1. The short point that arises for consideration in this appeal is whether the agreement upon which the suit is based is immoral and opposed to public policy and as such unenforceable under Section 23, Contract Act. The Courts below concurred in holding that the agreement created a valid and enforceable contract and decreed the suit. The defendant has come up in second appeal.
2. Briefly stated, the facts that led up to the suit claim are these: Jayamma the plaintiff is a married woman, having had a child by her husband. She was living with her father having been deserted by her husband, whose whereabouts remain unknown. The defendant who is also a married man, living with Ms family in the vicinity, is alleged to have had criminal intimacy with her for some time while she lived with her father and later he. took her into his own house, where the two lived together apparently as man and wife. The result of their living together was that she conceived and the defendant made arrangements to send her to the hospital for confinement and ultimately she delivered a female child. During her residence with the defendant, an agreement was executed in her favour by the defendant on 10-3-1946, under the circumstances which will be adverted to later. The plaintiff has filed the suit on the basis of the said agreement, claiming a maintenance of Rs. 30/- per month. The defendant admitted the execution of the said agreement but pleaded that it was the outcome of fraud, force and coercion; he further, pleaded that the consideration for the agreement was opposed to public policy and offends Section 23, Contract Act. The said agreement runs thus :
'Jayamma, daughter of Angadi Subba Rao living as tenant in house No. 11, in the said Narasimharaja Colony came to my house on the 24th day of December 1945 and she is living therein. She has a daughter about 2 years old. Since that date both of them are living in my house and under my protection. When she came to my house neither she (as per original) nor her husband, nor her lather told me anything about her protection or maintenance. Even afterwards they did not tell. Since the time she came I have been keeping the said Jayamma and her child as per her desire under my care and in my house. I am hound to make proper arrangement for the maintenance of the said Jayamma and her baby. That is if she remains obedient to me I will make all arrangements for her maintenance during her lifetime. I will maintain the said Jayamma and her child in the same manner in which I would maintain my own family and see that she will have no trouble whatsoever while she stays with me. In case she deserts and goes away with her children, I have agreed to pay from the time a sum of RS. 30/- per month for her maintenance. Apart from this there is no other relief to be given. If this maintenance is not paid every month, the same may be recovered out of the liabilities of my property.'
3. Mr. B. Venkata Rao, learned counsel for the appellant urged that in addition to the past services, the agreement contemplated future cohabitation) the two together forming consideration for the agreement and consequently the contract is rendered immoral and opposed to public policy. In support of his contention he relied upon the decision reported in -- 'Alice Marry Hill v. William Clarke', 27 All 266. In that case, the plaintiff was in the service of the defendant, and they lived together as husband and wife; the agreement executed by the defendant, recited that out of gratitude to the plaintiff for the past services and 'with a view that she may continue in my service. I bind myself in case I may dispense with her services to pay to her so long as I may be alive Rs. 50/- per mensem.' On these facts Aikman J. held that future cohabitation was at least part of the consideration was for the agreement and that this was shown very clearly by the words 'with a view that she may continue in my service' and that the agreement was therefore opposed to public policy and as such unenforceable. The Allahabad case is distinguishable from the facts of the present case, which bear a close similarity to the case of this Court reported in -- '50 Mys HCR at p. 86'. In the Mysore case an unmarried woman was forced to live with a man and at a certain stage it was agreed that a sum of Rs. 1000/- should be paid by the man to the woman for having done wrong to her. On these facts, Venkataramana Rao C. J. held that the promise contained in the agreement to continue to protect the woman, as he was in honour bound to do, did not form part of the bargain by which he agreed to give the said compensation and as such the agreement was perfectly valid and enforceable.
4. Obviously, the crucial consideration in cases of this kind is this: What is the real consideration for the agreement? The case has to be decided upon the construction of the document itself with the help of such extrinsic evidence, if any, of the circumstances as may be available to show the relationship of the written agreement to the existing facts. If the evidence discloses specifically that future cohabitation formed part of consideration, then it is clearly void in law and equity; but if the agreement relates to past cohabitation, it is not rendered invalid by the mere fact that the parties contemplated a continuance of cohabitation (-- Re: 'Wootten Issacson, Sanders v. Smiles', (1904) 21 TLR 89: 7 Halsbury p. 400). In -- 'Vallanee v. Blagden', (1884) 26 Ch D 353, six months before his death a testator gave a bond to a lady with whom he had cohabited for more than 30 years, conditioned for payment to her at the expiration of two years of a sum of money and interest and he continued to cohabit with her until his death. There was nothing on the face of the bond with reference to cohabitation and there was no evidence that it was in fact given to secure the continuance of cohabitation. Kay J. held that the mere continuance of the cohabitation was not enough to raise the presumption that the bond was given in consideration of future cohabitation and accordingly that the bond was good. The principles governing such contracts were summarised by Lord Selborne thus:
'Most of the older authorities on the subject of contracts founded on immoral consideration are collected in the note to -- 'Benyon v. Nettlefold', (1850) 3 Mac & G 94 at P. 100. Their results may be stated: (1), Bonds or covenants founded op past cohabitation, whether adulterous, incestuous, or simply immoral are valid in law and not liable (unless there are other elements in the case to be set aside in equity) (2) such bonds or covenants, if given in consideration of future cohabitation, are void in law, are therefore of course also void in equity. (3) Relief cannot be given against any such bonds or covenants in equity if the illegal consideration appears on the face of the instrument ( -- 'Gray v. Mathias', (1800) 5 Ves 286) (4) If an illegal consideration does not appear on the face of the instrument, the objection of 'particeps criminis' will not prevail against a bill of discovery in equity in aid of the defence to an action at law (5) Under some (but not under all) circumstances when the consideration is unlawful and does not appear on the face of the instrument, relief may be given to a 'particeps criminis' in equity'. (Vide Ayerst v. Jenkins', (1873) 16 Eq 275 at PP. 281, 284: 42 LJ Ch 690).
Commenting on this Pollock says 'The exception alluded to in this last sentence is probably this that 'where a party to the illegal or immoral purpose comes himself to be relieved from the obligation, he has contracted in respect of it, he must state distinctly and exclusively such grounds of relief as the Court can legally attend to'. He must not put his case on the ground of immoral consideration having in fact failed or complain that the instrument does not correctly express the terms of an immoral agreement'. In his book on Contracts (12th Edn., p. 279) Pollock further states that 'where a security is given on account of past cohabitation and the illicit connection, if afterwards resumed or even is never broken of the Court will not presume from that fact alone that the real consideration was future as well as past cohabitation, not therefore treat the deed as invalid.'
5. Applying these principles to the facts of the present case, what do we find? The agreement was given by the defendant to the plaintiff with whom admittedly he had been cohabiting; there is not a word on the face of the bond with reference to future cohabitation; if there had been, the bond would have become void. No doubt there may be circumstances under which the Court will admit extrinsic evidence to show that in fact the consideration for the bond was the continuance of illicit cohabitation. The question is whether there is any such evidence here. A careful consideration of the pleadings and the oral evidence adduced in the case shows that there is no such evidence. In fact, the averments in para three of the plaint to the effect that the plaintiff began to live with the defendant in his house on or about December 1945 that the_ plaintiff's father and her well-wishers, residents of the locality contacted the defendant and pointed out to him the way in which he had wronged the plaintiff and brought dishonour to her and her parents' house and that the defendant admitted his folly and as compensation for the wrong done to the plaintiff executed in favour of the plaintiff the agreement dated 10-3-46, were not specifically traversed in the written statement. The allegation that the agreement was executed as compensation for the wrong done to the plaintiff clearly indicates that the agreement was in respect of past cohabitation; this is neither denied nor canvassed otherwise in evidence; the defendant rested his contention on the ground that the suit document was unenforceable as it was brought about by force and fraud. There remains therefore the interpretation of the suit agreement dated 10-3-46 marked Ext. A,
6. Exhibit A the suit agreement, extracted above in extenso, is alleged to have been brought about by fraud and force; and it need hardly be said that the defendant has totally failed to substantiate the same. Both the Courts have therefore rightly held that it is not vitiated by fraud but that it is a genuine document voluntarily executed by the defendant. In Ext. A, it is recited that the plaintiff went to reside in the defendant's house on 24-12-1945 and that she was living there with the defendant; thereafter the agreement continues that 'I am bound to make proper arrangements for the said Jayamma and her baby'. The mode of arrangement for maintenance is two fold: that if she remains obedient to him, he will make all arrangements for the maintenance during her lifetime on the same lines as his own family members; and that in case she leaves him, he agreed to pay from that time, a sum of Rs. 30/- per mensem for her maintenance. The undertaking to protect her while she lives in his house, obedient to him, bears no manner of connection with, and may be regarded as a mere surplusage in relation to the independent liability arising on the happening of the contingency, of her leaving him. During her stay with the defendant, after the date of the agreement, it may be that future cohabitation is not ruled out; as observed above, the mere continuance of cohabitation raises no kind of presumption that the bond was given for an immoral purpose. I am therefore of opinion that the suit agreement containing a stipulation to pay future maintenance is not vitiated by the mere fact that cohabitation might have been in contemplation as it did not form part of the consideration and in consequence does not offend Section 23, Contract Act.
7. In the result, I find no reason to differ from the concurrent decisions of the Courts below. The appeal therefore fails and is dismissed with Costs.
8. Appeal dismissed.