P L D 1994 Karachi 372 (PLP)

MAMOON KAZI, J.‑‑The appellant is plaintiff in Suit No. 27/199( which she has filed against one Shahid Rasool Jan. The appellant filed Miscellaneous Application (C.MA. No.894/1992) requesting that she being "very strict Pardanahin lady" should be exempted from appearance before the Court and her evidence may be recorded on commission. It was also urged or her behalf that she had given birth to a child and, therefore, she was unable to attend the proceedings before the learned Single Judge. The appellant was also apprehensive about some indecent questions being asked in Court during her cross‑examination. However, none of the said grounds found favour by the learned Single Judge who dismissed the application. The only ground urged before us by the learned counsel for the appellant is that she being a Pardahnashin lady should have been exempted from appearance before the Court. Mr. Gauhar Ali Shah Gilani, learned counsel for the appellant, has firstly argued that she being a Maim woman cannot compelled to appear before the Court in view of what has n ordained by Almighty Allah in Srah Al‑Nur enjoining: upon believing women to restrain their gaze and guard their private p d not to display their adornment except that which is displayed of itself, and to draw their veils over their bosoms. Support has also been sought by the learned counsel from Section 132 of the Civil Prure Code which provides s follows:‑‑

132. Exemption of certain women from personal appearance ‑‑(1) ':4p Women who, according to the customs and manners of the country, ought not to be compelled to appear in public shall be exempt from fags ‑ personal appearance in Court. (2) Nothing herein contained shall be deemed to exempt such women from arrest in execution of civil process in any case in which the arrest of women is not prohibited by this Code." Learned counsel has also called aid some judgments earlier given on t le point in Nathumal Chandumal v Haribai (AIR 1935 Sindh 205), Mst. Faiz Bibi v. Shafi Muhammad (PLD 1955 Sindh 368), Rahuria Ramkali Ker v. Chhathoo Singh (AIR 1961 Put. 210) and Sm. Sundar Devi v Dattatraya Narhar Rege and another (AIR 1933 All. 551). In all the said cases it was unequivocally held that the provisions of section 132, C.P.C. are mandatory and the Court was bound to issue commission far recording evidence of a Pardanashin lady. The question which, however, requires determination is whether every woman who claims to be a Pardahnashin lady would be entitled to exemption as enjoined by section 132, C.P.C. It is pertinent to point out that in the affidavit filed on behalf of the appellant all that the appellant had claimed in paragraph 3 of the said affidavit was that she was a Pardahnashin lady. It is pertinent to point out that the expression Pardahnashin lady has no where been defined either in the Civil Procedure Code or in any other enactment. Mr.Gilani has in fact not made reference to any such enactment before us. Section 132, C.P.C. which Mr. Gilani has invoked provides that women who according to the customs and manners of the country are not to be compelled to appear in public, shall be exempted from personal appearance in the Court. A plain reading of section 132, C.P.C., therefore, indicates that it must first be established by the woman seeking exemption under the said section that either according to the customs being followed in her country or manner she ought not to be compelled to appear in public. However, the appellant evidently has failed to make such claim in the affidavit filed on her behalf. To say that she was a Pardahnashin lady was not sufficient because a question arises whether she was compelled by any custom or any belief, may it be religious or otherwise, not to appear in public and seek exemption from personal appearance. From simply saying that the appellant was a Pardahnashin woman it does not automatically follow that she was compelled by any such reasons not to appear in public. No doubt, in the cases relied upon by Mr. Gilani, it has been held that the provisions of section 132, C.P.C. are mandatory in nature. However, it must first be established that the case of the applicant really falls within the purview of section 132, C.P.C.. Since, as just pointed out, the appellant has failed even to assert in her affidavit that either it was on account of any custom being followed by her family or for any other reason that the applicant was entitled to invoke section 132, C.P.C., the learned Single Judge, in our opinion, has rightly dismissed her, prayer. We consequently find no force in this appeal. In the result, this appeal is dismissed as no other ground has been urged by the learned counsel. The parties are left to bear their own costs. AA./N‑531/K Appeal dismissed.