An agreement for future separation between spouses is invalid and cannot be used to counter a claim for restitution of conjugal rights.

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 the courts below and the second appeal is against the judgement the appellate court.

2. Under the English law it is well established that a pre - nuptial agreement 10 live separate 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 :
"Separation agreements between husband and wife were at one time regarded on contrary to public policy and invalid, especially in the ecclesiastical courts, where they were not regarded as constituting bars to matrimonial relief. But in the courts of common Law and Chancery they were frequently recognised, even by Lord Eldon, who of ten fulminated against them, and their validity was placed beyond challenge by the decision of the House of Lords in Wilson v. Wilson , 1848-1 - HLC 538 that specific performance of such an agreement might be decreed. The result is that agreements providing for the immediate separation of the spouses are not per se invalid, though they may be so on other grounds ...... But an agreement for future separation is entirely void whether made before or after marriage."
In Reyden on Divorce, 8th Edn. at page 215, in paragraph 197, it is stated as follows : -
"An agreement to live separate and apart, if alleged and proved, empowers the court to refuse a decree for restitution of conjugal rights, where to pronounce a decree would be to treat one of the spouses as deserting the other without reasonable cause, contrary to the truth of the case. And a deed of separation containing a covenant by the wife not to sue for restitution, is a bar to her suit if the deed is pleaded and set up by the husband. . . . . "
These may not provide a proper precedent in the conditions of this country, particularly in the background of the Hindu society.
The only two cases in which this matter has been dealt with refer to pre - nuptial agreements and they held that such agreements are not valid. They are the decisions in Takait Mon Mohini Jamalai v. Basanta Kumar Singh , (1901) ILR 28 Cal 751 and Krishna Aiyar v. Balammal , (1911) ILR 34 Mad 398 But they contain valuable discussions on the principles that apply to such matters. The case in (1901) ILR 28 Cal 751 deals exhaustively with the Hindu law on the subject, and though the case relates to a pre - nuptial agreement, the discussions therein on the principles of Hindu law and the law of contracts make it clear that an agreement like the present one would not be upheld by the courts. At p. 757 the following passage appears :
''This brings us to the consideration of the question what is the Hindu law upon this subject. It may be premised that though marriage under the Hindu Law is a contract, it is also a sacrament, it is more religious than secular in character ......"
Then follows at p. 760 a citation from the book of Mr. Justice Banerjee on the Hindu law of Marriage and Stridhana :
"it follows from the very nature of the matrimonial relation that the husband and wife must each be entitled to the society of the other. It is one of the express conditions. In the nuptial vow of the Hindus, that each par