SC sets rules for transaction with ‘pardanashin’

ISLAMABAD:

The top court has ruled that in the case of a transaction with a pardanashin woman—a woman who has limited understanding of the world outside her house due to lack of education or interaction—a principle of caution is attached, to protect her rights.

"It is necessary that a pardanashin woman is fully cognizant and aware of the transaction and that she has independent advice from a reliable source to understand the nature of the transaction,” said a judgment authored by Justice Ayesha Malik.

“There must be witnesses to the transaction and to the fact that a pardanashin woman has received the sale consideration. Most importantly, a pardanashin woman must know to whom she is selling her property and the transaction must be explained to her in the language she fully understands," it added.

Justice Malik was part of a three-member bench also including Justice Ijazul Ahsan and Justice Jamal Khan Mandokhail that heard a case related to rights of such women. Justice Ahsan endorsed Justice Malik’s view but Justice Mandokhail dissented from them on factual controversy in the matter.

The verdict referred to an earlier judgment that held that even if a pardanashin woman trusts a relative and executes a general power of attorney in favor of that relative to sell a property, it is still incumbent upon that relative to make the woman aware of the sale that is about to be executed.

"This is because the underlying principle here is to ensure that at all times where a woman executes a transaction with reference to her property, it is done freely and deliberately.”

It said the mere fact that a power of attorney has been executed by a pardanashin woman does not absolve the attorney holder from ensuring that he has informed the pardanashin woman of the sale he is to execute under that attorney and to obtain her consent in this regard.

"This is necessary to establish the fairness and knowledge of the transaction for the benefit of pardanashin women. We have also held in the case (PLD 2022 SC 99) that the objective of this court has been to protect pardanashin women from the risk of an unfair deal and to ensure that any transaction related to the sale of their property is effected by free will and with consent.

“We have also held that wherever there is a transaction with pardanashin women, it must be established that they were given independent, impartial and objective advice, understanding all implications and ramifications of the transaction to ensure that they give their consent to the transaction, because valuable rights are involved and the pardanashin women should be able to make an informed decision with reference to their property with the help of proper advice and consultation.”

Referring to another case—2013 SCMR 868—the court said the burden of proof lies on the person exercising the power of attorney to prove that the transaction was carried out in good faith and with full knowledge and consent of the grantor.
"Hence, the mere fact that pardanashin women execute a general power of attorney will [neither] absolve the attorney nor the buyer of the obligation to ensure that the pardanashin women have full knowledge of the sale and have given their consent to the sale.

“In the case of a pardanashin woman, even if a power of attorney is executed, the mere execution of the power of attorney will not establish the consent and intent of the pardanashin woman to effectuate sale in favour of a specific buyer.”

The court said for the purposes of disposal of the property of pardanashin women, their independent consent and willingness to dispose of their property must be taken and established notwithstanding the execution of a general power of attorney.

Justice Aysha Malik noted that the concept of protecting the rights of pardanashin women finds its root in the cultural practice of women staying within the protection of their home, having limited access to affairs outside their home.

"Consequently, such women have limited interaction with society and do not participate in matters outside their home. This suggests that their knowledge and information about matters outside their home is limited and insufficient to make informed decisions.

"Accordingly, the courts have protected the rights of such women in order to protect them from betrayal, exploitation and fraud especially where valuable property rights are concerned.”

The judgment further noted that the concept of an illiterate woman is similar to that of a pardanashin woman as both lack education and basic knowledge of worldly affairs and both interact essentially at a limited level with society.

"This limited participation hampers her ability to make informed decisions. Such women are perceived as being unskilled, uneducated and incompetent so far as the business matters are concerned.

"They lack experience and are easily susceptible to deceit even by their relatives. The courts endeavour to protect pardanashin or illiterate women due to their social standing and vulnerability not only from society at large but also from relatives.”

The judgment also said women are often the targets of fraud and deceit when it comes to property matters, which is why the courts have invoked the principle of caution in protecting the rights of such women so that they are not wrongfully deprived of their property.

"The limitations of pardanashin or illiterate women have been duly considered by the courts against which the courts have held that such women must be given independent advice from a reliable and trustworthy source so as to ensure that they fully understand the transaction and the consequences of that transaction.”

"In Muhammad Naeem Khan's case (supra), we have categorically stated that whenever the authenticity or genuineness of a transaction entered into by a pardanashin woman is disputed or claimed to have been secured on the basis of fraud or misrepresentation, the burden will lie on the beneficiary of that transaction to prove good faith and more importantly, the court will consider whether the transaction was entered into with free will or under duress.”

The court said the effort to protect the rights of pardanashin women is necessary so as to give such women the ability to make independent decisions with reference to their property or belongings so as to ensure that they are not deprived of the ability to take a good decision based on their social standing in society.

"This is a step towards ensuring that there is an element of financial and economic independence given to women, who have been deprived of education and have limited interaction within the home and the family.

“While this may be the customary or traditional role of women as seen by society in general, the endeavour of the court has always been to protect the vulnerability and susceptibility of women," it said.