A.E. Thirumal Naidu vs Rajammal

Alagiriswami, J.—The question that arises in this case does not so far appear to have come up for decision before any court. That 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 courts below and the second appeal is against the judgment the

appellate court.

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. 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 Edn. 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 HLC 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.

In Reyden on Divorce, 8th Edn. at page 215, in paragraph 197, 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.................

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 Takait Mon Mohini Jamalai v. Basanta Kumar Singh, ILR (1901) Cal 751 and Krishna Aiyar v. Balammal, ILR (1911) Mad

But they contain valuable discussions on the principles that apply to such matters. The case in ILR (1901) 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 p. 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.................

Then follows at p. 760 a citation from the book of Mr. Justice Banerjee on the Hindu law of Marriage and Stridhana:

if 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.

Finally at p. 763 the learned Judge 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 chose to reside is not only a moral duty, but a rule of Hindu law.

It may be also mentioned that the rights of a wife and her husband are similar. Next follows a paragraph which after extracting Sec. 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 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 observation of Mr. Justice Banerjee in his Book of 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 the incapable of being varied by their agreement.

It will be noticed that this statement of law is categorical and does no 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 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 opinion that the agreement is opposed to public policy.

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 ways whittle down the effect of the categorical statement of law which I have earlier

extracted. In ILR (1911) Mad 398, the agreement was a pre-nuptial agreement. But it was an agreement to live separately in future. At p. 401.

their Lordships observe as follows--

The parties are Hindus and Brahmans. The law to be applied in determining their material 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 Ghose in ILR (1901) 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 (1848) 9 ER 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 invalid and constitute to answer to a suit for restitution of conjugal rights.

It will be noticed that though their Lordship have stated that the agreement in that case being one for future separation 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 a

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 Edn. 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 spouse without reasonable excuse"".

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.

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 or 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.

Appeal dismissed.