Survival of the fittestProfessor Darwin
As we all know the basic human nature is to dominate and exploit the vulnerable. The one who is knowledgeable and strong enough can survive in society. The article is about one such vulnerable that is pardanashin woman and how the present legal system protects them from being exploited.
Who is a pardanashin woman?
By the name itself, we may confuse that a pardanasin woman is a Muslim woman wearing a burqa. But it’s not true. Pardanashin woman is who totally secluded from ordinary social intercourse. She merely depends upon her father or husband. Pardanashin woman is the one who is away from the outside world. They are mostly illiterate. They don’t know about their rights, duties, laws, etc. pardanashin women have a small circle. They live, talk and mingle with a few people who are within the family. Due to the practice of the parda system and other such customs, some people are always dispensed to stay in their homes. They are not allowed to come out and talk with a stranger and involve in worldly things. Pardanashin women need not be Muslim women they can be of any religion who lives in a kind of seclusion.
Pardanashin women in contracts
A parada nashin woman is considered to be incompetent to enter into a contract. To enter into a contract the contracting party must understand the contract, they should agree on the same thing in a same sense and should be capable of knowing the consequences of their acts.
In the case- of Ashok Kumar and Anr. v. Gaon Sabha, Ratauli, And Ors it has been observed as
Not because of parda itself, the law gives its protection around a pardanashin woman, but because of the inabilities to which the life of a group of people living in veil gives rise to the disabilities and from which a pardanashin women suffer.
A pardanashin woman can be easily manipulated by someone because of her limitations and incapacity to understand the terms of a contract. She may be forced to sign a contract that is not in her favor. Anybody can use her disabilities against her to their benefit.
The legislature recognized the issue and saw a need to protect pardanashin women. They did so by offering cover under the Indian contract law
Pardanashin women can only enter into our contract if say fulfill the following criteria-
- When the contract is clarified to her.
- When pardanashin women could understand what is written in the contract.
- Pardanashin Woman constant should be free.
- When she can understand the drawbacks of the contract.
- A male member of her family should be present with her while signing a contract.
Protection under law for pardanashin women
Pardanashin women are protected under the provision of undue influence mentioned in section 16 of the Indian contract act.
Section 16. “Undue influence” is defined.—(1) 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.
(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another— (a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or (b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
(3) Where a person who is in a position to dominate the will of another, enters into a contract with him and the transaction appears on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other
A contract with a pardanashin woman is presumed to have been induced by undue influence. She can avoid the contract unless the other party can show that it was her intelligent and voluntary act. There is no proper statutory definition of the term pardanashin woman.
Why do pardanashins have protection under the law?
Pardanashin women are protected by the law because they can easily be induced and manipulated to enter into an agreement that is not in favor of her or harmful to her. Pardanashin woman has given the presumption of having undue influence because
- Do not have the ability to develop their worldview.
- They don’t know anything about the outside world
- They are not experienced due to a lack of interaction with other human beings.
- Pardanashin women are mainly illiterates. They don’t know even about their rights
- Cannot interact with anybody outside their household so they do not know what is going on in the world outside their own house.
- They can be easily fooled as they cannot analyze a situation they are just like a small child who is dependent on his/her parents.
Because of the above-stated reasons, all affairs of a pardanashin woman are managed by her husband or her father.
Burden of proof
When a pardanashin woman enters into a contract there is a presumption that she entered into a contract by listening to others’ words, not by her own will and conscience. There is a presumption of undue influence in case of any transaction with pardanashin women. The burden of proof is on the other party that
- The contract was clearly explained to her
- She clearly understood the terms and conditions of the contract
- She entered into the contract by understanding and ability to decide the consequences of her acts
- Free independent advice is available to her
- She entered into a contract with her consent
Here she must be a complete parsanashin to have the protection under the law. For quasi pardanashin women, there is no presumption that they are induced by someone’s words and entered into a contract held in Shaik Ismail v Amir Bibi.
From the above discussion, it is clear that any transaction with a pardanashin woman is presumed of undue influence. So the burden of proof always lies on the other party. Pardanashin woman is the one who lives in a veil. She is completely away from worldly affairs. She is dependent on her father or husband. She can’t take decisions by herself. Hence there is a protection for pardanashin women in Indian contract act.
- Contract and Specific Relief by Avtar Singh (12th edition)
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