- (1.) THIS is defendant's second appeal directed against the judgment and decree dated the 22nd December, 1950 passed by the Civil Judge, Bharatpur, in a suit for maintenance.
(2.) IT is common ground that on account of the union between appllant Sukha and respondent Mst. Ninni a female child named Jamila was born some time in 1954. Mst. Ninni made an application under sec. 488 Cr. P. C. against Sukha for the maintenance of Jamila. The Sub-Divisional Magistrate, Bayana by his order dated the 15th June, 1955 ordered Sukha to pay a sum of Rs 10/- per month with effect from the 11th May, 1954 up to the end of June, 1955 and further directed that he should in future pay on the first of every month the said sum of Rs. 10/- and remit the same by money order to Mst. Ninni. Against this order Sukha preferred an application for revision before the Sessions Judge, Bharatpur but later withdrew the application. The plaintiff's case is that before Sukha withdrew his revision application pending in the Court of the Sessions Judge, Bharatpur on 17. 9. 1955 an agreement was reached between Mst. Ninni and Sukha that the latter shall pay a sum of Rs. 8/-per month instead of Rs. 10/- for the maintenance of the illegitimate child Jamila until such time she was married. Sukha did not pay the amount he had agreed upon to pay as per agreement (Ex. 1) for the maintenance of the child Jamila. Thereupon Mst. Ninni instituted a suit in 1958 for the recovery of the maintenance allowance in accordance with the agreement (Ex. 1) against Sukha. He resisted the suit by denying the execution of the agreement. Both the courts found against him and held that the agreement was duly executed by Sukha and it was pursuant to the agreement (Ex. 1) that Sukha had not pressed his application for revision before the Sessions Judge, Bharatpur. They held that Sukha was liable to maintain this illegitimate child and pay Rs. 8/- per month to Mst. Ninni. Dissatisfied by the judgment of the Civil Judge, Bharatpur, Sukha has come up in second appeal. The learned counsel for the appellant has contended that under the Muslim Law a Mohammedan is not bound to maintain his illegitimate child and, therefore, the courts below were in error in awarding the decree against him. His next contention is that even if this contention is not accepted then the agreement is void because its consideration has the effect of defeating the Muslim Law and, therefore, it is unenforceable having regard to the provisions of sec. 23 of the Contract Act. He has placed reliance on Roshanbai Vs. Suleman Haji Ahmed Umar (l) where Kania, J. , (as he then was) expressed the opinion that according to Mahommedan law a man is not obliged to maintain his mistress or illegitimate children in the sense that in a civil court an obligation cannot be established. The learned counsel for the respondent argues that even if it is assumed that under the Muslim Law the male who was the author of an illegitimate child is not liable to maintain such an offspring, the case of the respondent has been and is on the footing of an agreement wherein the appellant Sukha had agreed to pay a sum of Rs. 8/- per month for the maintenance of Jamila until she was married and he is, therefore, bound to perform the obligation arising out of that agreement. He placed reliance on Khwaja Muhammad Koan Vs. Husaini Began (2) and Brojo Nath Paul Chowdhry Vs. Bimola Soonduree Dossia (3 ). According to Mohammedan Law it is no duty of a man who has begotten an illegitimate child to maintain it. This proposition of law has for its authority the Bombay case (1) relied on by the learned counsel for the appellant. The only point for determination is whether he is bound to maintain the child on account of his obligation arising from the agreement (Ex. 1 ). Two arguments have been urged in regard to the un-enforcibility of the agreement. The first is that it is without consideration. Both the courts below have held that there was a liability created by the order of the Sub-Divisional Magistrate dated the 11th May, 1954 pursuant to which Sukha had to pay a sum of Rs. 10/-per month for the maintenance of Jamila. A revision application was pending on the 17th September, 1955 when the parties entered into the agreement (Ex. 1) that the maintenance which Sukha was to pay be reduced from Rs. 10/- to Rs. 8/- per month and on the same day Sukha got his revision application dismissed. The question is whether in these circumstances where a promisor acquired a pecuniary advantage by reducing his legal liability and, therefore, agreed to do something, namely, to pay Rs. 8/- per month. Whether it amounts to consideration under the Indian Contract Act. At the desire Of the promisor the promisee in the present case abstained from recovering what had obviously become final judicial order for the maintenance of Jamila for a sum of Rs. 10/-per month under the Criminal Procedure Code and agreed to accept a sum of Rs. 8/- per month instead of Rs. 10/ -. This in my opinion constituted a valid consideration; as has been rightly held by the courts below. The second argument of the learned counsel for the appellant is that the agreement is void because the consideration is unlawful having regard to the provisions of sec. 23 of the Indian Contract Act. The emphasis of the learned counsel for the appellant is that the consideration of the agreement before me is unlawful because it is of such nature that if permitted it would defeat the provisions of the Muslim Law. There is high authority for the proposition that the terms of agreement for maintenance are to be enforced regardless of the provisions of personal law. In Khwaja Muhammad Khan's case (2) Mr. Ameer Ali delivering the judgment of the Judicial Committee observed that Kharcha-i-Pandan is a personal allowance and it could be enforced even though the wife was not living at the husband's home Yusoof Ali Chowdhry's case (3) was founded on an express contract of the defendant to pay a certain sum of money annually to the plaintiff in consideration of the relinquishment of property she obtained as her dowry for the term of the natural life of the defendant. It was held to be a simple case of contract uninfluenced by considerations of Mohammedan Law. An "agreement to maintain an illegitimate child, for which the Mohammedan Law as such makes no provision, will in my opinion not have the effect of defeating the provisions of any law. As a matter of fact, maintenance of illegitimate children has been statutorily recognised under sec. 488 of the Code of Criminal procedure in our country and it is in consonance with this wholesome public policy that the offsprings born under such circumstances are to be provided for and should not be left to the misfortunes of vagrancy and its attendant social consequences. I am therefore not prepared to hold that the consideration for the agreement if permitted would defeat the provisions of any law. 8. No other point has been pressed before me. This appeal, therefore, fails and is dismissed with costs. .;