CONTRACTS WITH

PARDANASHIN
WOMEN
 DECLARATION

The text reported in the project is the outcome of my own efforts and no part of this project assignment has
been copied in any unauthorized manner and no part of it has been incorporated without due acknowledgement.

PALAK KATTA
 TABLE OF CONTENTS

DECLARATION...................................................................................................................................................2

TABLE OF CONTENTS......................................................................................................................................3

RESEARCH METHEDOLOGY.........................................................................................................................4

PARDANASHIN WOMEN..................................................................................................................................5

CONTRACT AND THE PARDANASHINS......................................................................................................6

 Burden of Proof..........................................................................................................................................8

 Relation which Raise Presumption of Undue Influence.........................................................................9

CASES IN REFERENCE WITH PARDANASHIN WOMEN.......................................................................10

CONCLUSION....................................................................................................................................................11

BIBLIOGRAPHY...............................................................................................................................................12
 RESEARCH METHEDOLOGY

A) OBJECTIVES-
1) To explore the meaning and origin of the Pardanashin women.
2) To know the status of the Pardanashin women in the contracts.

B) HYPOTHESIS-
It has been hypothesized that:
Pardanshin women is one who lives in seclusion having no commission except from behind the parda or
screen with any male person except a few privileged relations.

C) RESEARCH QUESTIONS-
1) What is the meaning of a Pardanashin woman in contracting act?
2) What is the capacity of Pardanashin women in a contract?

D) COVERAGE AND SCOPE-

The report covers only the contracts with Pardanashin women.

E) RESEARCH METHODOLOGY AND LIMITATION-

The study conducted in the project is doctrinal in nature. Primary source such as statutes and cases are
used. Secondary source such as website, journals, and articles are used.
Its limitations are-
1) The study is not empirical in nature. There is no field study or practical study.
2) Only the contracts with Pardanashin are concerned.
 PARDANASHIN WOMEN

The term 'purdah', which is derived from the Hindi/Urdu word 'parda' or 'curtain', refers to a custom which
Papanek describes as a "system of secluding women and enforcing high standards of female modesty.” Two
major aspects of purdah are the custom of sequestering women in separate quarters within the household, and
the habit of women in purdah to veil themselves both within the house and when in public. However, purdah
can also be thought of as a comprehensive and heightened modesty code, pervasive in many cultures, which
regulates interaction between men and women (and in some cases between women), and which includes
restrictions of many different kinds on attire, body language, and speaking. In nineteenth-century South Asia
there were two major types of purdah, practiced respectively by Hindus and Muslims. Muslim women were
secluded within the house and veiled themselves in public but were usually allowed informal interaction with
close male relatives with whom marriage would be forbidden. However, for upper-class Hindu women, purdah
applied both to contact with the outside world and to contact with a woman's in-laws; women would usually
conceal their heads and faces with the end of their saris in public, and applied the same modest behaviour
within the household when senior male and female members of their husband's family were present.1

By the nineteenth century purdah had become ingrained in the fabric of north Indian society, and was practiced
to varying degrees by Hindus and Muslims alike. Purdah was generally associated with more urbanised
settings, and was dependent on factors such as age, socio-economic status, and the social aspirations of the
household. Complete observation of purdah was a privilege of the upper classes and castes, and purdah was
seen as one of several indicators of social status in colonial India for both Hindus and Muslims, particularly for
lower-middle class or caste groups who were interested in raising their ritual and social status. Thus, purdah
was practiced both by the upper classes and by some lower-middle and middle class groups who were trying to
emulate their habits.2

Purdah for most elite Muslim women in the nineteenth century meant almost complete seclusion within the
household; according to one popular saying, a woman should leave the house only twice during her lifetime,
when she was carried into her new home in a palanquin at the time of marriage, and when she was carried out
after her death. In reality, women could leave the house more frequently, but moved around only in completely
1
https://core.ac.uk/download/pdf/1322887.pdf accessed 14 April 2020
2
ibid
enclosed conveyances. A description of purdah observance was provided by an English woman who married
into an ashraf family and lived in Lucknow from 1816-28:

"Those females who rank above peasants or inferior servants, are disposed from principle to keep themselves
strictly from observation; all who have any regard for the character or the honour of their house, seclude
themselves from the eye of strangers, carefully instructing their young daughters to a rigid observance of their
own prudent example. Little girls, when four years old, are kept strictly behind the purdah, and when they move
abroad it is always in covered conveyances...”3

CONTRACT AND THE PARDANASHINS

In our day to day lives we enter into different agreements like selling and buying of property, becoming an
employee, settling disputes and much more. It is seen that often individuals enter into agreements without even
considering the essential provisions of a valid contract, and therefore end up entering into an invalid contract
and thereby suffering from loss. A contract is difficult to be enforced unless it’s terms can be admitted by the
parties. A signed written contract reduces the risk and saves the parties from entering into a contract which they
cannot later enforce.4

Pardanashins are also protected by the law in cases involving contracts and deeds. The term ‘Pardanashin’
means screened from the view, placed behind the screen, veiled. It refers to a woman who observes the rule of
seclusion. A Contract with pardanashin women is presumed to have been induced by Undue Influence. Section
165 defined undue influence as-

(1) A contract is said to be induced by "under 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 generally of the foregoing principle, a person is deemed to be in a
position to dominate the will of another –

(a) where he hold 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
Mrs. Meer Hassan Ali, Observations on the Mussulmauns of India, W. Crooke, ed., (Karachi, Oxford University Press, 1974
[1832]), 172.
4
https://blog.ipleaders.in/analysis-section-10-indian-contract-act-1872/ accessed 14 April 2020
5
The Indian Contract Act 1872, s 16(1)(2)
A pardanashin girl is one by the custom of the country or the usage of the actual community to that she belongs,
is duty-bound to watch complete seclusion (Parda). “A girl won’t be a pardanashin girl if she goes to the court
and provides proof, settles rents with tenants and collects rents, communicates in matters of business with men
aside from the members of her family.”6

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 parda itself that the law throws
its protection around a pardanashin woman; rather it is by reason of those disabilities which arise out of
seclusion which the pardanashin women suffer, arising from causes such as old age, infirmity, illiteracy, mental
deficiency, inexperience and dependence upon others.7 The principle upon which the law accords protection to
pardanashin women is founded on equity and good conscience.8

But there is no reason why a rule which is applicable on pardanashin ladies on the ground of ignorance
and illiteracy should be restricted to that class only and should not be apply to the cases of women who is
equally ignorant and illiterate and is not pardanashin simply because she does not belong to that caste. 9

Where ignorance and illiteracy are proved exposing the woman concerned to the danger and risk of an unfair
deal, it would be a perversion of the rule to deny in such case the protection, despite the helplessness of her
state, merely on the ground that she is not pardanashin lady.10 In Hodges v. Delhi and London Bank Ltd., 11 it
was held that ‘it must depend on each case on the character and position of the individual woman whether those
who deal with her are or not bound to take special precaution that her actions shall be intelligent and voluntary
and to prove that it was not so in case of dispute.”

The protection when given to such a woman is by putting the burden of proof upon the person transacting with
such woman to show the transaction was effected by the free will of such a woman, that she has taken
independent advice12 ; or that the said documents were executed by her after clearly understanding the nature of
transaction. 13

It should be established that it was not her physical act but also her mental act.14 The burden can be established
not only by proving that the document was explained to her and that she understood it but also by other

6
http://sabijutt786.altervista.org/pardanasheen-women-in-busines law/?doing_wp_corn accessed 14 April 2020
7
Ashok Kumar v Gaon Sabha [1981] AIR All 222
8
Tara Kumari v Chandra Mauleshwar Prasad Singh [1931] 58 IA 450, AIR [1931] PC 303, 34 (Bom) LR 222, 134 IC 1076
9
Chaitya v Bhalku 51 CLJ 465, AIR 930 (Cal) 591, 128 IC 108
10
Sonia Parshini v. Sheikh Moula Baksha, AIR [1955] (Cal) 17 ; Madna Vati v. Raghunath Singh, AIR [1976] (HP) 41
11
Hodges v. Delhi and London Bank Ltd. [1899-1900] 27 IA 168, 175-76
12
Hussain Bai v. Zohra Bai, AIR [1960] (MP) 60; Rabiya v. Ali Hussain, AIR [2009] (Uttrakhand) 37.
13
Sonia Parshini v. Sheikh Moula Baksha, AIR [1955] (Cal) 17
14
Amir Alam v. Bibi Salma, AIR [1952] Pat 19; Kairum Bi v. Mariam Bi, AIR [1960] (Mad) 447
evidence, direct and circumstantial.15 It is not sufficient to show that a document executed by a pardanashin
women was read out to her; it is must further be shown that it was explained to her,16 or that its conditions and
effect17; and that the explanation included all material points as well as the general nature of the transaction.18
The reason is that the ordinary presumption that a person understands to which he has affixed his name does not
apply in the case of such a women.19 In the case of a pardanashin woman, apart from other considerations
applicable, if the document executed in not in the mother tongue of the executant, the law requires further that
she understood the document and not merely heard its contents.20

If any pardanashin woman executes/makes any contract then she should be accompanied with any male
member of her family as her contract without this is not valid.21

When a document is executed by a pardanashin lady the court has to be satisfied that: (i) She executed it after
all understanding (ii) She had full knowledge of its nature and effects (iii) She had independent and
disinterested advice. The court has to provide protection to pardanashin women during the contractual binding
as law presumes it to be induced by “undue influence” on the ground that she is vulnerable and holds a
submissive position in the society.22

Burden of Proof

In Annapurna Barik Dei v Smt. Inda Bewa,23 it was held that when a person enters into a contract with a
pardanashin or illiterate lady, the burden of proof is upon such person to prove that their terms of the contract
were unconscionable and that she was capable of rendering an independent opinion after having understood the
document.

The burden of proving that no undue influence was used lies on the other party. The other party will have to
prove that:

(i) the terms of the contract were fully explained to her,

(ii) she understood the implications,

15
Kharbuja Kuer v. Jangbahadur Rai, [1963] 1 SCR 456, AIR [1963] (SC) 120 at 1206; followed in Mitti Bewa v. Daitari Nayak,
AIR [1982] (Ori) 174.
16
Kuma Die v. Md Abdul Latif, AIR [1994] (Ori) 111
17
Shambati Koeri v. Jago Bibi, [1902] 29 IA 127, [1902] 29 (Cal) 749
18
S K Abdul Mannan v. Mutwalli of Janebali, AIR [1956] (Cal) 584
19
Mariam Bibi v. Sakina, (1892] 14 All 8
20
Hussain Bai v. Zohra Bai, AIR [1960] (MP) 60
21
https://www.slideshare.net/mukulgupta3158/presentation1-36473206 accessed 14 April 2020
22
https://kupdf.net/download/contracts-with-pardanashin-women_5975c7abdc0d60324a043374_pdf accessed 14 April 2020
23
Annapurna Barik Dei v Smt. Inda Bewa [1995] (Orissa) 273
(iii) free independent advice was available to her, and

(iv) she freely consented to the contract. This protection is available only to a woman who observes complete
parda. Some degree of parda or seclusion is not sufficient to entitle her to get special protection.24

Relation which Raise Presumption of Undue Influence

The following relationship usually raises the presumption of undue influence:

1) Parent and child

2) Guardian and ward

3) Trustee and beneficiary

4) Religious advisor and disciple

5) Doctor and Patient

6) Solicitor and client

7) Financer and finance25

The presumption of undue influence usually applies whether the relationship between the parties is such one of
them is by reason of confidence reposed in him by the other, able to take unfair advantage on other.

However, no presumption of undue influence is made in relationship of:

1. Land Lord and Tenant

2. Creditor and Debtor

3. Husband and wife, provided wife should not be pardanashin woman otherwise the presumption will rise.26

24
https://blog.ipleaders.in/analysis-section-10-indian-contract-act-1872/ accessed 14 April 2020
25
https://shodhganga.inflibnet.ac.in/bitstream/10603/43089/11/11_chapter%202.pdf accessed 14 April 2020
26
ibid
 CASES IN REFERENCE WITH PARDANASHIN WOMEN

A contract with Pardanashin is presumed to have seen undue influence. A pardanashin woman is one who
observes complete reclusion because of the custom of the particular community to which she belongs she can
avoid a contract unless the other party shows it was her intelligent and voluntary act.27

Ismaile Mussajee v. Hajiz Boo,28 it was held that a woman who goes to the court and gives evidence, settles
rents with her tenants and collects rents and communicates in matter of business with men other than the
member of the family is not a pardanashin woman.

Kalibaksh Singh v. Ram Gopal Singh,29 it was held by Privy Council that the prove must go so far as to allow
show affirmatively and conclusively that the deed was not only executed by, but also explained to, and was
really understood by grantor. In such cases, it must also be established that the deed was not signed under
duress and also arose from the free and independent will of the grantor.

Wazid Khan v. Raja Ewaz Ali Khan30 an old illiterate pardanashin lady, who was herself incapable of
transacting any business, conferred a grant of her substantial property without any valuable consideration in
favors of her confidential managing agent. The Privy Council held that it was incumbent in the grantee to show
that he had made proper use of confidence reposed by the lady in him and there was no undue influence.

Chidambaram Pillas v. Muthammas,31 it was held that a pardanashin woman may not be illiterate. If she is
fractionally, excluded from social inter course and communication outside void, she will fall in this category.

CONCLUSION

27
A.N.Chaturvedi ,Indian Contractact [1984] Allahabad Law Agency id at p.114.
28
Ismaile Mussajee v. Hajiz Boo [1906] 33 (Cal.) 773
29
Kalibaksh Singh v. Ram Gopal Singh [1913] 41 IA 22
30
Wazid Khan v. Raja Ewaz Ali Khan ILR [1891] IA 144
31
Chidambaram Pillas v. Muthammas [1993] ILW 466
A contract is considered as a legally binding agreement or a relationship that exists between two or more
persons to do or abstain from doing an act, which the law will enforce. If a contract needs to be formed an offer
must be backed by acceptance of which there must be some consideration. Both parties to a contract must
intend to create some legal relation upon each other of which the party if fails to fulfill the conditions of the
contract can be punished under law.

It is concluded that A pardanashin woman is susceptible to undue influence and therefore, the law throws
around her a “Special cloak of protection” i.e. Where such a woman signs a sale, mortgage, gift or release, the
person obtaining her signatures has to prove that the transaction was not only explained to her but also that she
had understood the transaction and that no undue influence was exercised on her. If any pardanashin woman
executes/makes any contract then she should be accompanied with any male member of her family as her
contract without this is not valid.

The most essential part of a valid contract is a lawful agreement, as illegal contracts have no valid status i.e.
they are considered as void in the eyes of law.

BIBLIOGRAPHY
WEBSITES:
https://core.ac.uk/download/pdf/1322887.pdf

https://blog.ipleaders.in/analysis-section-10-indian-contract-act-1872/

http://sabijutt786.altervista.org/pardanasheen-women-in-busines law/?doing_wp_corn

https://www.slideshare.net/mukulgupta3158/presentation1-36473206

https://kupdf.net/download/contracts-with-pardanashin-women_5975c7abdc0d60324a043374_pdf

https://shodhganga.inflibnet.ac.in/bitstream/10603/43089/11/11_chapter%202.pdf

STATUTES:

The Indian Contract Act 1872

JOURNAL ARTICLES:

Mrs. Meer Hassan Ali, Observations on the Mussulmauns of India, W. Crooke, ed., (Karachi), Oxford
University Press, 1974

CASES CITED:

Ashok Kumar v Gaon Sabha [1981] AIR All 222

Tara Kumari v Chandra Mauleshwar Prasad Singh [1931] 58 IA 450, AIR [1931] PC 303, 34 (Bom) LR 222,
134 IC 1076
Chaitya v Bhalku 51 CLJ 465, AIR 930 (Cal) 591, 128 IC 108
Sonia Parshini v. Sheikh Moula Baksha, AIR [1955] (Cal) 17 ; Madna Vati v. Raghunath Singh, AIR [1976]
(HP) 41
Hodges v. Delhi and London Bank Ltd. [1899-1900] 27 IA 168, 175-76
Hussain Bai v. Zohra Bai, AIR [1960] (MP) 60; Rabiya v. Ali Hussain, AIR [2009] (Uttrakhand) 37.
Sonia Parshini v. Sheikh Moula Baksha, AIR [1955] (Cal) 17
Amir Alam v. Bibi Salma, AIR [1952] Pat 19; Kairum Bi v. Mariam Bi, AIR [1960] (Mad) 447
Kharbuja Kuer v. Jangbahadur Rai, [1963] 1 SCR 456, AIR [1963] (SC) 120 at 1206; followed in Mitti Bewa v.
Daitari Nayak, AIR [1982] (Ori) 174.
Kuma Die v. Md Abdul Latif, AIR [1994] (Ori) 111
Shambati Koeri v. Jago Bibi, [1902] 29 IA 127, [1902] 29 (Cal) 749
S K Abdul Mannan v. Mutwalli of Janebali, AIR [1956] (Cal) 584
Mariam Bibi v. Sakina, (1892] 14 All 8
Hussain Bai v. Zohra Bai, AIR [1960] (MP) 60
Annapurna Barik Dei v Smt. Inda Bewa [1995] (Orissa) 273
A.N.Chaturvedi ,Indian Contractact [1984] Allahabad Law Agency id at p.114.
Ismaile Mussajee v. Hajiz Boo [1906] 33 (Cal.) 773
Kalibaksh Singh v. Ram Gopal Singh [1913] 41 IA 22
Wazid Khan v. Raja Ewaz Ali Khan ILR [1891] IA 144
Chidambaram Pillas v. Muthammas [1993] ILW 466