INTRODUCTION:
Contracts are agreements that are enforced by law. The Indian Contract Act (ICA) of 1872, defines a contract and lays down certain essentials that are required for the formation of a contract. Competency to contract and Free Consent are two key objectives required for the formation of a contract. These two base sections govern and protect the rights of the parties in a contract. However, when the case of Pardanashin women comes into the picture, some dilemmas arise in front of the lawmakers as to the scope of the ICA and the special protections mentioned under it. The qualification of a veiled woman to enter into a contract can be viewed in two ways. In the general sense, it enables a woman practising a parda to enter into societal transactions, whereas when interpreted differently, it considers a parda nashin woman to be incompetent to venture into a contract. Further, Section 16 of ICA, mentions Undue influence and declares that a contract arising from such a practice wherein the woman practising the parda is not aware of the intricacies of the contract is voidable at the option of the weaker party. However, there are still doubts about who a pardanashin woman is. These dilemmas have been cleared by the courts over different judgments that concern the same.
WHO ARE THE PARDA-NASHIN WOMEN:
In context to the definition, a woman, who by her custom is barred from showing her face in public is termed a Parda-Nashin. They are bound to live in seclusion and follow their community’s or religion’s rigid rules. This custom of “Purdah”[1] fundamentally revolves around the practices that started in Islam and were later adopted by the upper-class Hindus during medieval times.[2] Historically, these women have had almost zero contact and are secluded from ordinary social interactions with the outside world, thus depending on their father or husband. These women have relations with the men and women of the house, taking into consideration that the contact is maintained from behind the ‘veil’ or ‘purdah’ or ‘parda’. They are usually illiterate and lack the knowledge of rights, laws, duties, and workings of society.[3] Old and sick ladies who are restricted from personal, social, and economic activities outside their house also fall into this category.[4] The “Pardanashin” is defined in different ways by various legal and religious systems. According to Muslim laws, “Parda-nashin means a woman who, according to the custom of the country, might reasonably object to appearing in a public office”.[5] The law courts define them as, “A woman of rank who lives in seclusion, shut in the Zenana, having no communication except behind the parda or screen with any male persons except a few near relations.”[6]
Due to the above-mentioned customary practices, it is assumed that the woman wearing a veil (who is secluded) might fall as easy prey to people, who can deceive them into entering into a contract or even sue them dishonestly. Therefore, to protect the Parda-Nashin women, the law recognizes and provides special protection under the basis of the principle of equity and good conscience.[7]
Still, even after defining who a ‘pardanashin woman’ is, there is no demarcation as to who should be considered under this category. There are ladies who though belonging to an educated class and having access to the outside world, prefer to follow the custom of parda, whereas there are also women who don’t veil themselves, but have a greater chance of falling prey to undue influence. Thus, to clarify the stance of women who fall under the category of pardanashin, (the veil or parda theory), and should hence get protection from the law (in contracts), the courts have tried to define it through different judgments.
POSITION OF PARDA-NASHIN WOMEN IN CONTRACTS:
A Parda-nashin woman can make a contract, and enter into a contract, even if she lacks communication with the outer world. For such contracts to be declared valid, they must arise out of Free Consent, which forms an essential for any agreement to be elevated to the position of a binding contract, backed by law. In general cases, since, the veiled women who live in seclusion and don’t have much knowledge about the outside world, or might tend to be illiterate, it is presumed that a decision by such a Pardanashin woman is under undue influence.[8] Section 16 of the Indian Contract Act, of 1872 provides special benefits for women (Pardanashin women) who enter into contracts that are not in their favour and are signed under undue influence.[9] It states that “A contract is said to be induced by “undue influence” where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other”. Though this section doesn’t expressly mention the Parda-Nashin ladies, it covers in its statement impliedly the unique case of the veiled women living in seclusion from mainstream society. This raises the cases of confidential relationship, wherein the person who sought to hold the deal with a parda nashin lady to the terms of her deed stood towards her in a fiduciary character[10] or some relation of personal confidence; and of course, where such was the case, the onus of proof of the fairness of the transaction lies on the person who sought to enforce the deed in his favour, and it was incumbent upon him to show that the lady thoroughly knew and understood what she was doing and that no fraud or imposition was practiced upon her. A woman is not recognized as a Pardanashin if she in any way interacts with the world. It might be in the form of settling rents, giving evidence, moving to courts, or practicing any businesses.
In cases wherein the women practicing parda are restricted from personal, social, and economic activities outside their house due to their societal or family traditions, which do not allow them to interact with anyone in general, there is a high chance of them being deceived into entering into a contract or them being manipulated to sign such an agreement which they wouldn’t have if they possessed the knowledge of the same. Thus, to overcome these barriers, developments in law are made to bridge the gap between women of such practice (being in seclusion) and mainstream society by throwing a “special cloak of protection” around the Pardanashin woman. Hence, they are not ‘rejected’ or ‘put down’ by the law. Support is being extended to them, along with a guarantee to extend relief. Further, in the cases, that are the other way around, the Indian courts are developing and trying to help the Pardanashin women.
To overcome the problem of dominant influence and for the protection of such a vulnerable section the Supreme Court in one of its cases[11] observed that, this protection which is given to Pardanashin ladies can also be extended to women of other classes, stating that this protection cannot be an exclusive privilege for and restricted to the class known as pardanashin[12], but should also extend to those women who are either illiterate, ignorant, dependent, old or sick. This observation thus broadens the sphere as to who can gain protection under this law. The ruling also stands valid on the fact that the concept of pardanashin is to protect the women who are not able to make decisions of their own will due to various reasons ranging from lack of knowledge or understanding and appreciation to taking decisions without independent authority.[13] Therefore, the courts further understand that the focus must be placed on the individual’s factual comprehension of the text, rather than assuming a limitation as a result of their status. Broadly, it means that anyone entering into a with a pardanashin woman must demonstrate that the executant, notwithstanding her lack of literacy, was able to comprehend what she was doing. It is not enough to prove that she was unaware of or did not understand what she was going to do; rather, it is necessary to demonstrate that she was.
Similar fundamentals were held in the case of Ashok Kumar and Anr. vs Gaon Sabha, Ratauli, And Ors[14], wherein it was observed that the law protects the pardanashin women not only because of purdah itself but because of the isolation that gives rise to the disabilities due to which a pardanashin lady suffers.[15] In another case i.e. Laxmi Narain & Another v. Hubraja[16] it was observed on similar lines that the Rules relating to a Pardanashin lady’s transactions apply equally to an analphabetic and ignorant woman, though she may not be a Pardanashin. It is not because of the Parda itself that the law gives its protection to a Pardanashin lady, but because of the disabilities that she lived a life of alienation. Illiterate or ignorant women are deemed equal to the Pardanashin women and possess the same rights as a pardanashin woman. Therefore, Rights are given to empower women against their weaknesses irrespective of what their weaknesses are[17]. These fundaments were upheld in the case of Sujan Kaur v. Chand Singh[18], wherein it was observed that even though the woman concerning the case is not a Pardanashin lady (in the literal sense) the fact remains that she was old, illiterate, and a widow. Her position wasn’t any better than the Pardanashin lady. The contract signed by such a lady cannot be deemed to be out of free will as she wasn’t aware of the terms and the contract wasn’t executed further. Hence, Pardanashin women must include any illiterate, ignorant, or any woman not know the outside world would enjoy all the rights of a pardanashin woman.
CONCLUSION:
Pardanashin women have historically faced societal constraints and limitations due to cultural practices that restrict their visibility and mobility involving participation in contracts. Due to the advent of social awareness, the shift in societal attitudes, and legal reforms, modern legal frameworks have emerged as initiatives to strive to ensure fair and equitable contract dealings with Pardanashin women, emphasizing their consent, rights, and autonomy.
The contracts entered into by a pardanashin woman can be deemed valid only when the terms of the contract are explained to her clearly, which she understands[19], and when her consent is given out of her free will. In case these contracts when established with women protected under the category of ‘pardanashin’ (who are secluded from the working of society), are not explained and follow the procedure required, tend to come under the radar of being affected negatively before their fulfillment. Since it is presumed in general that a pardanashin woman has a higher density to enter into a contract by listening to other’s opinions and not making decisions out of her conscience, the doubt of undue influence arises. In such cases, the burden of proof lies on the other party in the contract to establish that the contract was entered under free consent.
Author(s) Name: Maahi Kachroo (Symbiosis Law School, Pune)
Reference(s):
[1]Rattigan, W. (1901) (The ‘Parda Nashin’ woman and her protection by British courts … – JSTOR) <https://www.jstor.org/stable/752070> accessed 4 January 2024
[2] (Benjamin, N. (2007). PARDA-NASHIN WOMEN IN N.W. PROVINCES AND OUDH DURING THE GREAT FAMINE OF 1896. Proceedings of the Indian History Congress, 68, 680–689. http://www.jstor.org/stable/44147878) <https://www.jstor.org/stable/752070> accessed 4 January 2024
[3] (PARDANASHIN WOMEN IN CONTRACTS – Aishwarya Sandeep- Parenting and Law) <https://www.jstor.org/stable/752070> accessed 4 January 2024
[4]Dr. S.R Myneni, Contract 1, Page 179
[5] Mahommed Marriage and Divorce Registration, 1876 (Rep. by Act LII of 1974), s 2
[6] Satish Chandra Ghose v. Kalidasi Dasi, [1921] Cal 104 (SC)
[7] Dr. S.R Myneni, Contract 1, Page 179
[8]Rattigan, W. (1901) (The ‘Parda Nashin’ woman and her protection by British courts … – JSTOR) <https://www.jstor.org/stable/752070> accessed 4 January 2024
[9] Indian Contract Act 1872, s 16
[10]Rattigan, W. (1901) (The ‘Parda Nashin’ woman and her protection by British courts … – JSTOR) <https://www.jstor.org/stable/752070> accessed 4 January 2024
[11] Kharbuja Kuer v. Jangbahadur Rai, [1963] 1 SCR 456
[12] Sonia Parshini v. Sheikh Moula Baksha, [1954] Cal 51 (SC)
[13] Sonia Parshini v. Sheikh Moula Baksha, [1954] Cal 51 (SC)
[14] Ashok Kumar v. Gaon Sabha, [1980] All 565 (SC)
[15]Ashok Kumar v. Gaon Sabha, [1980] All 565 (SC)
[16] Laxmi Narain v. Hubraja, [1989] All 174 (SC)
[17] Laxmi Narain v. Hubraja [1989] All 174 (SC)
[18]Sujan Kaur v. Chand Singh, [2003] P&H 561 (SC)
[19] Hussaina Bai v. Zohra Bai, [1959]MP 105 (SC)
