B VRAMA RAO Vs. JAYAMMA

JUDGEMENT

(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 :

(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.