Rambhabai Bhavan vs Kanji Ravji

Chhatpar, J.—This second appeal arises out of a suit filed by the Appellant for specific performance of an ante-nuptial agreement containing a provision that if the Defendant was guilty of cruelty or did not maintain the Plaintiff, the Plaintiff would be entitled to a divorce. Both the lower Courts have held that the Defendant was guilty of cruelty and the Plaintiff was obliged to leave the house of the Defendant and seek shelter in the house of one Parshotam. The trial Court granted a decree for divorce on the basis of the agreement, but the lower appellate Court reversed the decision holding that such an agreement providing for future divorce was against public policy and against the spirit of the Hindu Law of marriage and therefore void and unenforceable. The suit of the Plaintiff was consequently dismissed. The Plaintiff has now come to second appeal before me.

Now it is admitted by the learned Advocates for the parties that there is a custom in. the community to which the parties belong, whereby divorce is allowed provided both the husband and the wife consent to such divorce; even in the case of cruelty such consent is necessary. In the present case the Plaintiff has relied upon the agreement as amounting to such consent given in advance. The question before me therefore is whether in a community where divorce is permitted by consent, an ante-nuptial agreement whereby a husband agrees to grant divorce to his wife on the happening of certain events is valid and not opposed to public policy or the spirit of the Hindu Law of marriage.

Now a custom permitting divorce by mutual consent in certain communities amongst the Hindus has been recognised to be valid and not contrary to the Hindu Law of marriage nor opposed to public policy. In this connection, I may refer to the case of-Jina Magan v. Bai Jethi 43 Bom LR 651, where Divatia J. after reviewing prior cases in a well considered judgment held the custom of granting divorce not to be contrary to the Hindu Law if the party against whom the divorce was sought had given his or her consent. But an ante-nuptial agreement binding one party to grant divorce or separation stands on a different footing. Such agreements are opposed to public policy and the spirit of the Hindu Law of marriage, which recognises marriage as a sacrament involving duties of joint residence and cohabitation. The distinction between a pre-nuptial agreement for separate living or divorce and an agreement after marriage whereby the parties agree for separation or divorce, where such divorce is allowed, has been pointed out by Ghose J., in the case of-Tekait Mon Mohini Jemadia v. Basanta Kumar Singh 28 Cal 751 at p. 765, where it is observed as under:

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 Bombay High Court in the case of-Bai Fatma v. Ali Mahomed 37 Bom 280 held an agreement for future separation between husband and wife, who were Mohamedans, to be void as being against public policy, relying upon a prior judgment of Batchelor J. in the case of-Meherally Mooraj v. Sakerkhanubai 7 Bom LR 602. These two cases were of Muslims, whose marriage is a matter of contract and divorce is permitted under certain circumstances. The reason underlying this policy is based upon the "thoroughly fixed and intelligible principle having its foundations in the welfare of society and the permanence of the marriage tie", as observed by Batchelor J. in the case cited above, I may also refer to an older case of-Seetaram v. Mt. Aheeree Heeranee 20 Suth WR 49, where Couch J. observed:

We think it contrary to the policy of the law to allow persons, by a contract between their selves, to avoid a marriage on the happening of any event they may think fit to fix upon xxx An agreement of this kind is contrary to the policy of the law and persons subject to it cannot be allowed to alter the law in that way.

In the present case, the agreement whereby the Defendant had agreed to give divorce without any further writing as it is provided therein, if he cruelly treated the Plaintiff or did not maintain her, does not stand on a better footing than the agreements which have been held to be void in the above mentioned cases; even though a custom of divorce by consent exists, the policy of the law is that the parties should not contemplate separation or divorce before or at the time of entering into marriage; and this is more so in the case of Hindus whose marriages are not based upon contract but upon ties bound by religious sacraments. Under the circumstances, I have no hesitation in agreeing with the District Judge of the lower appellate Court that the agreement between the parties was unenforceable, being opposed to public policy. I, therefore, dismiss this appeal, but make no order as to costs.