Authored By : Maclean, Macpherson, C.H. Hill

Maclean, C.J.

1. This reference comes before us in a somewhat cumbrousshape. The provisions of sec. 69 of the Presidency Small Cause Court Actscarcely necessitated its being laid before us in its present form. I allude tothe number of questions submitted to us : I should have thought these mighthave been usefully abbreviated. The first question to which we ought to directour attention is, whether there was any consideration moving from the wife tothe husband for the agreement, Exhibit A.

2. The suit is one by the wife against her husband torecover the arrears of the allowance which her husband agreed to pay under theagreement in question.

3. Subject to the numerous questions which are referred, thelearned Judge in the Court below has found for the Plaintiff; but it is urgedfor the husband, that there was no consideration for the agreement moving fromthe wife. This view seems to me to be well founded.

4. The Plaintiff was not a party to the deed. The agreementrefers to mutual disagreement of mind "between the husband and wife : tothe probability of mutual quarrel," and thus proceeds:--"It havingbecome inconvenient for you in many respects to live as aforesaid (and) findingit difficult to live in my family, you have claimed proper maintenance andsuitable habitation from me, I therefore make the following provision for yourmaintenance (and) habitation by this ekrarnama."

5. The recitals point merely to quarrels and disagreementnot infrequent in married life : they do not indicate such a condition of affairsas would warrant the wife in claiming a separate residence and separatemaintenance from her husband.

6. Mr. Mayne, in his valuable work on Hindu Law (sec. 414),says;--and the authorities, I think, support his statement, see Matangini Dasiv. Jogendra Chunder Mullick : I.L.R. 19 Cal. 84 (1891)--"If she," that is, the wife, " quits the home of her ownaccord, either without cause, or on account of such ordinary quarrels as areincident to married life in general, she can set up no claim to separatemaintenance. Nothing will justify her in leaving her home except such violenceas renders it unsafe for her to continue there, or such continued ill-usage aswould be termed cruelty in the English Matrimonial Court."

7. There is no finding in this case of any such violence orill-usage. The recitals then in the agreement do not indicate such a state ofcircumstances as would, under Hindu Law, have justified the wife in obtaining aseparate residence or a separate maintenance, and the recitals do not show anyconsideration, moving from the wife for the agreement. There is no promise onthe part of the wife to do, or abstain from doing anything; she gives up noright. No such element which might constitute a consideration moving from heris suggested by her counsel, and I can see none. The learned Judge in the Courtbelow seems to have taken this view, for he finds the consideration in thenatural love and affection between the parties. Though not expressed, he saysthat must be implied. He relies upon the proviso to sec. 25 of the IndianContract Act. That section says that, "an agreement made withoutconsideration is void, unless it is expressed in writing and registered underthe law for the time being in force for the registration of assurances, and ismade on account of natural love and affection between parties standing in anear relation to each other." I am quite unable to accept this view, whichappears to me to be directly opposed to the recitals in the document. In my opinionthere was no consideration for this agreement moving from the wife, it was avoluntary arrangement on the part of the husband, and the present suit cannottherefore be maintained. It must be dismissed without costs. There will be nocosts of this reference, and the case must be remitted to the Court below.

Macpherson, J.

I am of the same opinion.

C.H. Hill, J.

I am also of the same opinion.

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Rajlukhy Dabee vs.Bhootnath Mookerjee (25.01.1900 - CALHC)