KATHEESAKUTTY Vs. IBRAYAN

JUDGEMENT

(1.) This is a petition to revise an order of the Munsiff-Magistrate, Quilandy dismissing the petitioners application for examining heron commission. She was the plaintiff in a Civil Suit and her application was refused on the ground that she had once appeared before a Sub-Registrar.

(2.) It is admitted that the petitioner is a Muslim Purdanashin lady. S.132(1) of the Code of Civil Procedure provides that women, who according to the custom and manners of the country, ought not to be compelled to appear in public, shall be exempt from personal appearance in court. The question for decision is whether the petitioner has forfeited the exemption she enjoys under S.132(1) by reason of the fact that she has once appeared in a public office. In my opinion, she has not. S.132(1) has come up for construction in several reported decisions and it has been held that unless it is shown that a Purdanashin lady has completely abandoned purdah, exemption from appearance cannot be denied. As pointed out in Balakeshwari Debi v. Jnanananda (ILR 45 Cal. 697) Courts should not overlook the distinction between the voluntary and compulsory appearance of a purdhanashin lady in court to be examined as a witness. The question in cases like the present one is whether the court can compel a purdanashin lady to appear in court. It was observed in the above case: No doubt a purdanashin lady may completely alter her mode of life, and cease to be included in the statutory description of women who according to the customs and manners of the country ought not to be compelled to appear in public. When this transformation has taken place, she can no longer claim, as of right, the statutory exemption formulated in S.132. But, if she is, in fact, a purdanashin lady, she is not deprived of the statutory protection, merely because she may have previously appeared in public. This decision is based on earlier decisions of the Calcutta High Court reported and referred to in ILR 26 Cal. 650. The High Court of Madras has also taken the same view in Mohammad Ismail Maricair v. Wazir Bibi Saheba ( AIR 1951 Mad. 311 ). I am in respectful agreement with the above view and I hold that in the absence of a finding that the petitioner had abandoned purdah, the court had no discretion to refuse the prayer. The order of the court below is therefore set aside and the court is directed to issue a commission for the examination of the petitioner, in accordance with law. The Civil Revision Petition is allowed but in the circumstances I make no order as to costs.