Critically examine the statement that the law throws a special cloak of protection around pardanashin lady. Refer to case law.

Question: Critically examine the statement that the law throws a special cloak of protection around pardanashin lady. Refer to case law. [BJS 1980]

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Answer

To enter into a valid contract and legally execute, it is crucial that a party entering into a contract is capable of understanding the terms and conditions of the contract, able to comprehend the consequences that may follow of its breach, and know their personal obligations involved in the concerned contract. However, a Pardanashin woman is incapable of understanding and interpreting the contract in layman terms.

The term pardanashin means screened from view, placed behind a screen, veiled. It refers to a woman who observes the rule of seclusion. The ground on which protection is given to a pardanashin woman is that she can be easily influenced and is very likely to be over-reached in her dealings. It is not merely by reason of the purda itself that the law throws its protection around a pardanashin woman; rather it is by reason of those disabilities which arise out of the seclusion which the pardanashin women suffer, arising from causes such as old age, infirmity, ignorance, illiteracy, mental deficiency, inexperience and dependence upon others.

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, however, no statutory or judicial definition of the term “pardanashin woman“.

In the opinion of the Bombay High Court in Shaik Ismail v. Amir Bibi, (1902) 4 Bom LR 146, a woman does not become pardanashin simply because “she lives in some degree of seclusion”. The concept probably means a woman who is totally “secluded from ordinary social intercourse“.

Once it is shown that a contract is made with a pardanashin woman, the law presumes undue influence. The burden lies on the other party to show that no undue influence was used, that the contract was fully explained to her, and that she freely consented.

The following statement of the Privy Council in Kalibakhsh Singh v. Ram Gopal Singh [1913 41 lA 23, 28-29] explains the extent of this onus. In this case, about two months before her death, a Hindu widow (who was a pardanashin woman) gifted half of her landed properties to the son of her paramour, who was also the manager (mukhtar) of her estate. It was contended, combined with the fact that she had no independent advice, was sufficient to show that the gift was the result of the influence the mukhtar had over the lady. The court observed as under:

“In the first place, the lady was a pardanashin lady, and the law throws around her a special cloak of protection. It demands that the burden of proof shall in such a case rest, not with those who attack, but those who found upon the deed, and the proof must go so far as to show affirmatively and conclusively that the deed was not only executed by, but was explained to, and was really understood by, the grantor. In such cases it must also, of course, be established that the deed was not signed under duress, but arose from the free and independent will of the grantor.”

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Law of Contract Mains Questions Series: Important Questions for Judiciary, APO & University Exams

1. Law of Contract Mains Questions Series Part-I
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3. Law of Contract Mains Questions Series Part-III
4. Law of Contract Mains Questions Series Part-IV
5. Law of Contract Mains Questions Series Part-V
6. Law of Contract Mains Questions Series Part-VI
7. Law of Contract Mains Questions Series Part-VII
8. Law of Contract Mains Questions Series Part-VIII
9. Law of Contract Mains Questions Series Part-IX
10. Law of Contract Mains Questions Series Part-X