Maclean, C.J:— This reference comes before us in a somewhat cumbrous shape. The provisions of sec. 69 of the Presidency Small Cause Court Act scarcely necessitated its being laid before us in its present form. I allude to the number of questions submitted to us: I should have thought these might have been usefully abbreviated.
The first question to which we ought to direct our attention is, whether there was any consideration moving from the wife to the husband for the agreement, Exhibit A.
The suit is one by the wife against her husband to recover the arrears of the allowance which her husband agreed to pay under the agreement in question.
Subject to the numerous questions which are referred, the learned Judge in the Court below has found for the Plaintiff; but it is urged for the husband, that there was no consideration for the agreement moving from the wife. This view seems to me to be well founded.
The Plaintiff was not a party to the deed. The agreement refers to mutual disagreement of mind “between the husband and wife: to the probability of mutual quarrel,” and thus proceeds:—“It having become inconvenient for you in many respects to live as aforesaid (and) finding it difficult to live in my family, you have claimed proper maintenance and suitable habitation from me, I therefore make the following provision for your maintenance (and) habitation by this ekrarnama.”
The recitals point merely to quarrels and disagreement not infrequent in married life: they do not indicate such a condition of affairs as would warrant the wife in claiming a separate residence and separate maintenance from her husband.
Mr. Mayne, in his valuable work on Hindu Law (sec. 414), says;—and the authorities, I think, support his statement, see Matangini Dasi v. Jogendra Chunder Mtdlick(1)—“If she,” that is, the wife, “quits the home of her own accord, either without cause, or on account of such ordinary quarrels as are incident to married life in general, she can set up no claim to separate maintenance. Nothing will justify her in leaving her home except such violence as renders it unsafe for her to continue there, or such continued ill-usage as would be termed cruelty in the English Matrimonial Court.”
There is no finding in this case of any such violence or ill-usage. The recitals then in the agreement do not indicate such a state of circumstances as would, under Hindu Law, have justified the wife in obtaining a separate residence or a separate maintenance, and the recitals do not show any consideration, moving from the wife for the agreement. There is no promise on the part of the wife to do, or abstain from doing anything; she gives up no right. No such element which might constitute a consideration moving from her is suggested by her counsel, and I can see none. The learned Judge in the Court below seems to have taken this view, for he finds the consideration in the natural love and affection between the parties. Though not expressed, he says that must be implied. He relies upon the proviso to sec. 25 of the Indian Contract Act, That section says that, “an agreement made without consideration is void, unless it is expressed in writing and registered under the law for the time being in force for the registration of assurances, and is made on account of natural love and affection between parties standing in a near relation to each other.” I am quite unable to accept this view, which appears to me to be directly opposed to the recitals in the document.
In my opinion there was no consideration for this agreement moving from the wife, it was a voluntary arrangement on the part of the husband, and the present suit cannot therefore be maintained. It must be dismissed without costs. There will be no costs of this reference, and the case must be remitted to the Court below.
Macpherson, J.:— I am of the same opinion.
Hill, J.:— I am also of the same opinion.
Mr. C.C Bose, Attorney for the Plaintiff.
Messrs Kally Nath Mitter & Sarbadhicary, Attorneys for the Defendant.