Women’s assets cannot be sold without their consent, says SC – Pakistan
ISLAMABAD: The Supreme Court has ruled that depriving an illiterate “parda-nashin” (covered) woman of a large part of her property without professional or independent advice, or without making her understand the act, is not legally viable .
“The real point is that the disposition of property must be substantially understood,” the Supreme Court said in a ruling written by Justice Muhammad Ali Mazhar.
Justice Mazhar was a member of a two-judge bench headed by Justice Sardar Tariq Masood, who appealed against an April 15, 2019 dismissal by the Rawalpindi Bench of the Lahore High Court of a civil judge’s competing findings of Rawalpindi and district and session judges.
The case concerns a deed of donation of property inherited by Mrs. Zaibunnisa and Mrs. Hameeda Bibi, both illiterate and parda-nashin, fraudulently prepared by their brother on a blank paper by means of a false declaration.
According to the judgment, the extensive evidence recorded in the trial court shows that the women were unaware of the type of document they were going to sign, so, taking advantage of their illiteracy, the brother managed the execution of the gift in its favor.
Nothing was recorded to prove that a disinterested, neutral or non-aligned person read the deed of donation to illiterate and parda-nashin women, the verdict notes. Such documents severely and gravely compromise the interests of illiterate and parda-nashin women in favor of anyone having a relationship of trust and profuse faith with them; they require rigorous testimony and authentication of execution with the assurance of independent and unbiased advice to such women with further confirmation and assurance beyond doubt that the description, repercussions and consequences/final outcome of the transaction have been fully explained and understood.
The burden of proof, according to the judgement, will always rest on the person who begs to maintain the transaction concluded with the parda-nashin or the illiterate woman to establish that the document was signed by her after becoming aware of the transaction, a declared the judgment. He added that it was imperative for the courts, as a diligent duty and obligation, that when dealing with cases of any document signed by parda-nashin or an illiterate woman, they should be satisfied with clear evidence that the document was, in fact, signed by her or by a duly constituted agent appointed by her with full knowledge and intelligence as to the nature of the document.
“Parda-nashin women have been given protection given social conditions which include an imperfect knowledge of the world being virtually excluded from communion with the outside world,” he said, adding that the rationale for this rule of wisdom and focus was obviously to protect them from deception, coercion and misrepresentation.
The verdict also cited a number of precedents from different jurisdictions to establish that it was for the person claiming the benefit of such a provision to establish affirmatively that it had been substantially understood by the woman and that it was really from his free and intelligent act. He added that if she was illiterate it must have been read to her and if the terms were complex they must have been properly explained.
The burden of proving that the transaction is legitimate and free from all suspicions and doubts surrounding it can only be proven if it has been established that the woman was fully aware and aware of the nature of the transaction and the likely consequences; that she had received independent advice from a reliable source/trusted person to fully understand the nature of the transaction; that the witnesses to the transaction were close relatives or knew the woman well and had no conflict of interest with her and that the consideration for the sale was duly paid and received by the woman in the same manner, in addition to the nature of the transaction has been explained to her in the language she fully understands and she has been informed of the content of the deed/receipt.
Posted in Dawn, May 21, 2022