The Indian Contract Act, 1872 provides that certain agreements are void. These types of agreements include agreement that breaches the law or public policy or takes away the right of someone. A kind of this agreement is
“agreement in restraint of marriage”. Agreement in restraint of marriage is void.
According to section 26 of the Indian Contract Act, 1872, an agreement in restraint of the marriage is void other than the marriage of a minor. Because it restricts the right to marriage of a person or right to marry with their choice, that is against the public policy. The restriction may be wholly or partially may be restricted to marrying a person or for a certain period of time.
In Lowe v. Peers, the defendant promise not to marry another woman, if he does so, will pay £2,000 to the plaintiff. This is against public policy hence, it is a void agreement.\
In Hartly v. Rice, the court held that the arrangement where one of the parties agreed not to get married until a certain time was declared void since it was probably equal to making the oath of restriction under pressure.
In Venkata Kristnayya v. Lakshmi Narayana, a contract made with the consideration to pay the father for giving his daughter is immoral and opposed the public policy. Therefore, it is void.
The Allahabad High Court in Abbas Khan v. Nur Khan declared that even though customary practices partially restrict marriage, they are invalid because they violate Section 26 of the Indian Contract Act. Since then, the judiciary has upheld this case’s reasoning and determined that an agreement in India that forbids marriage wholly or in part is invalid. On the contrary, the Law Commission’s 13th report stipulated that partial restraint in marriage may be declared lawful, but only at the court’s discretion, that is, if the court determines its reasonableness after reviewing the case’s factual matrix.
The widow would lose the right to maintenance if remarried; the agreement is upheld in Latafatunnissa v. Shaharbanu Begum.
An agreement between the two co-widows, if either of them remarries would lose the right to the property of the deceased husband, is not restrained in marriage. It was recognized in Rao Rani v. Gulab Rani and A. Suryanarayana Murthi v. P. Krishna Murthi.
The contract made before marriage that if the husband married another woman, the first wife would get a divorce, the agreement is valid. It was observed in Moharrum Ali v. Aysha Khatun and Badu v. Badarnessa.
In Jamila Khatoon v. Abdul Rashid, the court has recognized that a contract made before marriage that calls for the husband to pay the wife’s customary maintenance allowance in the event of strained relations between the husband and wife is not void under any statutory provisions.
In Air India and Others v. Nergesh Meerza and Others, the Supreme Court held that the restriction on marriage that inflicts the services is valid.
Section 26 of the Indian Contract Act, 1872 says that an agreement in restraint of marriage is void unless the marriage of a minor. However, there are some exceptions in which agreement in restraint of marriage is validly recognized by the courts. These agreements may restrict the widow from remarriage, the first wife can claim for divorce if the husband marries another woman or restrain in marriage for service, etc.
Indian Contract Act, 1872
Law of Contract and Specific Relief by Avtar Singh; Ninth Edition
Law of Contract Part I by R.K.Bangia; Edition 2006
Lowe v. Peers, 1768 4 Burr. 2225
Hartly v. Rice, 1808 10 East 22
Venkata Kristnayya v. Lakshmi Narayana, 32 Mad. 185. 1
Abbas Khan v. Nur Khan, AIR 1920 Lah 357: 1920 1 Lah 574: 58 IC 167 144
Latafatunnissa v. Shaharbanu Begum, AIR 1932 Oudh 108
Rao Rani v. Gulab Rani, AIR 1942 All 351; ILR 1942 All 810
A. Suryanarayana Murthi v. P. Krishna Murthi, AIR 1957 Ori 125
Moharrum Ali v. Aysha Khatun, 1915 19 CWN 1226
Badu v. Badarnessa, 1919 29 CLJ 230
Jamila Khatoon v. Abdul Rashid, AIR 1939 Lahore 165
Air India and Others v. Nergesh Meerza and Others, AIR 1981 SC 1829
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