1. The suit which has given rise to this appeal was brought by the plaintiff, a Mahomedan lady, against the defendant, her father-in-law, to recover arrears of certain allowance, called Kharch-i-pandan, under the terms of an agreement executed by him on the 25th October, 1877, prior to and in consideration of her marriage with his son Rustam Ali Khan, both she and her future husband being minors at the time.
2. The agreement in question recites that the marriage was fixed for the 2nd November, 1877, and that "therefore" the defendant declared of his own free will and accord that he " shall continue to pay Rs. 500 per month in perpetuity " to the plaintiff for " her betel-leaf expenses, etc., from the date of the marriage, i.e., from the date of her reception, " out of the income of certain properties therein specifically described, which he then proceeded to charge for the payment of the allowance.
3. Owing to the minority of the plaintiff, her " reception " into the conjugal domicile to which reference is made in the agreement does not appear to have taken place until 1883. The husband and wife lived together until 1896, when, owing to differences, she left her husband's home, and has since resided more or less continuously at Moradabad.
4. The defendant admitted the execution of the document on which the suit is brought, but disclaimed liability principally on two grounds, viz., (I) that the plaintiff was no party to the agreement, and was consequently not entitled to maintain the action, and (2) that she had forfeited her right to the allowance thereunder by her misconduct and refusal to live with her husband.
5. Evidence of a sort was produced to establish the allegations of misconduct, but the Subordinate Judge considered that it was not "legally proved." In another place he expresses himself thus: "Although unchastity is not duly proved, yet 1 have no hesitation in holding that plaintiff's character is not free from suspicion." Their Lordships cannot help considering an opinion of this kind regarding a serious charge as unsatisfactory. Either the allegation of unchastity was established or it was" not; if the evidence was not sufficient or not reliable, there was an end of the charge so far as the particular matter in issue was concerned, and it was hardly proper to give expression to what the Judge calls "suspicion."
6. The Subordinate Judge, however, came to the conclusion that the plaintiff's refusal to live with her husband was satisfactorily proved, and, holding that on that ground she was not entitled to the allowance, he dismissed the suit.
7. The plaintiff thereupon appealed to the High Court, where the argument seems to have been confined solely to the question of the plaintiff's right to maintain the action, as the learned Judges observe that neither side called their attention to the evidence on the record. They hold that she had a clear right to sue under the agreement, and they accordingly reversed the order of the first Court and decreed the plaintiff's claim.
8. The defendant has appealed to His Majesty in Council, and two main objections have been urged on his behalf to the judgment and decree of the High Court.
9. First, it is contended, on the authority of Tweddle v. Atkinson (1861) 1 B. & S. 393, that as the plaintiff was no party to the agreement, she cannot take advantage of its provisions. With reference to this it is enough to say that the case relied upon was an action of assumpsit, and that the rule of common law on the basis of which it was dismissed is not, in their Lordships' opinion, applicable to the facts and circumstances of the present case. Here the agreement executed by the defendant specifically charges immoveable property for the allowance which he binds himself to pay to the plaintiff j she is the only person beneficially entitled under it. In their Lordships' judgment, although no party to the document, she is clearly entitled to proceed in equity to enforce her claim.
10. Their Lordships desire to observe that in India and among communities circumstanced as the Mahomedans, among whom marriages are contracted for minors by parents and guardians, it might occasion serious injustice if the common-law doctrine was applied to agreements or arrangements entered into in connection with such contracts.
11. It has, however, been urged with some force that the allowance for which the defendant made himself liable signifies money paid to a wife when she lives with her husband, that it is analogous in its nature to the English pin-money, over the " application of which the husband has a control, and that, as the plaintiff has left her husband's home and refused to live with him, she has forfeited her right to it.
12. Kharch-i-pandan, which literally means " betel-box expenses," is a personal allowance, as their Lordships understand, to the wife customary among Mahomedan families of rank, especially in upper India, fixed either before or after the marriage, and varying according to the means and position of the parties. When they are minors, as is frequently the case, the arrangement is made between the respective parents and guardians. Although there is some analogy between this allowance and the pin-money in the English system, it appears to stand on a different legal footing, arising from difference in social institutions. Pin-money, though meant for the personal expenses of the wife, has been described as " a fund which she may be made to spend during the converture by the intercession and advice and at the instance of the husband." Their Lordships are not aware that any obligation of that nature is attached to the allowance called Kharch-i-pandan. Ordinarily, of course, the money would be received and spent in the conjugal domicile, but the husband has hardly any control over the wife's application of the allowance, either in her adornment or in the consumption of the article from which it derives its name.
13. By the agreement on which the present suit is based the defendant binds himself unreservedly to pay to the plaintiff the fixed allowance; there is no condition that it should be paid only whilst the wife is living in the husband's home, or that his liability should cease whatever the circumstances under which she happens to leave it.
14. The only condition relates to the time when, and the circumstances under which, his liability would begin. That is fixed with her first entry into her husband's home when, under the Mahomedan Law, the respective matrimonial rights and obligations come into existence. The reason that no other reservation was made at the time is obvious. The plaintiff was closely related to the ruler of the native state of Rampur; and the defendant executed the agreement in order to make a suitable provision for a lady of her position. The contingency that has since arisen could not have been contemplated by the defendant.
15. The plaintiff herself was examined as a witness for the ' defence. She states in her evidence that she has frequently been visited by her husband since she left his home. Neither he nor the defendant has come forward to contradict her statements. Nor does any step appear to have been taken on the husband's part to sue for restitution of conjugal rights,, which the Civil Law of India permits. On the whole their Lordships are of opinion that the judgment and decree of the High Court are correct and ought to be affirmed.
16. Their Lordships will therefore humbly advise His Majesty that the appeal be dismissed.
17. The appellant will pay the costs.