she was a pardanashin lady, and, on that ground alone she was permitted So give her specimen thumb mark on commission. There is no dispute that she is an illiterate, old lady of the Rajput Community, which observes strict Parda. In these circumstances in my opinion, it would be doing violence to her sentiments and old age custom if she is forced to come to court for her examination in the present Case, notwithstanding the assurance of the court that she would be examined in the court where nobody else except the party, and the lawyers would be present, and, that she would also be given all sorts of Parda.
16. No doubt regard must always be had to the possibility of the witness not being a credible witness, in which case the opportunity of judging the veracity of the witness from his or her conduct and demeanour and of hearing the exact and precise answers given by him or her would be lost, and, this is specially so in a case where a party accused of fraud seeks to examine himself on commission, because, as observed in Satis Chandra Chatterji v. Kumar Satis Kantha Roy, AIR 1923 PC 73, all the advantage of confronting a witness accused of a fraud, with his accusers, is lost; but demeanour has an important value only when the evidence is evenly balanced, and, as such it is not so important as to take away the right to issue a commission under this rule in deserving cases.
In the instant case, the court below itself does not give the above ground for refusing the petitioner's application for being examined on commission. The contention of Mr. Sinha, therefore, in the absence of any finding of the court below that the petitioner's application was not bona fide or that in view of her defence, already indicated, it itself wanted her to be examined in court to note her conduct or demeanour in order to judge her veracity has no substance and must, accordingly, be rejected. In these circumstances, in my opinion, the court below has exercised its discretion with material irregularity in this particular case on the facts here, in refusing the application of the petitioner to be examined on commission.
17. On behalf of the petitioner however, it has been suggested that she will have no objection if she is examined on commission at the residence of her pleader, at the same place as was done on the previous occasion. This is, however, a matter for the court below to consider.
18. In the result, the application succeeds, the order of the court below refusing the petitioner's application for being examined on commission is set aside and her application for commission is allowed, and, the court below is directed to issue
a commission for her examination, as prayed for on
such terms as to costs of the opposite patty in
regard to the commission as it may think fit and
proper. There will, however, be no order for costs
of this court.
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