(1) This civil revision petition involves a question of law of considerable interest. The facts would appear to be very clearly established and to admit of little or no doubt.
(2) As is well known, S. 23 of the Indian Contract Act (9 of 1872) declares that--
'The consideration or object of an agreement is lawful, unless it is forbidden by law; or.............. the Court regards it as immoral or opposed to public policy.'
The section then proceeds to state that in each of the given categories 'the consideration or object of an agreement is said to be unlawful'. Every agreement of which the object or consideration is unlawful is void.'
(3) Very briefly stated, the revision petitioner is the defendant in a suit by a certain Muniammal, the plaintiff, to recover a sum of Rs. 810 being the principal and interest due on a promissory note executed by the defendant in favour of the plaintiff. The findings of the Courts below, as they stand at present, are that, though there was no cash consideration ex facie appears on the instrument, the consideration for the document, Ex. A-1 was part cohabitation between the parties. The learned Additional Subordinate Judge has rejected the view of the trial Court, that any part of the consideration under Ex. A-1 could possibly refer to future cohabitation. But this cohabitation admittedly amounted to adulterous inter-course, since the plaintiff was a woman married to another at all relevant periods.
(4) The broad question, therefore, is, whether illicit cohabitation could sustain a promise to pay. Obviously, there are three possible categories of this aspect of an agreement or undertaking, whether in the shape of negotiable instruments or in other form. Firstly, the promise could relate exclusively to future cohabitation. Secondly, the promise could relate exclusively to past cohabitation. Thirdly, the promise could relate to past cohabitation with a woman whose husband is alive, that is, adulterous intercourse.
(5) Learned counsel on both sides agree that with regard to a promise to pay a woman for future cohabitation, this would be an agreement which the Court is bound to regard as immoral, or opposed to public policy. They would appear to be no difference in judicial opinion upon such an agreement which a therefore, void.
(6) It is with regard to the second category that there would appear to be an interesting divergence in the precedents. In Dhiraj Kuer v. Bikramjit Singh, ILR (1881) All 787, the Bench held that past cohabitation would not be an immoral consideration, for a promise to pay a woman an allowance. But, more properly, such a promise should be regarded as an undertaking by the promisor to compensate the promisee for past services voluntarily rendered. In Lakshminarayana Reddiar v. Subhadri Ammal, : (1903)13MLJ7 , judgment of White, C. J., and Bhasyam Aiyangar and Moore, JJ., it was held that a promise to pay for the purpose of future cohabitation, which comprised the consideration, was illegal and void. But Bhashyam Aiyangar J. observed that a promise made in consideration of past cohabitation would appear to be valid under the Indian Contract Act. In Namberumal Chetti v. Veerapersumal Pillai, : AIR1930Mad956 , Ramesam J. observed that past cohabitation could be good consideration, approving : (1903)13MLJ7 . In Kothandapani Mudaliar v. Dhanammal, AIR 1943 Mad 253, Kunhiraman J. pointed out that although future illicit cohabitation could not support a promise for the reason that it was immoral consideration, yet there was nothing wrong in a promise made in recognition of a claim based upon past cohabitation.
(7) But contrary views have also been expressed. In Godfrey v. Mt. Parbati Paluni, : AIR1938Pat502 , Courtney Terrell, C.J., seems to have been aware of the difficulty, and held that a contract to compensate a mistress for what she has lost on account of past illicit association with the promisor, might not be invalid. But in Husseinali Casan v. Dinbai : AIR1924Bom135 , Macleod, C.J. and Crump J., held that a contract which was immoral at the time, and, therefore, would not support an immediate promise to pay, did not become innocent by merely being past consideration. 'There can be no difference whether A says to B: 'I will give you Rs. 1,000 a month if you live with me for a year' or 'I will give you Rs. 1,200 because you have lived with me for a year'. The consideration, therefore, for past cohabitation is unlawful as being immoral or opposed to public policy. In Kisandas v. Dhond, AIR 1920 Bom 142, it was held that past cohabitation was not good consideration for transfer of property.
(8) In Ganapathi Chetti v. Sundararaja Pillai, AIR 1930 Mad 239, Sundaram Chetti J. held, in a case where the consideration for a promissory note was past cohabitation of the executant with a dancing girl, that the claim under the note was unenforceable the consideration therefor being immoral within the meaning of Sec. 23 of the Contract Act. In Mullah on Contract Act, 8th Edn., pp. 174, 177 and 1778, the cases have been discussed at some length. In Marakkal v. Chinnana Gounden, (1958) 71 MLW 137, Ramaswami J. held that in that case, the provision was also for future cohabitation, and the promise to pay maintenance was void, as being immoral and opposed to public policy.
(9) In my view, where the consideration relates strictly to past cohabitation, which is illicit, in the sense that it is outside matrimony, but which otherwise does not constitute offence, it could be conceivably held, on the circumstances, that the promise to pay is supported by good consideration. But, even so, the difficulty is obvious that, thought his consideration is not forbidden by any law, nevertheless, it falls under the interdict that it may be 'immoral or opposed to public policy'. For I think it is indisputable that the Courts must, be every means in their power, promote matrimony, and the incurring of lawful sexual relationship alone, and Courts ought not to give sanction or approval, even in an implied form, to irregular sexual relationships outside the bond of matrimony, even where they may constitute no offence or infringement of the Penal law. hence, in such a case, I think that it could be contended, with great justice and force, that the test adumbrated by the Division Bench in ILR (1881) All 787 should be applied. If the promise can be interpreted as an undertaking to pay for past services voluntarily rendered, then presumably, the consideration would hold good. But, if it is to be fixed or determined with regard to the fact of past cohabitation alone, then, with great respect to the line of authorities to the contrary I would greatly doubt whether the Court would be justified in declining to apply the last category of Section 23 to the contract, namely, 'immoral or opposed to public policy'. It will be noted that Courtney-Terrell C.J. in AIR 1938 Pat 502 also referred to put in the form that a promise to pay in respect of past illicit connection, could presumably be justified, not in itself, but as a compensation for a mistress, where she had suffered injury owing to the past association.
(10) But, in any event, there can be no doubt whatever that where the illicit connection is adulterous intercourse and, therefore, it is opposed to law, it cannot possibly sustain a promise to pay, or constitute a valid consideration. This was pointed out By Ramaswami J. in (1958) 71 MLW 137, in the form that, since adultery was an offence in this country, cohabitation, past or future, if adulterous would be both immoral consideration and unlawful consideration. The matter was considered in detail in Alice Mary Hill v. William Clarke, ILR (1905) All 266 and the observations of Lindley L.J. in Scott v. Brown, Doering, McNab and Co., (1892) 2 QB 724, to the effect that--
'No Court ought to enforce an illegal contract, or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of the Court and if the person invoking the aid of the Court is himself implicated in the illegality' and of Lord Mansfield L.J. in Holman v. Johnson (1775) 1 Cowp 341, that the principle is not that the Court declines to enforce the contract for the sake of the defendant, but on the canon of the law that 'those who violate the law must not apply to the law for protection' have been cited with approval. The remarks are directly and strictly pertinent to the present context. The plaintiff (Muniammal) applies to enforce a contract, which is directly referable to the relationship between her and the defendant which is not merely illicit, but is criminal. It appears to be indisputable, for instance, that if A undertakes to pay a large sum to B, in case B obliges A by committing some criminal offence and A fails to pay B, B cannot approach the Court for redress, claiming that he had committed the criminal offence, and that, therefore, he should receive his due wages therefor. The hardship of the case, as far as the woman is concerned, can be no criterion, upon facts of this character even though the defendant might have been the person who tempted woman into adultery.
(11) The revision proceeding is, therefore, allowed, and the decree of the learned Subordinate Judge is set aside. But, obviously, this is not a case in which the revision petitioner is entitled to costs, and I direct the parties to bear their own costs.
(12) RSK/DVC
(13) Revision allowed.