' ROOH-UL-AMIN KHAN, J.--- Through this common judgment, we intend to dispose of instant writ petition as well as connected Writ Petition No,152 of 2010, titled, "Mst. Rozina Begum v. Nawabzada Muhammad Fateh Khan and others" as similar question is involved in both the petitions and both are emanating from the same consolidated judgment of the learned Additional District Judge, Mardan dated 25-11-2008, whereby accepting revision petitions filed by the respondents, the judgment/order of the learned Senior Civil Judge, Mardan dated 21-7-2009 has been set aside.
2. Brief but relevant facts forming the background of both the petitions are that the petitioner Mst.
Rozina Begum challenged the judgment and decree dated 13-11-1990, passed in Suit No,175/1 of 1990, under section 12(2), Civil Procedure Code, on the basis of fraud, misrepresentation and collusion. Similarly, she also filed an application for revocation of succession certificate issued in Case No,85/2 of 1994 qua debts and legacy of late Nawabzada Khalid Khan. Respondents in both the petitions were summoned, who contested the proceedings. In the meanwhile, petitioner Mst.
Rozina Begum filed applications through her counsel for recording her statement through commission being Pardanashin lady. Leaned trial Court, after hearing the arguments of either side, allowed the applications vide orders dated 21-7-2009. Being aggrieved from the orders of the trial Court, respondents challenged the same by filing revision petitions before the learned Revisional Court, which were accepted and impugned orders of the trial Court dated 21-7-2009, were set aside. Hence these petitions.
3. We have heard the exhaustive arguments of the learned counsel for the parties and have gone through the record.
4. The sole question for determination, in this petition, raised by the petitioner is, whether she should be allowed to be examined on commission? To answer this question it is necessary to know the ordinary meaning of pardanasin lady. Generally a pardanashin woman is one who, by the custom of the country or the usage of the particular community to which she belongs, is obliged to observe complete seclusion (Parda), covered her face with a veil, cloak or cover and avoids coming in public. A woman will be a pardanashin if, she does not go to the court and use to stay away from communications in matters of business with men other than the members of her family.
5. In order to decide the question as to whether the petitioner, should be allowed to be examined on commission, as claimed by her, it is necessary to see the relevant provisions of the Code of Civil Procedure, hereinafter referred to as 'the Code' on this matter. They are section 132(1) and Order XXVI, Rule 1, of the Code. Section 132 (1) read as under:--- "S.132. Exemption of certain women from personal aepearance.--- (1) Women who according to the customs and manners of the country, ought not to be compelled to appear in public shall be exempted from personal appearance in Court."
Section 132(1) applies to women who according to the customs and manners of the country, ought not to be compelled to appear in public. The expression "customs and manners of the country" occurring in subsection (1) of section 132, means current customs and manners, not of the country as a whole, but, of the particular, community class or section to which the woman belongs. In order to determine whether a particular woman is or is not entitled to the benefit of subsection (1) of section 132, the customs and manners of the community, class or section to which the woman belongs, prevailing at the time the court is called upon to apply it, should be the criterion and not the Custom and manners which might have prevailed years ago, but which had become completely absolute. This section, as such, provides for exemption of pardanashin ladies from personal appearance in court.
6. The expression "personal appearance in court" occurring in subsection (1) of section 132 means "personal attendance in court." That this is the true meaning of the words, "personal appearance in court", used in section 132(1) of the Code is clear also from Rule 1, Order XXVI, of the Code where the words used are "attending the court". There is no difference therefore, between "appearance" and "attendance". Under section 132(1) therefore a pardanashin lady cannot be compelled to attend court either as a party or as a witness. Once a woman advocated that she is pardanashin and declined to attend the court, mere refutation of other side would not disentitle her from her right guaranteed by section 132(1), C.P.C..
7. The next relevant provision of the Code is Rule 1, Order XXVI, which is to the following effect:--- "Any court may in any suit issue a commission for the examination in interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the court or who is from sickness or infirmity unable to attend it."
(Underline supplied for emphasis)
8. The grounds upon which a commission can be issued are specified in Rule 1, with which we are concerned here, and, also in Rules 4 and .5 of Order XXVI. One of such grounds mentioned in Rule 1 when the court can issue a commission for the examination of any person is when he, or she, as the case may be is exempted under this Code from attending the court". Section 132 of the Code recognizes the right of pardanashin ladies, who according to their custom, can claim the privilege of being examined on commission. On reading section 132(1), along with Rule 1, of Order XXVI, therefore, it is manifest that a woman, who according to the customs and manners of the class or section or community to which she belongs ought not to be compelled to appear in public, can be examined on commission. This is a right which a court, ordinarily cannot refuse. If the court, therefore, is satisfied having regard to the class or community to which she belongs that she should not be compelled to appear in the witness-box, she may be exempted under section 132(1) from giving evidence in Court and a commission may be issued for her examination in terms of Rule 1 of Order XXVI.
9. The issue of a commission is a matter of judicial discretion of the court, depending on the facts of each case. A commission, ordinarily should be issued the examination of a pardanashin lady, unless her application for commission is mala fide, or would amount to an abuse of the process of the court, or it may result in manifest injustice to any party, or for other valid reasons, which the court may take into consideration in deciding whether the application on the facts of that particular case, should be allowed or refused, but once provisions of section 132, C.P.C. Are attracted, exemption from appearance would be a matter of right. Personal appearance refers to personal attendance in court and women can claim exemption from attending court as well as from appearing in court. An order directing pardanashin women to appear personally in Court would be in breach of her right to exemption, envisaged in section 132, C.P.C. It is well-entrenched opinion that a pardanashin woman can fall easy prey to dishonest people, therefore, to protect such woman, the law has provided special protection to them and the courts are under legal obligation to strictly safeguarded the` interest of pardanashin lady and her consent should not roughly be presumed.
10. In light of the above discussion and principles, we would like to examine the plea of the petitioner in juxtaposition with the facts and circumstances of the case as well as the norms of this conservative male dominated society, to determine as to whether the revisional court was justified while refusing the application of the petitioner regarding her exemption from her personal appearance in the court under section 132(1) and her examination on commission under rule 1, Order XXVI, C.P.C.? At the very outset, the petitioner in Para No,5 of her application under section 12(2), C.P.C. Has averred that she belongs to a very conservative male dominated family and her father had taken a very daring step in recognizing the rights of his daughters as also his male children, he was thus, looked at by other members of family with ridicule and cynicism. The above assertion of the petitioner has been admitted by the respondents in their reply in the following words:--- "Para No,5 of the application is correct that the applicant comes from a conservative family and that her father had great affection for his children but he had never stopped any of his issues to approach the Court for vindication of his/her right."
' The petitioner, filed the under challenged application on the ground that she being a Padanashin lady, be examined through local commission, which was not controverted by the respondents in their reply in the following words:---
11. It is not the case of the respondents that petitioner is not a Pardanashin lady, however, their only apprehension is that she has resiled from her earlier statement recorded through local commission, which resulted in application under section 12(2), C.P.C. And in future she will again try to exploit her statement through local commission. Similarly, the learned revisional court has also not given any findings in the impugned judgment that petitioner is not a Pardanashin lady, but has only been impressed that she is an educated lady and she has challenged the decree granted in favour of the respondents, on the basis of here earlier statement recorded through commission.
12. Admittedly, petitioner belongs to a very conservative male dominant family of District Mardan, where the women follow complex rules of veiling their bodies and avoid appearance before the public, specially in presence of relatives, linked by marriage and before stranger men. In most of the area remained under Gandhara civilization, Parda restrictions are stronger for women of high status families than poor. The important aspect of Parda is modesty for women, which includes minimizing the movement of women in public places and their interaction with other stranger men.
For Parda, it is not necessary that a woman may be educated or illiterate. No doubt, the veiling was initially a custom in the ancient. Greeks and Romans empires. They had also adopted Parda as a custom, but when Christianity was established and starting spreading, Parda was deemed mandatory for respectable women. The Holy Quran of our religion justify Parda for women as a religious obligation as listed in Verse 53 of Surah 33, where the Prophet Muhammad (SAW) put his wives behind the curtain during the wedding feast of his newest wife Zeinab. The translation of the verse reads:--- "0 ye who believe! Enter not the Prophet's house until leave is given you for a meal. And when ye have taken your meal, disperse, without seeking familiar talk, such (behaviour) annoys the Prophet.
And when ye ask (his ladies) for anything you want, asks them from before a screen: that makes for greater purity for your hearts and for theirs."
' Being members of this society, we have observed that in the entire region, the women of Khans' and Nawabs' families are precluded from their frequent travelling alone or with women-folk in the area, without association of their male family members. Even women of these families going from one place to another for social or customary obligations, used local horse-cart "Tanga", duly cloaked with a cloth and it is therefore, the plea of petitioner regarding her Parda has not been denied by the respondents, being her family members. Besides, the bare reading of section 132(1), C.P.C., provides special protection for women and it is H imperative on the court to strictly safeguard the interest and rights of Pardanashin ladies. Once a woman urged that she is a pardanashin, then no evidence is required for satisfaction of the court in support of her I plea, even though, denied by the other side.
13. The argument of the learned counsel for the respondents that petitioner used to visit United Kingdom, where she does not observe Parda, therefore, it shows that she is not strict in observing Parda, is unimpressive, flimsy and unpersuasive. It is a matter of common experience that ladies in our society go outside for shopping and visit abroad with their male family members but it never mean that they would not be strict in observance of Parda before the public, so as to become visible. A woman may have entirely abandoned the protection of parda in her parents or her husband places of residence, but yet she may be exempted from her personal appearance in the court by virtue of section 132(1) of the Code from giving evidence, if she advocated and satisfied the court, having regard to the class and community to which she belong that she should not be compelled to appear in the witness-box. The findings of the revisional court that petitioner is an educated lady and there would be no hurdle and hindrance in her appearance before the trial Court, is based on mere assumption and contrary to the statutory commands of section 132(1), C.P.C., therefore, the revisional court has misdirected itself while accepting the revision petitions of the respondents and setting aside the judgment/order of the trial Court where application of the petitioner regarding her exemption was allowed and she was permitted to be examined on commission. The grounds advanced by the learned revisional court in support of his findings are not convincing and reasonable.
14. Moreover, in the earlier round of litigation, the trial Court, without any application of the petitioner, examined her through local commission on the ground of being Pardanashin lady. As observed above, it is an admitted fact that the petitioner is a Pardanashin lady and entitled to avail the benefit of section 132(1) and rule 1 of Order XXVI, C.P.C. The respondents have not urged a single word before the lower courts as well as before us that the plea of petitioner is based on mala fide or will cause prejudice to them or shall amount to abuse of process of the Court, if she is exempted and examined through local commission. Even the revisional court has not given the above grounds while refusing the plea of petitioner Thus, in these circumstances, in our opinion, it would be doing violence to the sentiments of a female, particularly, belonging to a conservative society, if she is forced to come to court for her examination in the present case.
15. In view of the above discussion, both the writ petitions are allowed. The impugned judgments of the learned revisional court are set-aside and that of the learned trial Court whereby petitioner application regarding her exemption and her examination through commission has been allowed, is restored.