CASE BRIEF

Background

In Mohommedan law, Newa Khori or Kharch-i-pandan is an allowance paid by the

husband to the wife for her personal expenditure 1. In most of the cases, it is specified in
the contract of marriage. The contract is entered into by the parents of the parties, in
case they are minors. In court of law, the wife as beneficiary can claim the allowance.
The allowance through Kharcha-i-Pandan belongs solely to wife and she has the
discretion where to spend it. In other words, a husband cannot take the liberty of his
wife to use Kharcha-i-Pandan as per his own will. The amount payable under this head
is distinct from that payable as maintenance and can be enforced by a wife even when
she lives separate.2

Facts of the Case

The plaintiff, namely Husaini Begum, who was a Mohommedan lady, married the son
of defendant, namely Khwaja Mohammad Khan. As per the custom of Islamic law, the
plaintiff was promised to be given Rs 500 as Kharch-i-Pandan. The agreement was
executed by the defendant as at the time of marriage, both the parties were minor. The
agreement could only be initiated after her reception into conjugal domicile, which
started after 6 years of their marriage. After 13 years of being together, the plaintiff
abandoned her husband’s home and stayed in Moradabad as a result of certain
altercations. The husband Rustam Ali Khan never bought an action against his wife for
the restoration of conjugal rights. The plaintiff sued the defendant for recuperation of
Kharch-i-Pandan.

1 Anney Sahib v. Abida Begum, AIR 1922 Oudh 251.

2 Ali Akbar v. Msi. Fatima, (1929) ILR 11 Lah. 85.

Issues
Did a contract between Khwaja Mohammad Khan and Husaini Begum existed, as
according to the rule of privity of contract, no stranger to contract can sue the concerned
party in order to enforce the contract.

Held
The plaintiff was allowed to enforce the contract. The court said that the rule of privity of
contract does not apply to the said case, as the facts and circumstances of this case are
different.

Ratio Decidendi

The court advocated the fact that in India and among communities circumstanced as the
Mahommedans, 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 entered into in connection with such contracts.
 CRITIQUE OF JUDGMENT

Denial of the claims of Unchastity

In order to evade the liability, the Defendant’s counsel tried to prove the misconduct of Hussaini
Begum, and it was asserted that her abandoning the conjugal domicile of her husband is an
implication of delinquency owing to which, the defendant should not be compelled to enforce
the contract. It is to be noted that under Section 125 of Criminal Procedure Code, where the term
“wife” is explained, every husband is entitled to pay her wife an allowance when she is living
separate. According to Muslim law, that allowance is ceased to be given when the immoral
character of wife has been proved. In the said case, the judges did not entertain this argument as
the same was not proved in the court and the plaintiff was given benefit of suspicion.
However it is to be noted that the subordinate court ruled in the favour of defendant on the basis
of Privity rule as propounded in Tweedle v Atkinson, which was later reversed by High Court.

Whether the Plaintiff is a party to Contract?

One of the two main objections raised by Defendant’s counsel in front of Honourable High
Court was that whether Hussaini Begum was a party to contract. The defendant contended that
on the basis of Tweedle v Atkinson, plaintiff cannot reap the fruit of contract as she was a
stranger. The court ruled out that the principle of common law in which no stranger can bring an
action to enforce the contract is not applicable to the said case. The court maintained that
Kharchi Pandan is analogous to pin-money and it ruled over the fact that a husband has control
over it. According to the Lordships “In India and among communities circumstanced as the
Mohommedans, 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.”

Whether the expense is given in Conjugal Domicile only?

The defendant contended that the Kharch-i-Pandan is ceased to be given to wife when she is
living separate from her husband. The Lordships observed that it’s not obligatory for wife to
claim the pin money while living in conjugal domicile only. The only essential component of
this
contract is when conjugal domicile is initiated, i.e. - When wife starts living with her husband.
This part of the contract was performed by plaintiff.
To examine the veracity of these facts, the defendant was herself made the witness, and
according to her testimony, her husband made frequent visits to her after the separation but
never tried to restore the conjugal rights through civil court. This proved that the defendant was
not of dishonest character and did not remarry after the separation. As a result, the court ruled in
plaintiff’s favour, and she was allowed to enforce the contract.
 CONCLUSION
One may argue that the rule of privity of contract is too austere and needs to be relaxed a little bit
in the wake of present circumstances. But the fact that this rule prohibits the third parties to
intervene and seek to enforce the court lightens the burden of courts on contractual matters.
However, supposing in a contract where a third member is an active member of negotiation in
contract is barred to enforce the contract (if any dispute arises) owing to Privity rule is arbitrary
and unjust. Thus, certain exceptions have been made in which a third party can approach the
court and seek to administer the contract, in which one of them is when the contract is made for
Beneficiaries under Trust or Charge or Other Arrangements. In Jackson v Horizon Holidays
(1975) Lord Denning ruled that compensation was not excessive for a holiday failing to match
19

the description of the holiday which had been purchased by the claimant, not only for himself,
but for his family.

Modern day statutes like Road Traffic Act, in which insurance can be claimed by third party
(Provided he has taken third person insurance cover), Contract (Rights of Third Parties) Act 1999
which specifically entitles a party who was supposed to benefit under a contract, even though
they were not a party, to be able to enforce the contract are some examples in which legislation
has foreseen the possibility of statutory exceptions to third person rule.

19 [1975] 1 WLR 1468 Court of Appeal