Judgment : Being aggrieved by the judgment and order dated 20.3.2007 passed by District Judge-I, Akola, in Regular Civil Appeal No. 18 of 1994 reversing the judgment and decree dated 03.1.1994 passed by Civil Judge, Jr.Dn., Akola, in Regular Civil Suit No. 396 of 1972 and dismissing the suit filed by the appellant/plaintiff, the present second appeal was filed by the original plaintiff. 2. FACTS : Original plaintiff Shantabai was the wife of defendant Jagdeo. She could not bear any child and her husband constantly tortured her for divorce for marrying another woman. There being no alternative, she agreed for divorce by consent, but she demanded amount of Rs.1500/-from her husband with a view to purchase agricultural land for her maintenance in her remaining life. Defendant accepted the condition and paid cash of Rs.1500/- in lump sum on 2.5.1968 and on the same day a consent Deed of Divorce was executed. At that time, her husband-defendant suggested to her to purchase his three acres of land from survey No. 160/3 for a consideration of Rs.1500/- and accordingly he executed the sale-deed in her favour. Thereafter defendant promised her that he would cultivate her land and as such she continued to reside with him despite separation. Thereafter the husband started ill-treating the plaintiff. In all, she lived for three years and then left his house to reside with her brother. Defendant then changed his colour and sent a notice to her that the sale-deed was nominal and bogus and would not give possession thereof to her. She, therefore, filed the suit for possession. In the written statement defendant/husband, inter-alia, took a plea that the transaction of sale-deed dated 2.5.1968 was hit by Section 23 of Indian Contract Act because the sale-deed was executed for over-reaching the provisions of Bigamy law, i.e. to enable the defendant to marry for second time by giving divorce to plaintiff Shantabai. Upon conclusion of the trial, the trial Court decreed the suit repelling all sorts of contentions raised by the defendant/husband. The husband carried appeal to District Judge who allowed the appeal holding that the transaction of sale-deed in favour of plaintiff was with a view to defeat the provisions of Bigamy law and, therefore, the court would not entertain the suit. Hence, this appeal. 3. The husband carried appeal to District Judge who allowed the appeal holding that the transaction of sale-deed in favour of plaintiff was with a view to defeat the provisions of Bigamy law and, therefore, the court would not entertain the suit. Hence, this appeal. 3. SUBMISSIONS : In support of appeal, Mr.Deo, learned counsel for the appellant, argued that the appellate court committed an error of law in understanding the basic concept of public policy, as contemplated by Section 23 of the Indian Contract Act and thus landed in error. He then argued that the plea about Section 23 of the Indian Contract Act could not have been accepted by the first appellate court at the instance of unscrupulous husband who himself had been torturing plaintiff Shantabai since she was not bearing any child and that is why he wanted to marry for second time. Plaintiff lost her youth with him and reluctantly and due to ill-treatment became ready for divorce, that too upon accepting Rs.1500/- for purchasing agricultural land. According to Mr.Deo, the husband/defendant then laid a trap and promised the plaintiff to cultivate the land himself and also to keep her in his house. Thereafter he again started illtreating her and finally after three years she had to go to her brother. According to the learned counsel, the first appellate court should not have termed the transaction of sale-deed as forbidden by the law of Bigamy. It has not been brought in the evidence of any of the parties that they were conscious of law of Bigamy when the consent deed of divorce and sale-deed were executed. Plaintiff-Shantabai died during the pendency of litigation having lost her land to her husband. He, therefore, submitted that substantial questions of law arise in this appeal and this Court should interfere with the judgment and decree passed by the first appellate court. 4. Per contra, Mr.Khapre, learned counsel for the respondent/husband vehemently opposed the appeal and argued that the fact that the transaction of consent divorce and sale-deed took place on the same day, namely 2.5.1968, was indicative of the fact that the wife wanted to allow the husband to be out of the net of Bigamy law. 4. Per contra, Mr.Khapre, learned counsel for the respondent/husband vehemently opposed the appeal and argued that the fact that the transaction of consent divorce and sale-deed took place on the same day, namely 2.5.1968, was indicative of the fact that the wife wanted to allow the husband to be out of the net of Bigamy law. Her conduct in obtaining the sale-deed from her husband was with a view to over come the provisions of Bigamy law which is prohibited by Section 23 of Indian Contract Act and the first appellate court has rightly applied the law to deny any relief to the appellant-plaintiff. According to him, the sale-deed was initially executed without any consideration and thereafter Rs.1500/- was paid, which is clear from para 14 of the judgment recorded by the first appellate court. He then argued that the said finding is a finding of fact and should not be interfered in the jurisdiction under Section 100 of Code of Civil Procedure. The counsel then argued that the only inference that can be drawn in respect of transaction was that the plaintiff became ready to obtain divorce only after payment of Rs.1500/- to her. The only consideration for taking Rs.1500/-by wife was for giving divorce and that is opposed to public policy apart from being immoral. 5. Upon hearing learned counsel for rival parties, I find that the following substantial questions of law arise for consideration in this appeal- (1) Whether the first appellate court committed an error of law in not correctly applying the provisions of Section 23 of the Indian Contract Act and recording a finding that the transaction of sale-deed (Ex.47) was with a view to defeat the provisions of Bigamy law and same was immoral and opposed to public policy? (2) Whether the first appellate court committed an error of law in enforcing the doctrine underlying Section 23 of the Indian Contract Act at the instance of the respondent/husband, who himself was guilty of bringing out the consent divorce-deed at Ex.48 and the sale-deed Ex.47 in favour of the appellant/wife? 6. (2) Whether the first appellate court committed an error of law in enforcing the doctrine underlying Section 23 of the Indian Contract Act at the instance of the respondent/husband, who himself was guilty of bringing out the consent divorce-deed at Ex.48 and the sale-deed Ex.47 in favour of the appellant/wife? 6. CONSIDERATION : At the outset, this Court expresses its dismay over the manner in which the first appellate court has lightly reversed the decree of the trial Court and thereby caused severe injustice to a woman from a remote village who under compulsion became ready for consent divorce with her husband at his instance in return for the suit land for her maintenance only because she was not bearing a child. There is a concurrent finding of fact recorded by both the courts below on the following facts - Plaintiff-Shantabai was not bearing any child after her marriage and the respondent/husband was constantly pressurising and torturing her for that reason and was also pressing her to give him divorce. She was at no fault in not bearing the child. She was compelled to be ready to give consent divorce, but she demanded an amount of Rs.1500/-in cash for her maintenance and the respondent/husband readily agreed. Thereafter the defendant/husband himself suggested that since the plaintiff wanted to purchase the land from the said amount he was ready to sell his three acres of land to her with sale consideration of Rs.1500/-and accordingly on the same day,namely 2.5.1968 consent deed of divorce (Ex.48) and sale-deed (Ex.47) were executed. The sale-deed shows recital about receipt of Rs.1500/- by respondent/husband from the plaintiff/wife in view of sale of land in her favour. Even after the execution of sale-deed in her favour the respondent/plaintiff continued to reside with him in his house because he stated that he himself would cultivate the said three acres of land for her benefit. Plaintiff believed in him and resided with him. He married with another woman Gumphabai three months after, but still Shantabai resided there and also used to work on her field along with the respondent/husband. Thereafter the respondent/defendant again started ill-treating her and she had no other alternative except to go to her brother's house. 7. Plaintiff believed in him and resided with him. He married with another woman Gumphabai three months after, but still Shantabai resided there and also used to work on her field along with the respondent/husband. Thereafter the respondent/defendant again started ill-treating her and she had no other alternative except to go to her brother's house. 7. These findings have been utilized by the first appellate court to hold that the transaction of sale-deed was immoral and opposed to public policy and was brought out with a view to overcome Bigamy law. The appellate court found that both the documents (Exs. 47 & 48) were executed on the same day, i.e. 2.5.1968, and therefore he inferred that there was no receipt of consideration by the respondent/husband. He ignored to see that the document sale-deed (Ex.47) itself clearly recites receipt of Rs.1500/- as total consideration for conveying the suit land to her. Even if she had paid him the same amount of Rs.1500/- which was paid by respondent as per her demand for her maintenance, as total consideration for execution of sale-deed (Ex.47), there was no reason for the first appellate court to hold the sale-deed (Ex.47) was without consideration. The fact that she resided with her husband for another three years has been interpreted by the first appellate court to mean that she had an intention to escape from the legal provision prohibiting bigamy. It also held that it was for that purpose the documents were executed. The reason is absurd and puts salt on her injury. The first appellate court clearly ignored the evidence that he promised to cultivate the field for her and the poor woman who still had love left for him, agreed to live with him. At that time, had not married another woman. He then married Gumphabai after about three months. Then she was ill-treated and unable to tolerate the ill-treatment she left the house after three years. In this contextual facts, respondent was a particepscriminis who could not be supported. Not only that she was never a willing party for divorce. At that time, had not married another woman. He then married Gumphabai after about three months. Then she was ill-treated and unable to tolerate the ill-treatment she left the house after three years. In this contextual facts, respondent was a particepscriminis who could not be supported. Not only that she was never a willing party for divorce. It is well settled that no man can take advantage of his own wrong, i.e. “Nulluscommodum capere potest de injuria suo propria.” That apart, if a separation is to take place contemporaneously with the agreement, as in the case at hand, such a contract can well be sustained as fair and would not attract the vice of Section 23 of the Act. Thus, the finding recorded by the first appellate court is nothing but a figment of imagination. There is no material on record whatsoever that the respondent/husband had in fact contracted to marry any particular woman on the date of execution of documents Exs.47 and 48 and in lieu of that agreed to divorce. I, therefore, hold that the finding recorded by the first appellate court that the documents Exs.47 and 48 were executed with a view to over reach the provisions of Bigamy law is wholly illegal. The finding that the transaction was for immoral purpose or opposed to public policy is equally illegal. There is whatsoever no basis for the appellate court to draw such a conclusion. 8. This Court in AIR 1977 Bom. 228 – Kamarbai & ors. v. Badrinarayan & anr., and in particular in para 118, in similar situation stated thus : “Let the property lie where your sexual dalliance and immoral pleasures placed it. The Court will not assist you now to deprive further a fallen woman after you, perhaps with others like you, have robbed her of her youth, charms, all social virtues, her life, her light and her love.” 9. Similarly, the Division Bench of this Court in AIR 1937 Bom. 358 – Purshottamdas Harjivandas Patel v. Rukmini & ors. Observed thus : “But where a post-nuptial agreement of separation between husband and wife provides for maintenance of the wife out of a definite and fixed fund and contains an express stipulation against claim for further maintenance out of any other property of the husband, it is difficult for a Court to set aside that agreement. Observed thus : “But where a post-nuptial agreement of separation between husband and wife provides for maintenance of the wife out of a definite and fixed fund and contains an express stipulation against claim for further maintenance out of any other property of the husband, it is difficult for a Court to set aside that agreement. The agreement is a bar against wife's claim for increased amount. The agreement is neither opposed to public policy nor to the spirit of Hindu law. Such an agreement is entirely different from an ante-nuptial agreement to live separately after marriage. The latter cannot be defended under the rules of Hindu law or morality. Normally, therefore the Court would give effect to an agreement providing for separation and maintenance unless it were proved to have been obtained by any of the circumstances invalidating a contract such as fraud, undue influence or mistake.” In view of the above, I answer question no.1 in affirmative. 10. Now coming to the second question, in the light of the above discussion and in the facts of the case, the evidence on record and the concurrent findings of facts recorded above, it is clear that it was the respondent/husband who initiated the entire process of obtaining divorce-deed by consent (Ex.48)and sale-deed (Ex.47) in her favour. The sale-deed was executed for providing her a permanent means of maintenance so that she could continue to survive by cultivating the said piece of three acres of land and maintain herself. One fails to understand what is immoral in this. Such a husband who inflicted all sorts of ill-treatment and torture to his wife because she was not bearing a child and who himself had brought about the situation, in my opinion, was clearly estopped in law from raising such a plea about immoral transaction and opposed to public policy or the transaction for over reaching the Bigamy law within the meaning of Section 23 of the Indian Contract Act. Hence, I answer question no.2 in the affirmative. 11. During the course of hearing, Mr.Khapre, learned counsel for the respondent, informed this Court that the suit land has been sold away by the respondent/husband and, therefore, this Court should not pass any decree. The submission made is liable to be rejected since the sale-deed was executed by the respondent/husband despite existence of order of injunction dated 22.2.2008 that was made by this Court. The submission made is liable to be rejected since the sale-deed was executed by the respondent/husband despite existence of order of injunction dated 22.2.2008 that was made by this Court. There is another application, namely C.A. No.397 of 2010, for taking action against the respondent/ husband for breach of injunction. In view of the above, the submission made by Mr.Khapre has to be rejected. The sale-deed executed by the respondent/ husband in breach of injunction order cannot bind the appellant. 12. In the light of the above discussion, I make the following order. ORDER (i) S.A. No. 483 of 2007 is allowed with costs. (ii) Judgment and Decree dated 20.3.2007 in Regular Civil Appeal No. 18 of 1994 passed by District Judge-1, Akola, is set aside and the judgment and Decree dated 03.1.1994 passed by Civil Judge, Jr.Dn., Akola in Regular Civil Suit No. 396 of 1972 is restored. (iii) Decree be drawn up accordingly.