( 1 ) A woman was sold, mercifully not in an open market. Because the sale failed, the buyer has sued for refund of the consideration. Was sale not traffic in human beings, prohibited by Article 23 of the Constitution ? May be, the sale has not attracted, in terms, the Suppression of Immoral Traffic in Women and Girls Act, 1956, for short, the Immoral Traffic Act. But, the moot question is, whether the plaintiff is entitled to the relief claimed, invoking Section 65 of the Contract Act, for short, the 'act'.

( 2 ) BOTH the Courts below having decreed plaintiff's suit, defendant has appealed to this Court. The facts of the case lie within a narrow compass. The question, therefore, would also be whether such custom does at all survive after the Constitution case into force. Plaintiff's case was that she was Dangi by caste and had a son named Laxman who could not be married at an early age according to custom prevalent among people of Dangi caste. Because her son, who was aged 24 years, had lost all hopes of marriage, she contracted with the defendant to arrange a Dangi woman for her son who could be kept by him as his mistress. The defendant was paid Rs. 4,000/- for a woman whom he sent to plaintiff's house representing that she was a Dangi woman. For hardly 20 days, the woman had lived with her son when she got a message from the defendant that a warrant had been issued against the woman from the Court and she should, therefore, be sent back to the village. Thus, she went back, not to return ever thereafter. Later when it was discovered that the woman was a Bedhni (dancing girl), plaintiff asked the defendant to refund the amount, when he refused to do. Defendant denied all allegations and also pleaded that the contract was void and was unenforceable; and that the suit was not maintainable.

( 3 ) TWO Courts below concurrently held that the defendant had obtained Rs. 4,000/- from the plaintiff fraudulently on the condition of supplying a Dangi woman for her son. But invoking Section 65 of the Act, the Court of appeal below affirmed trial Court's decree, albeit relying on the decisions reported in P. R. Srinivasa Aiyar, AIR 1918 Mad 444, Alsidas Pannalal, AIR 1944 Nag 159 and Bhan Singh, AIR 1933 Lah 849 (2) to which I shall advert in due course.

( 4 ) IN this Court, learned counsel for the plaintiff/respondent has tried to support the decrees passed by the two Courts below on the basis of decisions above-referred of High Courts of Madras. Nagpur and Lahore and has cited two more decisions. Before I proceed to look at those decisions, I would extract below Section 65 of the Contract Act, because judicial opinion on the interpretation of the provision is equivocal and not unanimous : "65. Obligation of person who has received advantage under void agreement, or contract that becomes void - when an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom be received it. "

( 5 ) IN P. R. Srinivasa Aiyar, (AIR 1918 Mad 444) (supra), one of the learned Judges constituting the Bench was definitely of the view that the words "discovered to be void" in Section 65 should be construed to mean "an agreement which was void ab initio, but not then known to the parties to be so, than an agreement of which the illegality must be taken to have been always known to them". The basis of the distinction is difficult to follow because the contract in that case was of "marriage-brokerage" which was held void under Section 23 of the Act. In Alsidas Pannalal, (AIR 1944 Nag 159) (supra), this decision was relied on and the Division Bench took the same view dissenting from the view taken by a Division Bench of Calcutta High Court in the case of Ledu, AIR 1916 Cal 266 even though the Calcutta case did not concern a contract for marriage-brokerage, as was the case before their Lor