SALMA BI Vs. MOHAMMED EBRAHIM SAHIB

JUDGEMENT

(1.) The petition raises an interesting question of the scope of section. 132 of the Civil Procedure Code 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.

(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 of the Civil Procedure Code 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.

(3.) The earliest decision placed before me of the year 1899 is Mohesh Chunder Addy v. Manick Lall Addy (1899) I.L.R. 26 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.