Agreement in Restraint of Marriage

1) Introduction:

The right to marriage which comes under Article 21 of the Indian constitution which also guarantees the right to life and personal liberty to all the people.

As per section 26 of the Indian Contract Act, 1872, every agreement in restraint of the marriage of any person, other than a minor is invalid. An agreement which restricts a person’s freedom to marry or to marry any person of his or her choice is against public policy and is void.

An agreement that inferred barrier on marriage either wholly or partially i.e., terms of which directs not to marry with certain persons of specified class or community or to remain unmarried till pre decided time is void. Though these agreements taken as to be valid because it fulfils all the necessary conditions of a valid contract, it is declared as a void and considered it as the injury to the well-being of the people.

2) Which agreements are void?

1. An agreement between Sakshi and Raj, where Sakshi agrees with Raj that she will not marry Ram if she will get Rs. 50,00,000/-

2. Rama’s father agrees to Shyam that he will induce his daughter to marry him by banning her from marrying any other person only if Shyam pays Rs. 10,00,000/- in exchange.

3. Mr. Alif dies in a war, two co-widows, Saboor and Sameen, agrees that if one of them remarries again then that person will surrender her right to claim her share in the property of her deceased husband Mr. Alif.

3) Features of Section 26 of Indian Contract Act:

1. The basic concept of this provision is to support the right given by Indian Constitution under Article 21 i.e., to prohibit every possible action that may take away the liberty of either party to marry a person of his or her choice.

2. The agreement in restraint of marriage is void if it is contrary to the public policy and public interest.

3. An agreement which provides to hold incomplete or complete restraint of marriage is void unlike section 28 of the Indian Contract Act, 1872  which rejects agreements only in complete restraint of legal proceedings as void. Other than, relevant to note that the English common law allows the agreement in incomplete restraint of marriage.

4. All the agreement in the restraint of marriage is void but agreements that force marriage limitations on a minor could be superior to the valid status.

4) Case Laws:

1. Lowe v. Peers:[1]

In this case, the promise by a man in favour of Mrs. Catherine Lowe that he would not marry any person other than Mrs. Lowe, and also promises to pay Mrs. Lowe a sum of £ 2,000 if he married somebody else which was void and held to be against public policy. This agreement was not in the form of a promise to marry a particular lady but restrictive agreement containing a promise not to marry anybody else. Whether the agreement puts a total restraint on the right to marry, or only a partial restraint imposing a restriction on marrying for a certain period or marrying a certain person, the agreement is void. An agreement containing a condition in a wakf that a widow would lose her right of maintenance on re-marriage is not an agreement in restraint of marriage. Similarly, agreement between two co-widows would lose her right to the deceased husband’s estate on re-marriage is not restraint on the right of re-marriage.

2. Air India and others v. Nergesh Meerza and Others:[2]

In this case, the court confirms the restriction on marriage imposed by the service regulations of the Air India and Indian Airlines. The regulations are as follows which hold on air hostesses retire if she

-Attains or completes the age of 35 years or

-Enters into marital relationship within 4 years of the service or

-Is first time pregnant.

 On the grounds of Article 14 of the Constitution the Apex court pull up the rule against the first pregnancy but to support the partial restriction on marriage by acquit it to be the practical need of the service. But allegedly many justify the judgement as the regulations in question have never limited an employee from getting married hence it gives such freedom to leaving the job.

3. Rao Rani v. Gulab Rani:[3]

In this case, the court held that the agreement which restraint one of the widows of the same man from inheriting his properties after such widow’s remarriage as valid. It was discovered that as the agreement has not involved direct restriction on marriages, it will never come under the scope of section 26 of Indian Contract Act, 1872. In the former case, it was expressed that if a widow elected to re-marry then she would be underprivileged of her rights given to her under the compromise. No direct prohibition to re-marry was force by the compromise and the compromise was arrived at in order to preserve the family properties.

4. The Minister for Education v. Oxwell and Moreschini:[4]

In this case, the plaintiff agreed to give the defendant with the 2-year course of teacher training but on the condition that she should not end the course after starting for reasons other than death, disease, or accident. If she ends the course after starting except death, disease, or accident reasons then she has to repay the money to the plaintiff  that she had received earlier from the plaintiff. It is significant that one of the terms have reference to the contract directed by that institution states that the course will end with her marriage. Suddenly, she got pregnant during the course of training and wanted to marry the father of that child immediately. That institution’s principal inform her of the terms and call on the defendant to resign as she has decided to get married. Therefore, the plaintiff sued her for the repayment and claimed for the enforcement of the agreement. But it was held void because it is being a restraint of marriage which is against the public policy.

5. Abbas Khan v. Nur Khan:[5]

In this case, a Muslim woman had married a man without the consent of her nearest male relative. It was resisted by the relatives that being part of the Pathan community of Ilaqa Makhad, the groom who married the woman without the consent of her nearest male relative must pay to the man an amount which is called ‘rogha’ under the customary Muhammadan law.

The lower courts had found out that such practice existed and had allowed the plaintiff to claim payment from the groom. But during the second appeal the division bench at the High Court held that such payment of money for marriage to an adult woman was unenforceable by law and also immoral and against to the public policy.

In this case, the court stated that, the customary practices which impose a partial restraint on marriage then it is void because it counters the plan of section 26 of Indian Contract Act, 1872.

5) Conclusion:

Some agreements are invalid in a court of law because they are against public policy and not with the public interest. Such agreements are not unlawful, they can still be made, but they are not valid in a court of law. That is, in case any of the party in the agreement fails to perform his duties in such an agreement, the offended party cannot take the matter to a relevant court to have his rights. Agreements in restraint of marriage is one of the examples of such agreements.

6) References:











Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.


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