A E THIRUMAL NAIDU Vs. RAJAMMAL

JUDGEMENT

(1.) 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.

(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. 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:

(3.) 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 (1911) ILR 34 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-