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Keeping Up with the Pardhanashin

Hussaina Bai v. Zohra Bai

Abstract
The Muslim law has ways through which property, or some assets may be transferred.
One among them is Hiba, which is a gift under Muslim law. There are certain restrictions
from deciding extensively on these matters given that religious freedom needs to be
maintained. Nevertheless, this paper is going to discuss the intersection between
Pardhanashin women and Hiba when they make one and the roles and influences of people
around these groups of women which has an impact on their decision to make a Hiba. These
concepts will be discussed in the context of the case Hussaina Bai v. Zohra Bai,1 how the
court viewed these women and the difference in approach when it comes to handling cases
relating to them. Further, moving on from this case, which was decided in 1959, how this
concept has evolved, the extent to which the demography has changed with regards to the
existence of these kinds’ women, or has it, and how this is affected on the way Pardhanashin
women are treated all come to be questioned on.

1
Hussaina Bai v. Zohra Bai, AIR [1960] (MP) 60.
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Introduction
A Hiba is an unconditional transfer of an ownership in an existing property made
immediately without consideration. An important feature of a person making a Hiba is to
have the mental capacity and free will to do so. Such capacity includes being of sound mind
and thus understanding the implications of one’s actions. This is particularly emphasized
because when making the Hiba, the maker should exercise will freely and there should be no
other agent working on their mind. The case Pasapini v. Moula, further held that it is
important that the makers of a will should be free from compulsion. Thus, this paper is taking
these general requisites into consideration which also gives rise to the rights received by
Pardhanashin Women.

Pardhanashin Women
The concept of Pardhanashin Women has evolved over the decades from the initial
idea of the purdah worn by Islamic women. They are a category of women who are not
allowed out of the house. They are hidden behind the purdah(veil). They are very susceptible
to being influenced, blackmailed, taken advantage of or using other fiduciary means. These
women are very dependent on other male family members to make decisions for them. The
reason behind providing protection to this category is to ensure that they make a Hiba
completely understanding the contents and have the requisite information to make decisions
that are beneficial to them. Information is regarded to be a very sacred right when it comes to
the courts because it allows Pardhanashin women to voice out their concerns and opinions,
enabling them to make informed decisions.

The law provides this protection under the principle of equity and good conscience as
these women are often found to be uneducated and incapble of making independent
decisions. The case discussed in this paper mainly puts forth the importance of looking much
into the facts of the case and understanding the influences which acted on the mind of the
Pardhanashin woman. The court needs to look more deliberately than when dealing with
someone with normal competence.
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The Case Analysis

Facts
This case was decided in the Appellate Court of Madhya Pradesh in the year 1959. It
pertains to a woman, Zohra Bai, who the court holds to be a Pardhanashin. The diagram of
the family is given at Pg 8 for reference. Zohra Bai obtained certain property from her former
husband Shamsherali, post his death. A disheartened Zohra lived a life of seclusion following
the ritual of Iddat. Following this, her sister’s side relative, Salehbhai took her to her sister’s
house on misrepresentation that her husband was sick.

Upon reaching, she didn’t find Nomanali there, but rather, she was confined in the
house for 15- 20 days. During this period, she was subject to much coercion and force asking
her to sign a gift deed on behalf of her niece, Hussaina Bai, the appellant. At the end of this
period, she was made to sign a gift deed scribed in Hindi and on misrepresentation regarding
the contents of the deed. Everyone present around her were from the appellant side of the
family and none from her own. Later, upon finding the deed missing from her possession, she
filed a suit to repudiate the deed. Upon this, this court discusses matters relating to
Pardanashin women, voluntary transactions, delivery of possession etc.
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Grounds on which Zohra Challenged the Gift Deed

I. Was not a conscious act as she was suffering from hysteria.
II. Coercion, undue influence and misrepresentation by the appellant and her relatives.
III. There is a lack of any offer or acceptance.
IV. There is a lack of delivery of possession.

All these were found in favour of the Respondent in the lower court.

Analysis by the Court

The present court has gone well into analysing and scrutinizing the transactions
involved in the contexts of specific facts in the case. Firstly, the court determines that Zohra
is a pardanashin woman. The court comes to this conclusion as the appellants accept this fact,
and it is further noted that she adhered to the custom of seclusion during the period of iddat
and this evidence is conclusively shown in the case. Due to this, the appellant and her
relatives appealed to emotional blackmail, undue influence and reminding her of the
imminence of death. Being constantly reminded of her death, they persuaded her to make the
gift.

There is also plenty of misrepresentation involved. It was proved that Salehbhai

brought her to her sister’s house on a false pretext. This was done by lying that Nomanali was
sick whereas he wasn’t. There was also misrepresentation on the contents of the Hibanama. A
scribe, Baldeo, was brought in to draft the deed in Hindi, whereas, Zohrabai only understood
Urdu.

Further, no attempt was made to transliterate it. She was only told that it contained
information regarding only part of the property and ownership vests with her until her death.
It is proved that there was misrepresentation involved in this case. A principle from the case
Nathusa v. Mohammad Siddique was cited in this context. It was held in the aforementioned
case that when document is scribed in a language different from the mother tongue, it is not
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only required to read out the contents, but also to ensure that it is understood by the maker of
the deed.2

Another aspect considered by the court was the ability of the Pardanashin woman to
obtain independent advice. It was found that there were relatives of the Respondent living
nearby. However, no attempt was made to call them. This is particularly necessary as her own
relatives would give their opinion on good faith and can be trusted rather than relatives of the
Appellant. Here, the deed was completely attested only by the relatives of the Appellant.

Finally, the court discussed the delivery of possession in case of jointly held property
where it held that, an overt act was necessary which was of the intention that the donor
divests themselves of the full ownership of the property. No such act was effected and the
conduct of the parties indicated that there was no delivery of possession.

Implications
In this paper, the details of the case have been discussed in detail to highlight the level
of attention to detail the judges should practice while looking at situations involving
pardanashin women. The facts and witnesses can easily be manipulated as these women
aren’t used to standing independent and have been brought up dependant on others. The
courts should ensure the rights of these women are not lost and that they have equal access to
the justice system enshrined in the constitution. This judgement has given rise to a valuable
principle regarding the defference in treatment of Pardanashin women and of others. This is
necessary as societaly, not all of us are from an equal standing and this makes justice more
attainable by everyone.

There are other principles that have come to the forefront as well which show support
to these women. The case Kulsumun Nissa v. Ahmadi Begum,3 holds the burden of proof to be
on the one contending that there was sufficient knowledge and intention when a Pardanashin
woman executes a deed. This comes under Section 101 and 102 of the Indian Evidence Act,

2
Nathusa v. Mohammad Siddique, AIR 1939 Nag 159.
3
Kulsumun Nissa v. Ahmadi Begum AIR 1972 ALL 219.
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1872. Thus, this categorization is used to understand the nature of all sorts of contracts that
can be entered into by any Pardanashin.

When it comes to the question, ‘who is considered a Pardanashin?’ it should be

understood that the purdah is not the primary element though it might have been the
conceptual element. The case, Ashok Kumar v. Gaon Sabha,4 held that it is more concerned
with the group or class of people living in seclusion and have limited access to the outside
world. Any such women would be protected and it would be perversion of the rule to deny
protection on the ground that she isn’t a Pardanashin. In particular circumstances, this law is
also applied to men who are susceptible to get influenced as held in the case Daya Shankar v.
Bachi.5 Thus, the concept is being expanded on the prime position that it includes those
susceptible to influence, illiteracy, condition of seclusion etc.

This can be seen as a positive improvement given that its scope is extended and more
people will be protected from undue influence. However, this gives scope for misuse. As the
bar to prove independent decision making is much higher in such cases, more people would
try to take advantage and claim themselves to be part of the Pardanashin category. This may
have an adverse effect on the justice system and should be gurded against by the justice
system.

Upon coming to a more contemporary version of the conception, the Pardanashin 2.0,
it seems to bring to the fore some restriction to the application of this concept. A very recent
case Reshma v. Commissioner of Police,6 has discussed pardanashin in a context different
from Hiba alone. This court recognizes that Pardanashin is no longer a customary concept
and that it has transcended into being a wholly legal conept.7

However, there are flaws with this judgement that with regard to its other contentions.
This court has undermined the existence of Pardanashin women. It was held that the concept

4
Ashok Kumar And Anr. vs Gaon Sabha, Ratauli And Ors, AIR 1981 All 222.
5
Daya Shankar v. Bachi, AIR 1982 All 376.
6
Reshma v. Commissioner of Police, 2024 SCC OnLine Del 1523.
7
Arunima, ‘‘Pardanashin Woman is not religious but legal concept’; Delhi High Court upholds police authority
and women’s dignity beyond veil’ (2024) SCC Times < https://www.scconline.com/blog/post/2024/03/02/delhi-
high-court-pardanashin-woman-is-a-legal-concept-upholds-police-authority-legal-news/> accessed 16 May
2024.
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is not relevant in big cities especially in current times where everyone is expected to have
been educated. This seems to be a very arbitrary statement. This seems to change the priority
of the principle from the lived experience of each Pardanashin women and places more
relevance on a geneal category of ‘educated city people’. The court should take into
consideration that there are different parts in the same huge city which are urban and rural at
the same time and they co-exist. Even cities like Chennai, Delhi and Mumbai has a huge
numbers of slum population with inadequate means to education. Even caste practices are
very much prominent all over the country including the big cities.

Conclusion
The evolution of this concept, going from a purely religious and customary rule to an
elaborately discussed legal principle and the extent to which its application has been refined
has been discussed in the paper. Pardanashin women is no longer subject to any religion or
other distinctions and it stands as an independent category of people who require additional
protection in keeping their rights. The guidelines that should be mainly focused on by the
judiciary in distinguishing this category should be seclusion, illiteracy and susceptibility to
undue influence and coercion. This would allow the groups of people who really need it to
make use of it and the true expression of access to justice will be realized.
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Family Diagram

Ancestor Ancestor

Sister Salehbhai Nomanali Asmabai Taherali Zohra Bai Shamsherali

First Wife

M. Ali M. Hussain Hussaina Bai Kadar Bhai

Zainabai