B.C. Varma, J.
1. The defendant/appellant appeals against the decree granted in favour of the plaintiff/respondent for maintenance.
2. The respondent/plaintiff Narbadabai sought to enforce her right of maintenance granted to her by Seth Kishanlal Jain who was the husband of appellant Gulabbai. Appellant Gulabbai died during the pendency of this appeal and is now reprcsenled by her legal representative. It is no more in dispute now that Narbadabai was the mistress of Kishanlal Jain. She came in the keeping of Kishanlal when she had already a husband living. Kishanlal executed an agreement dated 4-5-1966 (Ex. P/5) whereby he undertook to pay certain amount and articles of food and certain clothing to her during her lifetime and also declared that after his death his heirs would also be bound to maintain her in the same way. This maintenance was granted to her for her life. Accepting her claim under this agreement, the lower appellate Court while reversing the decree of the trial Court, has decreed her suit,
3. Shri A. R. Choubey, learned counsel for the appellant, some what faintly argued that the document (Ex. P/5) was inadmissible in evidence for want of registration. This argument must be rejected for the simple reason that it does not purport to transfer any immovable property. It only permits the plaintiff Narbadabai to occupy a room in the house during her lifetime. Thus, under that agreement, Narbadabai was permitted to occupy a room as a licencee. That being so the document does not require registration. No other objection was raised to its admissibility. I, therefore, hold that agreement (Ex. P/5) is admissible in evidence. I may point out that its execution was not challenged by the appellant.
4, Shri Choubey, however strongly argued that the contract embodied in the document (Ex. P/5) is not enforceable for the reason that its consideration was immoral and was hit by Section 23 of the Contract Act. Elaborating this argument, learned counsel submitted that the cohabitation of Narbadabai with Kishan-lal amounted to an offence as at that time her husband was living and therefore, such cohabitation cannot form any valid consideration for any contract. It was also submitted that if the consideration for Ex. P/5 is taken to be the past cohabitation of Narbadabai with Kishanlal it will not be a good consideration in the eye of law. It was lastly added that under the Hindu Adoptions and Maintenance Act, 1956, a person is not bound to maintain his keep or mistress. Contract, the enforceability of which is not the subject of any positive enactment, may yet be unenforceable by virtue of operation of rules of public policy. Section 23 of the Indian Contract Act, 1872 expressly enacts that the consideration for the object of an agreement is lawful unless......... it involves or implies injury to the person or property of another; or the Court regards it as immoral or opposed to public policy. It further provides that in such a case the consideration or object of the agreement is unlawful and every agreement of which the object or consideration is unlawful, is void. Then Section 24 provides that if any part of a single consideration for one or more objects, or any one or any part of any one of several considerations for a single object, is unlawful, the agreement is void. However, the aspect of immorality with which the Courts of law have actually dealt with is sexual immorality. In Anson's Law of Contract, 25th Edition, at page 356. as Australian Judge in a recent judgment is quoted to say that social judgments of today upon matters of immorality are different from those of the last century as in the bikini from a bustle. The learned author on strength of certain authorities has said. 'The law has to a considerable extent come to terms with the fact that a man and woman may set up home together and produce children in a stable relationship without being married and has afforded to the woman rights in the 'matrimonial home' equivalent to those of a wife. Such rights (which may be contractual in nature) have not been denied on the ground of immorality. Cohabitation of a male with a female other than his wife had always been held to be immoral and has under certain case where the woman had already a husband living is said to be illegal and even an offence. The public policy is that no Court will lend its aid to a man who founds his cause of action upon an immoral or illegal act, and a guilty party cannot be permitted to bring an action upon a contract or to enforce it.'
5. Where, however, a man and a woman live and cohabit together although not lawfully married to each other, and the man in consideration of the past cohabitation contracts to transfer property or to make provision for her maintenance, the question often arises as to the enforceability of such a contract. In Godfrey v. Parbati, AIR 1938 Pat 502, it was held that a contract to compensate a woman for what she had lost on account of past cohabitation with the promisor was not immoral. That was a case of an agreement to pay maintenance allowance to a discarded woman. And in a Madras case (Kothandapani v. Dhanammal, AIR 1943 Mad 253 a promissory note executed in consideration of past illicit intercourse was held to be valid and enforceable. A Division Bench of this Court, consisting of Hidayatuliah, C. J. (as he then was) and Choudhary. J., in Mst. Manta v. Ajabsingh, L.P.A. No. 8 of 1955. D/- 31-7-1957 (Madh Pra) expressed itself on this subject in these terms :
'In our opinion the question is not really so much one of the legal relationship between a man and a woman as of equity that a women, who has been kept for a number of years should not be left to starve after she has been driven away by the man who kept her. We are in agreement with the view taken in the Patna and Madras cases and the recent Bombay case, and hold that an agreement for maintenance of or a gift of property to a concubine would be valid if it is for past colabitation.'
In arriving at this opinion, the Division Bench after referring to the decision of the Bombay High Court in Hussainali v. Dinbai, AIR 1924 Bom 135 taking a somewhat different view and stronaly relied upon by the learned counsel for the appellant, proceeded to say that in a later decision in Istak Kamu v. Ramchand Zipru, AIR 1947 Bom 198 a transfer made out of gratitude for or with the idea of recompensating for past cohabitation is not per se void. Reliance was also plared on Dhiraj Kaur v. Bikramajit, (1881) ILR 3 All 787.
6. Learned counsel for the appellant referred me to the decision in Alice Mary Hill v. William Clarks, (1905) ILR 27 All 266. There the question which fell for decision was whether a married woman could sue for maintenance for past cohabitation. Finding that the past cohabitation was adulterous, it was held that adultery being the consideration or an indivisible part of the consideration for an agreement entered into India, the agreement was not only immoral but also illegal and the contract was void. Thus, the main consideration to hold the contract void was that adultery formed the consideration of the contract. The trend of the subsequent decisions including the Division Bench decision of this Court is that a contract for which past cohabitation is the consideration, is not void, and, in my opinion, this trend must be followed. This apart, so far as the present case is concerned, it cannot be said that the appellant has been able to show that the cohabitation amounted to an offence of adultery as defined in Section 497 of the Indian Penal Code according to which sexual intercourse, not amounting to rape, is adultery only when a person has sexual intercourse with a person who is or who he has reason to believe to be the wife of another man without the consent or connivance of that man. There is no such evidence in the case. The illegality and immorality of contract and its unenforceability on that count was not even pleaded. It is true that a Court will not enforce an illegal contract even I hough the illegality is not found pleaded but is duly brought to the notice of the Court and if the person invoking the aid of the Court is himself implicated in the illegality. But then where facts are necessary to make a contract illegal, those facts must be pleaded and the illegality must be borne out from the proved facts. Thus, before the cohabitation which formed the consideration of contract in question can be said to be adultery and, therefore, illegal, it should have been shown by the appellant that Seth Kishanlal knew that Narbadabai had a husband living and that the cohabitation was without the consent or connivance of that husband. Needless to say that this was not the defence set up and therefore, no such facts are on record. That being so, this case is distinguishable on facts from the present case and renders no assistance to the appellant. For the appellant reliance was also placed upon yet another decision in Ramanarasu v. Buchamma, (1900) ILR 23 Mad'282. There the question was whether a woman, who was kept by a men as his concubine continuously for a number of years and was then discarded could recover maintenance under the Hindu Law. The claim there was analogous to a claim by the wife for maintenance against her husband personally. This claim was denied as not recognised under the Hindu Law. This case, therefore, is no authority for the question under consideration in the present case.
7. The agreement is question (Ex. P/5) recites that Narbadabai had been living in exclusive keeping of Seth Kishanlal for the past about 50 years and that Narbadabai was entitled to claim maintenance as therein mentioned during her lifetime from the estate of Kishanlal. The consideration for this agreement apparently is the past cohabitation for a period of about 30 years. This cohabitation is not shown to be adulterous. Instead the plea is that Narbadabai did live as Dasla, was devoted to the services of Kishanlal and on 14-10-1971 was given a lump sum amount of Rs. 6,800 by Kishanlal whereafter she severed all her relations with Kishanlal. This payment has not been found to be true. On this state of pleadings and the evidence, and in view of the law discussed above. I am of the opinion that the agreement (Ex. P/5) embodies a valid contract and is enforceable.
8. Yet another argument in support of the appeal is based upon the provisions of Section 4 read with Sections 21 and 22 of the Hindu Adoptions and Main- tenance Act, 1956. What is argued is that since Seth Kishanlal died subsequent to the coming into force of this Act. Narbadabai could not claim any maintenance out of the estate of Kishanlal in the hands of the appellant because the respondent is not one of the dependents mentioned in Section 21 of the Act as 'dependents'. Section 4 of the Act gives overriding effect to the other provisions of the Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Act and enacts as follows:
'4. Save as otherwise expressly provided in this act,--
(a) any text, rule or interpretation of
Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any -matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.' Interpreting the provisions contained in Sections 4, 21 and 22 of the Act, a Full Bench of the Andhra Pradesh High Court in Ramamoorty v. Sitharamamma, AIR 1961 Andh Pra 131 held that these sections do not create bar on the pre-existing rights of the maintenance holder and those rights are left untouched. It has been held that a right of maintenance acquired by a concubine against the estate of her deceased paramour prior to the Act is not nullified by the Act. since Sections 21 and 22 leave the estate of a Hindu whose death occurred before the Act unaffected. It has further been held that these sections apply to cases where the Hindu dies after the commencement of the Act. This Full Bench decision of the Andhra Pradesh High Court has been approved by the Supreme Court in Raja Gopala Rao v. Sitharamamma, AIR 1965 SC 1970 The Supreme Court while approving another decision of the Bombay High Court in Akku Prah-lad v. Ganesh Prahlad, AIR 1945 Bom 217 held that a married woman who left her husband and lived with her paramour as his permanently concubine could claim a status of an Avarudha Stree by remaining faithful to her paramour. She could claim maintenance from the estate Of her paramour as long as she preserved her sexual fidelity to him. Turning to Sections 4, 21 and 22 of the Act, the Supreme Court held that these sections do not have the effect of destroying her right of maintenance out of the estate of a deceased Hindu which had vested in her under the Hindu Law in force at the time of his death before the commencement of the Hindu Adoptions and Maintenance Act, 1956. The right thus accrued as a result of the death prior to the commencement of Hindu Adoptions and Maintenance Act, 1956 is not destroyed or affected by Sections 21 and 22 read with Section 4 of the Act. Since, however, in the present case the right is not founded upon any text or rule of Hindu Law whether before or after the Hindu Adoptions and Maintenance Act but is based upon a contract, which I have held to be enforceable, the provisions contained in Section 4 read with Sections 21 and 22 of the Act will not bar the enforcement of the right created under the agreement (Ex. P/5) against the estate of the deceased. In my opinion, therefore, this argument also does not help the appellant.
9. The quantum of the maintenance awarded was not challenged before me. The appeal fails and is dismissed with costs. Counsel's fee Rs. 100/-.