MARIAMBAI Vs. ABDUL HAMID SULEMAN

JUDGEMENT

(1.) This is a summons by the plaintiff in the suit for her examination de bene esse on two grounds: first, that she is a woman who, according to the custom and manners of the country, ought not to be compelled to appear in public 5 and, secondly, on the ground that she is seven months gone in pregnancy. I need say nothing; about the merits of the case, except that it is obvious from the nature of the plaint that the plaintiff herself is a most material-I might almost say vital-witness, which makes it very desirable that, if possible, her evidence should be heard by the learned Judge who tries the case himself.

(2.) I shall deal first with the second of the two grounds on which the present summons is based. The defendants have adopted what seems to me a very reasonable attitude in this case, and they say that they are quite prepared that the hearing of the suit should be adjourned for, say, three months, or such other period as will enable the plaintiff to have completely recovered from the effect of giving birth to the present child and not yet to be concerned with producing another. That would completely meet the case except for one fact, which is that a child birth, at best, is a transaction entailing a certain amount of danger, and it may be that the plaintiff may desire to be examined de bene esse on the ground that she may possibly be permanently incapacitated from giving evidence as a result of what she is about to do in two months time. I should be prepared to make an order on this ground if the plaintiff thinks it worth while to have it. I would give her, say, three weeks to consider whether she would like to be examined de bene esse in view of the risk of child birth. If she decides to take the order for de bene esse examination on that ground, it would be on the terms that if at the trial the plaintiff is still alive, her deposition is not to be read without the leave of the trial Judge. If, on the other hand, she unfortunately dies and the suit is continued by her personal representatives, then of course her deposition will be available for what it is worth.

(3.) But the other ground, on which this order is sought raises a question of much more general importance and one on which apparently there is no reported decision of this Court, though it has been considered at least once in Allahabad and Madras and on a number of occasions in Calcutta. Section 132(1) of the Civil Procedure Code says: Women who, accoidtag 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. It is interesting to compare the wording of that section with that of Order XXVI, Rule 1, which empowers the Court to issue a commission for the examination of any person resident within the local limits of its jurisdiction who is exempted under the Code from "attending the Court," In Bilasroy Serowgee, In re (1929) I.L.R. 56 Cal. 865, Mr. Justice Lort-Williams took the view that " personal appearance in Court" means a different thing from " attending in Court" and that a woman cannot be said to be "personally (appearing" in Court when she is in a paid, or veiled completely in a burkha, or otherwise so enclosed that no part of her anatomy is visible to the public gaze. If the matter were res Integra, I think I should agree with the learned Judge, because the Legislature having used two different expressions the Legislature presumably intended to convey two different shades of meaning; though this view does involve this serious difficulty that in the very next section to Section 132, namely, Section 133, the Legislature has used the words "personal appearance" obviously as synonymous with (" attendance." Mr. Justice Lort-Williams however appears to be in a minority of one among the learned Judges in this country who have considered this question, because in all the other cases which are very fully reviewed in the last reported case, a decision of Mr. Justice Edgley in Kissen Lal Kankoria V/s. Purshottam Das Halwasiya [1941] 2 Cal. 155, the two phrases have been considered synonymous, and I think this body of authority is so strong that I must regard it as settled that they are. That, however, does not conclude the matter. I have to ask myself what women, according to the customs and manners of this country, " ought not to be compelled to appear in public," and if so whether the plaintiff has satisfied me that she is one of them. The matter stands thus: I am entitled to take judicial notice of the fact that among the Muslims and some other communities a considerable number of women observe purdah, some less strictly than others: but also that, women of the plaintiff's community-she is a Kutchi Memon-often do attend Court (veiled) and give evidence. It is common ground that the plaintiff here does observe purdah, but it is disputed how strictly she does so. Her husband, who has made the only affidavit in support of the summons, deposed that she " has never appeared in public." That cannot be literally true. Strictly construed, it means that she has never, since the day of her birth, left the place of her birth. Of course, that cannot be what the deponent intends to convey. What, I think, he means is that she has never exposed herself to the public gaze, that if and when necessity compelled her to go out into the public street, she has always gone as completely covered as the circumstances reasonably permitted, and that she did not, without necessity, go in public places. As against that, it is not disputed that she attended this Court on one occasion, when the plaint was sworn, and she attended two different offices in, this Court, that of the Interpreter and that of the Officer before whom she swore her plaint. It has been pointed out by Mr. Somjee that Mr. Justice Edgley considered a very similar point an the case to which I have just referred, and what is more, in the two earlier Calcutta cases similar facts have been considered. For (example, in the earliest of them, Chamatkar Mohiney Dabee V/s. Mohesh Chunder Base (1892) I.L.R. 26 Cal. 651n, Mr. Justice Trevelyan said (p. 651n): ... I should be exceedingly careful before I forced into the public gaze a woman who may have gone outside the purdah either by way of experiment or otherwise. Many a woman may desire to taste the sweets of unsecluded life and have gone out of the purdah, and may desire to go back. Because a woman may once or twice have gone outside the purdah is the Court to keep her outside ? The mere fact that the plaintiff has attended this Court, possibly by mistake as to what she ought to do-but I do not feel at all convinced of that-cannot, in itself, compel me to refuse her the relief which she now seeks. The question, however, remains, whether on this evidence, and in the face of Section 132, I am necessarily bound to make an order for her examination either de bene esse or on commission merely on the ground that she is a strict observer of purdah. Such an order has been made on that ground by this Court in one case which has not been reported but the record of which has been produced to me, and Mr. Somjee tells me that he is informed by his professional clients, the solicitors concerned, that it was contested; but I do not know what the facts on that occasion were. It is, as I say, eminently desirable, if at all possible, that the learned Judge who tries the case should hear this lady. Even if it is not possible to observe the lady's countenance while she gives her evidence, he will at least have some opportunity of observing her demeanour for himself, as for example, noting the hesitancy or lack of hesitancy with which she answers the questions put to her. Should I by refusing to make an order for her examination on commission be compelling her to appear in public ? The answer is, I think, " No." Nothing that I say now is to prejudice in any way any application she may choose to make to the trial Judge to examine her himself at her own place of residence, or, if he is not willing to do that, in his private Chamber. The question does not seem to have been before considered whether the expression "in Court" in Section 132 means " in the Court room " i.e. the room in the Court building where the Court sits in public, or whether it includes any part of the Court building, In this connection Mr. Somjee pertinently referred me to Section 133, which provides for the exemption of persons of exalted rank from personal appearance in Court, in which, I suppose, undoubtedly the words " in Court" mean " in the Court building ". If a person is exempted on the ground of rank from attending in Court, I could not, I presume, compel him to appear in my private Chamber, but I do not wish to express any positive opinion on that point. However that may be, I do not think (apart from the authorities) that a woman who is conveyed to the Court building in some suitably curtained vehicle and then escorted to a private room in that building, suitably and completely veiled in; a burkah or some other garment, and is examined in a" private room, could be said to be making, " a personal appearance in Court". Literally, she would not be doing so if she were conveyed suitably veiled into the Court room. Granted, however, that on a true construction of the section she would be doing so, I see no reason to extend that construction still further, and apply it to an examination of a veiled woman in the privacy of a Judge's Chamber. There she will be, even to the Judge not an observable form, but only an observable voice. It is also open to doubt whether a private room where the Judge can hear her evidence is " Court" at all. But even if it is, and if, contrary to my own .belief, it would really offend the plaintiffs ideas of modesty , to attend in that room, it will still be open to the plaintiff, if she can, to persuade the learned trial Judge to proceed to her place of residence to take her evidence. The further point which requires to be noticed is that in many, though not all, of the cases to which I have been referred, the person it was desired to. exempt from personal appearance on the ground that she could not be compelled to come to Court was not a partly but a mere witness. A witness, in the ordinary course, is compelled to come to Court because a witness summons is served on him or her and he or she can be sent to jail if he or she does not obey then summons; but no such summons will be issued on the plaintiff if she cannot get the Judge to examine her privately, either in her own place of residence, or in the Judge's private Chamber. Nothing will compel her to give evidence at all... At most, she will lose her case, but if she chooses to lose her case rather than to have the Judge hear her voice, that is her affair. No compulsion is put on her at all.