Jawahar Lal Gupta, C.J:— Is Section 56 of the Code of Civil Procedure which protects women from arrest or detention in execution of a money decree ultra-vires Articles 14 and 15? This is the short question that arises for consideration in this appeal. The learned single Judge having answered this question in the negative, the writ petitioner has filed the present appeal. The facts, as relevant for the decision of this case may be briefly noticed.
2. The appellant is a Government contractor. On March 24, 1995, he filed a civil suit for the recovery of Rs. 63,250/-. On November 10, 1998, the Subordinate Judge passed an ex parte decree for the amount of Rs. 63,250/- with interest at the rate of 18%. The appellant alleged that the judgment-debtor was staying in Chennai and that she does not hold any property. Thus, it was difficult for him to execute the decree. He further alleged that it would be impossible to “have a personal execution” by virtue of S. 56 of the Code of Civil Procedure. Thus, he filed a petition under Article 226 of the Constitution of India with the prayer that S. 56 be declared as unconstitutional.
3. The matter was considered by the learned single Judge. It was held that S. 56 has been on the statute for a long time. It fell within the ambit of Article 15(3). Thus, it is not unconstitutional. The writ petition was dismissed.
4. Aggrieved by the judgment, the writ petitioner has filed the present appeal.
5. Mr. Romy Chacko, learned counsel for the appellant has contended that the Code of Civil Procedure does not grant protection from arrest to a lady under various provisions like Order 21, Rule 32, Order 38, Rule 4 and Order 39, Rule 2-A. Thus, the provision for granting protection only in case of money decree makes the provision discriminatory and thus, invalid.
6. It is undoubtedly true that Order 21, Rule 32 provides for execution of a decree for specific performance and restitution of conjugal rights, etc. Under Order 38, Rule 4, the court has the power to commit a person to civil prison in case he or she violates the provisions of Rules 2 and 3. Similarly, a person who violates art injunction issued by the Court can also be sent to prison. The obvious purpose is to ensure that the mandate of the Court is complied with by everyone irrespective of the gender. The injunction granted by the Court has to be obeyed. By putting the defaulter in civil prison, the default is prevented. However, this by itself cannot mean that the legislature could not have granted even a limited protection. The basic issue is Does money decree stand on a different pedestal?
7. According to the traditional Indian thought, a woman's place was in the home. She had to know Chemistry so as to be able to cook. Her knowledge of Geography was confined to the four walls of the house. That is all. Thus, Indian women, till recently, were not even going to schools. Purdah is still being observed in certain parts of the country. As a result, they have been dependant on their husbands or parents for money. It appears that in view of the peculiar customs prevailing in the country, the legislature had recognised the economic reality and granted a limited protection to women while enacting S. 56. They were saved from the coercive process of arrest and detention in the execution of a money decree.
8. It is undoubtedly true that discrimination on the basis of sex alone is not permissible. However, in the present case, sex is not the sole basis. It is recognition of a reality. Still further, the Constitution makers had clearly laid down that it shall be permissible to make special provision for women. The protection afforded by S. 56 is a special provision calculated to ensure that a woman judgment-debtor is not put to the ignominy of arrest and detention in civil prison in execution of a money decree. In our view, this limited protection is clearly referable to the provision contained in Article 15(3) of the Constitution.
9. Mr. Chacko submits that there is no basis for such a provision when the Code itself permits arrest and detention of women under various provisions.
10. The contention cannot be accepted. Under the Code it is permissible to arrest and detain a woman who violates an injunction. It is also permissible to attach her property in case she does not carry out her obligations under a decree for restitution of conjugal rights. In both the situations, she faces the consequences of her own actions. However, keeping in view the prevailing customs, the legislature has considered it appropriate to grant women a special protection against arrest and detention in the execution of a money decree. The legislative object is basically to grant a limited protection. For this limited purpose, Article 15(3) protects the provision.
11. Learned counsel submits that no such exception has been made in the case of S. 25 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993. Thus, there is no basis for a differential treatment under S. 56 of the Code of Civil Procedure.
12. It is undoubtedly true that S. 25 does not provide for any special protection. However, there appears to be a clear rationale for it. The 1993 Act deals with recovery of debts due to Financial Institutions like Banks, etc. The amount involved has to be Ten Lakhs or more. The provisions of the Act are applicable where a person has taken loan from a public institution like a nationalised Bank, etc. Thus, in a case where a lady takes a substantial amount of money from a public institution, it is clear that she is engaged in some activity and is, thus, liable to the same process as any other judgment-debtor. In other words, when the two provisions are harmoniously construed, it is clear that the protection is not absolute. It would not be available when the judgment debtor owes money as much as Rs. 10 lacs or more, to a Financial Institution as contemplated under the 1993 Act. The dues under the Act have been treated differently. There is a clear basis for treating the public dues differently from the purely private. Thus, a differential treatment under S. 25 of the 1993 Act, without anything more would not make S. 56 ultra-vires.
13. No other point has been raised.
14. In view of the above, we find no merit in this appeal. It is accordingly dismissed.
Appeal dismissed.