A promise to pay for past adulterous intercourse is void as it is opposed to public policy and morality.

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 past cohabitation between the parties. The learned Additional Subordinate fudge 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 intercourse, 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. There would appear to be no difference in judicial opinion upon such an agreement, which is, 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, (1881) ILR 3 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 Animal. (1903) 13 Mad LJ 7, judgement 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 appeal to be valid under the Indian Contract Act. In Namberumal Chetti v. Veeraperumal Pillai, 59 Mad LJ 596 : (AIR 1930 Mad 956), Ramesam, J., observed that past cohabitation could be good consideration, approving (1903) 13 Mad LJ 7. In Kothandapani Mudaliar v. Dhanarmnal. 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, AIR 1938 Pat 502, 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. A