Civil Procedure-Mohammedan law=-Sharia rules of evidence applied in II fam-
ily la~ case between Muslims

Family law-Maintenance-Right of wife to necessmy maintenanc« lind trIlJ1el-
ling expenses-Application of Sharia standards of proof where both partia
are Muslims.

The plaintiff, husband and father of the defendants, gave to the de-
fendants goods found to be worth iE.100 to be used for their maintenance

during his absence on a trip away from home. When, the husband re-

turned fourteen months later he found that the defendants had spent all
of the money except £E.20, whereupon he divorced the wife and brought
this action alleging that the defendants had wasted his property. '!be
Court of Appeal looked to Mohammedan law on the question, and applied
a Mohammedan law rule that if the wife shows reasooable cause for haviq
spent such sums as are reasonable in the cin:omstances. aDd if she takes IIIl
oath that she has actually spent such sums, then the ~ cannot claim
anything from her.

Appeal

February 7, 1928. Bell C.l. The facts of the case are as
follows: This is a case of a husband who entrusted to his wife
property to be used by' her for her and her son's maintenance and
expenses in his absence. When he joins her fourteen months later;
quarrels occur, he divorces her and alleges that she has' wasted all
his property.

The plaintiff went away from the Hejaz, leaving his wife and
her son, who are the defendants. Before he left the plaintiff delivered
to the defendants animals and goods, which they were to use for their
living and travelling expenses.

The plaintiff values these goods at a large sum; the defendants
say that they sold all tJ.le goods for £E.82 and no more; the court has
found that the defendants must account for £E.I00. The evidence
upon which the court found the defendants liable for the £E.18 in •
addition to the £E.82 they admitted is very slender. . However, for,

• Court: Bell C.J., Owen and Hamilton-Grierson JJ.

the purposes of this judgement, the point is not material, and 1 accept
the findings of the court.

Against this £E.I00 the court set off £E.20, which the defen-
dants had paid ·to the plaintiff. It does not matter whether this £E.20.
was paid before or after the goods were delivered to the defendants.
On the finding of the court, the defendants were clearly entitled' to set
off this amount.

This leaves £E.80 for the expenses of the defendants.' They
say that they spent the whole of this sum, and more, on travelling in
the Hejaz, and on living and clothing expenses of the female defendant

        during a period of about fourteen' months.                                        .

The defendants obviously did spend a certain s~ of money on
these things, and equally obviously they cannot produce any' accurate
account or proof of how much they did spend. The question there-
fore is, on whom is the burden of proof?

~ The parties are both Mus~s, and for this reason, and as' the
parties were man and wife, we have thought it desirable to ascertain
what view the Islamic law would take of such a case; The answer
is, that where a husband entrusts his wife with property for the pur-
pose above mentioned, and the wife shows reasonable' cause for having
spent properly such sums as in the circumstances are reasonable, then, .
if the wife takes the oath that she has spent such sums the husband
is estopped from claiming anything from her. In a case of this kind
between' husband and wife, it is unreasonable and unjust to expect a
strict account of every piastre paid by the wife. Attempts have' been
made to settle the dispute by native intervention, but w~oui success.
I propose therefore to deal with it in the way indicated in the preced-
'ing paragraph, which seems to me both just and fair.

In the circumstances of the case, having regard to the distance
which the defendants had to travel, the time which elapsed before the
plaintiff t?appeared, the fact that the defendants were leaving a country
in whi~ conditions were unsettled, and had to settle down in a ·new
country, I do not think that it is possible to say that £;E.80 is an
unreasonable sum to have spent.

I therefore think that, if the defendants swear that they properly.'
spent, for travelling expenses and for living expenses for the female
defendant, all the money which they received from the plaintiff, -the

, appeal must be allowed, and the claim against the defendants must
be dismissed.