Couch, C.J (who, after stating the facts and reading the ikrar, continued):— A question was raised whether this agreement was executed before or after the marriage. It was contended that it was after the marriage, and therefore that there was no consideration for it The Subordinate Judge, against whose decision the present appeal has been brought, says, that it is evident from the contract itself, and proved by the evidence of plaintiff's witnesses, that the marriage was not the consideration for it. But supposing it was made after the marriage (although the evidence seems to show that the execution of this instrument and the formal marriage was parts of one transaction, and therefore that the marriage cannot be considered as the consideration for it, it is admitted that it was registered; and then it comes within the provision of the contract Act, which makes it unnecessary that there should be a consideration. S. 25 of that Act says that an agreement made without consideration is void, unless it is expressed in writing and registered under the law for the time being in force and is made on account of natural love and affection between parties standing in a near relation to each other. This agreement comes within that provision, and when the Judge says that, according to the principles of law, post-nuptial contracts are a mere nullity at law, he seems not to be altogether correct.
The question then is whether this is a contract which can be enforced. S. 24 of the Contract Act says that “if any part of a single consideration for one or more objects, or any one or any pact of any one of several considerations for a single object, is unlawful, the agreement is void.” That does not apply here. There was nothing unlawful in the consideration for this agreement, whether it was the marriage or the natural love and affection between these parties arising from the relation which had been created by the marriage, supposing the agreement to have been made afterwards.
If any section of the Act is applicable to this case, it is the 57th, which says that, “where persons reciprocally promise, first to do certain things which are legal, and secondly, under specified circumstances, to do certain other things which are illegal, the first set of promises is a contracts but the second is a void agreement.” It may be that some part of this agreement is void as being illegal, because it is contrary, to public policy that the defendant should enter into such stipulations as I have read, namely that he would do nothing without the permission of the plaintiff, and that if he did so, she should be at liberty to divorce him and realize from him the amount of dinmohur forthwith. It may also be said that, it is contrary to publicy poli??? that the defendant should engage to pay over to the plaintiff the whole of the money which he might earn during the time the marriage continued.
Page: A-8
But I think the fair construction of this agreement is, not as the plaintiff says, that ho in to pay to her every rupee that he earns, but that he is entitled to a reasonable deduction for expenses which he must necessarily incur. And when the case comes before us, this is what the plaintiff claims and we have been told that the plaintiff is willing to take a fair sum for her maintenance and such as may be necessary for it. We think we should look at the suit as one to enforce the part of the agreement which is legal, and not to enforce anything which the Court would be obliged to hold to be void. Therefore, treating the suit as one brought only to enforce the legal part of the agreement, and not that part which is clearly void, I think the plaintiff is entitled to recover a fair sum for her maintenance. Whilst the case was being argued, we thought that the offer which was made to take at the rate of Rs. 10 a month was a fair one, and that the defendant should be made liable to pay that. Therefore the decree of the Subordinate Judge will be reversed, and the plaintiff will be declared to be entitled to a sum of money calculated at the rate of Rs. 10 a month from the time when the agreement was executed until the time of the institution of the suit giving credit for the Rs. 54 which the plaintiff admits that she has received. And the plaintiff will have the costs of the suit including the costs in this Court in proportion to the sum which she is declared to be entitled to.