The status of a Pardanashin (Pardahnashin) lady in Muslim law holds significant legal implications, especially in matters of agreements, property transactions, and protection of their interests. In this blog, we will explore the concept of Pardanashin ladies and examine relevant legal cases that have shaped their recognition and safeguarding.The phrase “Pardanashin lady” refers to a woman who adheres strictly to the canons and ethics of seclusion and privacy. According to customs, such women may avoid showing up in public offices or having direct communication with any male person, except for near relatives. In the Holy Quran, believing women are commanded to observe modesty and guard their chastity by covering themselves and not revealing their adornments.
When a document is executed by a Pardanashin lady, a time-honored parameter dictates that the burden of proof lies on the party relying on the deed. They must convince the court that the document was read and explained to her, she understood it, and received independent and disinterested advice on the matter. This principle also applies to illiterate and ignorant women, even if they are not Pardanashin.
If the authenticity of a transaction involving a Pardanashin lady is disputed or claimed to be based on fraud or misrepresentation, the burden is on the beneficiary of the transaction to prove their good faith. The court must ensure that the lady acted of her own free will and was not coerced, blackmailed, or deprived of her rights or interests in the property or inheritance by male family members.
Judicial precedents in Pakistani courts have established protective measures for Pardanashin ladies due to their lack of knowledge in business matters and social conditions. The Privy Council defined a Pardanashin lady as a woman of rank living in seclusion, but the law extends its protection to illiterate and ignorant women as well. It is important to note that whether a lady is Pardanashin or not is a question of fact and should be specifically pleaded and proven with cogent evidence. This defense should not be used as a shield or weapon to evade legal proceedings at any stage of the case.
Presumption of Pardanashin Status
In Muslim law, every woman is presumed to be a Pardanashin lady unless proven otherwise. It is essential to note that adopting a modern way of life does not negate the classification of a woman as Pardanashin. The case of PLJ 1996 Lahore 1472 established that being a lady is a primary factor, and the balance of inconvenience should be considered concerning male respondents.
Special Protection for Illiterate Pardanashin Ladies
Courts exercise much care and caution in matters of agreement or transaction of sale involving illiterate Pardanashin ladies. The case of PLJ 1999 Lahore 1624 highlights the need for special protection for these vulnerable women.
Legal Considerations in Sale Transactions
The case of PLJ 1999 Lahore 1553 dealt with a transaction of sale by Pardanashin ladies. The plaintiffs had signed the sale deed before the Sub-Registrar but failed to appear before the Trial Court to make statements on oath. Their evidence in support of fraud allegations was deemed of no value as they did not offer themselves for cross-examination.
Mutation and Attestation in Property Matters
The case of PLD 2003 SC 688 discussed the importance of proper mutation and attestation in property transactions. The identification of transferors by a Lambardar from an unrelated village raised doubts about the authenticity of the transaction.
Challenges Faced by Pardanashin Ladies
In PLD 2001 SCMR 1591, the court emphasized that the onus lies on those benefiting from transactions involving Pardanashin ladies to prove the genuineness and bona fides of the documents. The case also addressed the need for reasonableness in exchange transactions.
Acquisition of Proprietary Right of Inheritance
The case of 2003 MLD 702 clarified that the acquisition of proprietary rights of inheritance does not solely depend on the attestation of mutation in Revenue Record.
Importance of Proving Genuine Transactions
In Jannat Bibi v. Sikandar Ali and others (PLD 1990 SC 642 ref. 2001 SCMR 1591), the court held that in cases of fraud, deception, and misrepresentation in property disposal by Pardanashin ladies, the burden of proof rests on the party taking advantage of the transaction.
More judicial context
The determination of Pardanashin status has far-reaching legal consequences for Muslim women in Pakistan in various aspects of their lives. The below mentioned legal cases shed light on the need for special protection and careful consideration of transactions involving Pardanashin ladies. To ensure justice and equity, it is imperative for the legal system to safeguard the interests of these vulnerable women and uphold the principles of fairness and reasonableness.
The status and significance of Pardanashin ladies have been extensively discussed in the following judicial decisions:
(1) Ghulam Ali and others versus Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1): In this case, the court acknowledged that while women in urban society are asserting their rights and abilities, women in other social sectors, particularly rural areas, remain highly dependent on the goodwill of men. The court compared the conditions of women in such areas to those prevailing before the advent of Islam. The court also recognized that, even without specific Islamic injunctions, the position and limitations of women in protecting their rights have been consistently acknowledged, particularly concerning contracts and acts of Pardanashin ladies, as interpreted under the provisions of the Contract Act (Section 16 and others). The Privy Council had also previously considered this matter.
(2) Janat Bibi versus Sikandar Ali and others (PLD 1990 Supreme Court 642): This case emphasized that determining whether a lady is Pardanashin is a question of fact. The burden of proof, in relation to a document purportedly executed by a Pardanashin woman affecting her rights or interests in immovable property, lies on the person claiming those rights or interests under the document. If the woman is illiterate, the document must have been read over to her. The court quoted the observation of Sir George Lowndes in the case of (Valluri) Ramanamma v. Marina Virana (AIR 1931 Privy Council 100) that for any disposition of property by Pardanashin ladies, the person claiming the benefit of such disposition must affirmatively establish that the lady substantially understood it and that it was her free and intelligent act. If the lady is illiterate, the contents of the document must have been read to her, and if the terms are complex, they must have been adequately explained to her. The lady’s level of intelligence is also a relevant factor, but independent legal advice is not necessarily essential.
(3) Syed Mansoor Ahmad v. Mst. Maqbool Begum and others (1990 SCMR 1259): In this case, the court emphasized that when a document adversely affects the interests of a woman in favor of a person who holds a position of active confidence, strict proof of execution and the availability of independent advice to the executant are required. The court recognized the vulnerability of women in such situations and sought to ensure that their rights and interests are adequately protected.
(4) Muhammad Yaqoob v. Mst. Sardaran Bibi and others (PLD 2020 Supreme Court 338): The court held that illiterate village women should be treated on par with Pardanasheen ladies. In transactions that could potentially go against their apparent interests, it is essential to establish that these women had access to independent, impartial, and objective advice. The nature, scope, implications, and ramifications of the transaction they were entering into must have been fully explained to them, and they should have understood the consequences of their actions.
(5) Rangbi Bewa v. Md. Abed Ali & others (Supreme Court of Bangladesh) (1987 7 BLD 319): In this case, the court outlined three crucial factors that need to be satisfied when dealing with a deed executed by a Pardanashin lady. Firstly, it must be proven that the deed was actually executed by her or by someone duly authorized on her behalf, with a full understanding of the action taken. Secondly, it must be established that she had complete knowledge of the nature and effect of the transaction she purportedly entered into. And thirdly, the court must ascertain that she had access to independent and disinterested advice in the matter. These criteria are essential to ensure the fairness and authenticity of any transaction involving a Pardanashin lady.
(6) Phul Peer Shah versus Hafeeza Fatima (2016 SCMR 1225): In this case, the court emphasized that in transactions involving old, illiterate, or rustic village “Parda Nasheen” ladies, the burden of proving the legitimacy and authenticity of the transaction rests on the party seeking to benefit from it. To dispel any suspicions and doubts surrounding such transactions, certain mandatory conditions must be fulfilled transparently and with a high degree of evidence. These conditions include ensuring that the lady was fully aware of the nature and consequences of the transaction, receiving independent advice from a trustworthy source to understand the transaction fully, involving witnesses who have no conflict of interest and are closely related or acquainted with the lady, ensuring the proper payment and receipt of the sale consideration, and explaining the transaction to her in a language she understands completely. These safeguards are put in place to protect vulnerable women from exploitation, ensuring that any transaction they enter into is fair and well-informed.
(7) Irshad Hussain v. Ijaz Hussain and 9 others (1994 PLD SC 326): The court held that whether a lady is Pardanashin is a matter of fact. The burden of proving that any document executed by a Pardanashin lady, affecting her rights in an immovable property, was fully understood and voluntarily executed by her lies on the person claiming rights under that document. This principle extends not only to Pardanashin ladies but also to illiterate and ignorant women. The courts impose this rule of wisdom and caution to protect women from exploitation, duress, fraud, and misrepresentation. However, if the lady involved is educated, not observing Parda, and capable of understanding transactions, and she executes the deed with full understanding of its implications, the strict standards governing Pardanashin, ignorant, and illiterate women may not be applicable in her case. This recognizes that educated women who understand transactions can make informed decisions without the need for the same level of protection as vulnerable women.
(8) Mst. Farid-un-nisa v. Munshi Mukhtar Ahmad and another (A.I.R. 1925 Privy Council 204): In this case, the court emphasized the importance of ensuring that illiterate pardanashin ladies, who are divesting themselves of a significant portion of their property without professional or independent advice, fully understand the disposition they are making. The court held that the deed must be substantially understood and genuinely the mental act of the person making it. To satisfy the court, it must be established that the deed was explained to and understood by the party under disability, either before or after execution, in a manner that shows their full knowledge and comprehension.
(9) Mst. Kharbuja Kuer v. Jangbahadur Rai and others (AIR 1963 SC 1203): The court clarified that the protection afforded to pardanashin ladies should not be confused with other legal doctrines such as fraud, duress, or undue influence, which apply to all individuals regardless of their status as pardanashin ladies. The special protection given to pardanashin ladies demands that the burden of proof in such cases lies with those who rely on the deed. They must demonstrate affirmatively and conclusively that the deed was not only executed by the lady but also explained to her and genuinely understood by her. This rule aims to safeguard the pardanashin lady from exploitation, ensuring that any disposition of her property is done with full understanding and consent.
- These cases underscore the need for special consideration and protection of the rights of Pardanashin ladies, particularly when it comes to their involvement in property transactions or legal matters. Courts have recognized the vulnerability of Pardanashin and illiterate women and placed the responsibility on the claimants to prove the genuineness and validity of any documents or transactions involving them. The ultimate goal is to ensure that these women are not exploited or deprived of their rights and interests in any unjust manner.
- These legal precedents underscore the significance of providing special protection and safeguards to women, especially Pardanashin and illiterate women, in matters concerning their rights and interests in property transactions. The courts have consistently emphasized the need for genuine understanding, independent advice, and protection against any undue influence or exploitation. The principles set forth in these cases serve as a guide for ensuring fair and just dealings when dealing with transactions involving vulnerable women.
- These legal precedents highlight the importance of ensuring fairness, transparency, and protection for women, particularly those who may be more vulnerable due to factors such as illiteracy, ignorance, or adherence to strict traditions like Parda. The burden of proof lies on those seeking to benefit from transactions involving such women to demonstrate that the women understood the implications and entered into the transactions willingly and knowingly. By upholding these standards, the courts aim to safeguard the rights and interests of women in property transactions and prevent any form of exploitation or undue influence.
- The aforementioned judgments have established the rules and principles to protect pardanashin and illiterate ladies from various forms of exploitation and manipulation in a male-dominant society. These rules emphasize the need for transparency, understanding, and comprehension in transactions involving such vulnerable women. By placing the burden of proof on those who benefit from such transactions, the courts seek to ensure that the rights and interests of pardanashin and illiterate ladies are safeguarded, thereby mitigating the power imbalance prevalent in society. These landmark verdicts reflect the judiciary’s commitment to upholding fairness and justice for women in property-related matters.