1. The question that arises in this case does not so far appear to have come up for decision before any Court. The question is whether an agreement between a husband and wife to live separately can be urged in answer to a suit for restitution of conjugal rights by one of the parties. In this case the wife instituted a suit for restitution of conjugal rights against her husband and in answer the husband put forward an agreement between them to live separate. This plea was found against by both the Courts below and the second appeal is against the judgment of the appellate Court.
2. Under the English law it is well established that a pre-nuptial agreement to live separate would not be valid. Even a post-nuptial agreement would not be valid, if it is one to live separately in future. But a present agreement to live separately would be valid. See Chitty on Contracts, 22nd Edition paragraph 1200, where it is stated as follows:
Separation agreements between husband and wife were at one time regarded as contrary to public policy and invalid, especially in the ecclesiastical Courts, where they were not regarded as constituting bars to matrimonial relief. But in the Courts of Common Law and Chancery they were Frequently recognised, even by Lord Eldon, who often fulminated against them, and their validity was placed beyond challenge by the decision of the House of Lords in Wilson v. Wilson (1848) 1 H.L.C. 538 that specific performance of such an agreement might be decreed. The result is that agreements providing for the immediate separation of the spouses are not per se invalid, though they may be so on other grounds... But an agreement for future separation is entirely void whether made before or after marriage.
3. In Raydon on Divorce, 8th Edn., at page 215, in paragraph 97, it is stated as follows:
An agreement to live separate and apart, if alleged and proved, empowers the Court to refuse a decree for restitution of conjugal rights, where to pronounce a decree would be to treat one of the Spouses as deserting the other without reasonable cause, contrary to the truth of the case. And a deed of separation containing a covenant by the wife not to sue for restitution is a bar to her suit if the deed is pleaded and set up by the husband...
4. These may not provide a proper precedent in the conditions of this country, particularly in the background of the Hindu society. The only two cases in which this matter has been dealt with refer to pre-nuptial agreements and they held that such agreements are not valid. They are the decisions in Jakait Mon Mohini Jamalai V. Basanta Kumar Singh I.L.R. (1901) 28 Cal, 751 and Krishna Aiyar v. Balammal I.L.R. (1911) 34 Mad. 398. But they contain valuable discussions on the principles that apply to such matters. The case in Takait Mon Mohini Jamalai v. Basanta Kumar Singh I.L.R. (1901) 28 Cal, 751 deals exhaustively with the Hindu Law on the subject, and though the case relates to a pre-nuptial agreement, the discussions therein on the principles of Hindu Law and the Law of Contracts make it clear that an agreement like the present one would not be upheld by the Courts. At page 757 the following passage appears:
This brings us to the consideration of the question what is the Hindu Law upon this subject, It may be premised that though marriage under the Hindu Law is a contract, it is also a sacrament, it is more religious than secular in character...
5. Then follows at page 760 a citation from the book of Mr. Justice Banerjee on the Hindu Law,, of Marriage and Sridhana:
It follows from the very nature of the matrimonial relation that the husband and wife must each be entitled to the society of the other. It is one of the express conditions in the nuptial vow of the Hindus, that each party is to become the associate of the other.
6. Finally at page 763 the learned Judges sums up the effect of various texts on Hindu Law and various decisions on the subject as follows:
Having regard to the texts of the sages and the exposition thereof by different authors and eminent Judges, I think we may safely take it that the duty imposed upon a Hindu wife to reside with her husband wherever he may choose to reside is not only a moral duty but a rule of Hindu law.
7. It may be also mentioned that the rights of a wife and her husband are similar. Next follows a paragraph which after extracting Section 23 of the Contract Act proceeds:
Now it seems to me that, if it is a rule of Hindu Law that for the fulfilment of the duties which the law imposed upon a wife she must reside with her husband wherever he may choose to reside; an agreement on the part of the husband and that he will not be at liberty to remove his wife from her parent's abode to his own abode, would if permitted, defeat the clear rule of Hindu law, on the subject, and I may in this connection refer to some of the observations of Mr. Justice Banerjee in his Book on Hindu Law of Marriages, page 107, He says:
'The Hindu law upon this subject still retains its archaic character. Marriage in that law is not merely a contract but also a sacrament, and the rights and duties of the married parties are determined solely by the law, and are incapable of being varied by their agreement.'
8. It will be noticed that this statement of law is categoric and does not make a distinction between a pre-nuptial agreement and post-nuptial agreement or between an agreement for the present separation and the one for future separation. In that case also it was urged before the learned Judges that in certain decisions in England it had been held that a deed of separation containing a covenant that either the husband or wife should not sue for restitution of conjugal rights was valid. After discussing several English cases the learned Judge observes as follows:
The principle underlying the cases in which it has been held that contracts providing for present separation are valid, is, as I understand it, the preservation of the peace and reputation of families; while on the other hand, an agreement for future separation is bad and opposed to public policy. There is a fundamental difference between a case where an agreement for separate living for a time is entered into during the continuance of marriage and an agreement before or at the time of marriage controlling the rights of the parties which the law confers upon them after the marriage and which, if enforced, might make the marriage itself nugatory, or infructuous. Such an agreement would seem to be opposed to public policy. The agreement with which we are concerned is an agreement of that latter character... I am of opinion that the agreement is opposed to public policy.
9. Thus though the English law was relied upon as authority for the proposition that the particular agreement in that case which was a pre-nuptial agreement was opposed to public policy, this does not in any way whittle down the effect of the categorical statement of law which I have earlier extracted. In Krishna Aiyar v. Balammal I.L.R. (1911) 34 Mad. 398, the, agreement was a pre-nuptial agreement. But it was an agreement to live separately in future. At page 401, their Lordships observe as follows:
The parties are Hindus and Brahmans. The law to be applied in determining their marital obligations is the Hindu Law. It may be doubted whether under that law any agreement between husband' and wife to live apart from each other is valid. It may well be deemed to be forbidden by the Hindu Law. The authorities on the subject are set out and discussed in considerable detail by Mr. Justice Ghouse in Takait Mon Mohini Jamalai v. Basanta Kumar Singh I.L.R. (1901) 28 Cal. 751. It is unnecessary to consider whether there are any exceptions recognised by the Hindu Law... Even apart from the Hindu Law the agreement, we think, must be regarded as opposed to public policy and therefore not enforceable... Even if the question fell to be decided under the English Law, there can be no doubt that the agreement in this case to live apart is invalid. It is true that though the old ecclesiastical Courts refused to admit a deed of separation as a bar to a suit for restitution of conjugal rights it was held by the House of Lords in Wilson v. Wilson 9 E.R. 870, that an agreement for a present separation Was enforceable... Even if we applied the English rule we should be quite prepared to hold that the agreement in this case being one for future separation would be valid and constitute no answer to a suit for restitution of conjugal rights.
10. It will be noticed that though their Lordships have stated that the agreement in that case being one for future separation it would not be valid under the English Law, they put the decision also on the broader ground that it may be doubted whether under the Hindu Law any agreement between an husband and wife to live apart from each other is valid and it may well be deemed to be forbidden under the Hindu Law. The learned author of Mullah's Hindu Law, 13th Edition, however takes a different view. At page 645 he observes as follows;
There seems no reason why a valid agreement for immediate and not future separation bona fide entered into during the continuance of marriage with a view to enable the parties to live in peace should not be treated as empowering the Court to refuse a decree for restitution. It is submitted that a different rule would have the effect of enabling a party to get a decree for divorce on the ground of non-compliance with the decree for restitution on facts contrary to the truth of the case. Moreover a spouse who is living separate after a bona fide agreement of this nature cannot properly be said to have withdrawn from the society of the other spouses without reasonable excuse.
11. In the face of the view which the two Division Benches have taken on the subject, even though the question did not directly arise in those cases I find myself Unable to agree with the view set out above. The result would be that the agreement pleaded by the husband in the case would be no bar to the wife's suit for restitution of conjugal rights.
12. It should be mentioned that the wife has pleaded that the agreement in this case was taken from her by means of fraud and though the learned trial Judge was disposed to accept that plea he did not give a specific finding. The learned appellate Judge, however, did not discuss this aspect of the matter at all. In the view that I have taken on the law relating to the matter, I think it unnecessary to either consider this question on remand the matter for fresh consideration and disposal on this point. The result would be that the second appeal would stand dismissed. No costs. Leave granted.