“AGREEMENT IN RESTRAINT OF MARRIAGE”

Final Submission

Submitted by: Shrujan Sinha

(PRN NO- 18010223107)

PROGRAMME- BA LLB

DIVISON: E

Batch: 2018-23

OF

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), PUNE

IN

January, 2018

Under the guidance of

Dr. KANAN DIVETIA &

Ms. PALLAVI MISHRA

 CERTIFICATE

The Project entitled “AGREEMENT IN RESTRAINT OF MARRIAGE”

submitted to the Symbiosis Law School, NOIDA for Law Of
Contracts as part of internal assessment is based on my original
work carried out under the guidance of Prof.(Dr.) C.J Rawandale,
Dr. Kanan Divetia and Ms. Pallavi Mishra from December to
January. The research work has not been submitted elsewhere for
award of any degree.

The material borrowed from other sources and incorporated in the

thesis has been duly acknowledged.

I understand that I myself could be held responsible and

accountable for plagiarism, if any, detected later on.

Signature of the candidate: -

Date: -
 BIBLIOGRAPHY

ARTICLES
 Conditions in Restraint of Marriage. (1897). Harvard Law Review,
10(6), 372-373. doi:10.2307/1322370.

 Contracts. Consideration. Restraint of Marriage. (1901). The

Virginia Law Register, 6(11), 795-795. doi:10.2307/1099139

BOOKS

 Saharay, H., & Dutt, A. (2006). Dutt on contract (pp. 358-359).

Kolkata: Eastern Law House.
 Singh, A. (2016). Contract and Specific relief (12th ed., p. 270).
Eastern Book Company.
 INTRODUCTION TO THE TOPIC

We all know that there are certain elements which are to be fulfilled to
make a contract a valid contract and if these elements are not present in
a contract then the contract would be void or voidable. But there are
instances where the agreements are expressly void agreements i.e. these
type of agreements are declared void by the law itself. It is also known
that an agreement that is not enforceable by law is stated as a void
agreement under The Indian Contract Act 1872 and the contract states
few agreements that are expressly declared as void agreements.

One of them is the Agreement in Restraint of marriage. It is the policy of

law to discourage agreements, which restrain freedom of marriage. So it
states that: - “Every agreement in restraint of the marriage of any
person, other than a minor, is void. The restraint may be general or
partial, that is to say, the party may be restrained from marrying at all, or
from marrying for a fixed period of time, or from marrying a particular
person, or a class of persons, the agreement is void”. The only exception
is in the favour of minor1. The brief overview of the whole topic is derived
from the section 26 under Chapter II of the Indian Contract Act 1872
where it is clearly stated that “Every agreement in restraint of marriage of
any person other than a minor, is void.” It is intriguing to know that the
contract act was the first law that was brought in India which would make
any agreements voids such as in this case it restrains the liberty of the
adults to marry someone according to their wish or marry with someone
with specified conditions applied. As marriage is an essential element of a
civil society where it is filled with the significance of ethics and purity it
was the duty of legislature to maintain its purity in the society so it had to
come up with the concept of Agreement in Restraint of marriage and put

1
 Lowe v. Peers, 4 Burr. 2225, 2230 (K. B. 1768).
it up in “section 26 of the Indian Contract Act 1872”. However the
fundamental idea behind this section was to “ensure that the citizens did
not lose their right to marry as per their choice due to some contracts
that was signed and which made an obstacle in the process of marriage or
at any point of time in the whole marriage life”.

So, a contract affecting a major and restricting his or her right of

marrying according to his or her own choice is void. Like if B agrees upon
the agreement that if A pays him Rs. 5000000 he will not marry C then
this contract is void. This can also be a restraint that if a person allowed
to do marriage only after he is capable to earn which common society
thinks that it would reduce the burden on the parents, and the society at
large. A wagering contract for Rs. 60000 that the plaintiff would not
marry within six years is also prima facie in restraint of marriage and
void. The courts have always discountenanced bargains on the subject of
marriage2.

2
 Hartley v. Rice Et Ux., 261 P. 689, 123 Or. 237
 EXPLANATION OF THE TOPIC

Under Indian Law, the idea of restraining the marriage on a contractual

basis being discouraged in our country is a good deed as perhaps our
country is full of cultures and the people are here with various moral
welfare, so removing the obligation which would allow the agreements in
marriage would lead to drastic consequences such as increase in
population and destroying the moral welfare of people. In English Law, a
condition in restraint of marriage is void; but it has frequently been
decided the conditions in restraint of marriage limited as to time, as to
place, and as to a person, are good notwithstanding the rule of civil law 3.
The whole concept of making the agreement in restraint of marriage void
can be traced from a case under English Law-:

Lowe v. Peers- Here the case was that if the defendant married another
women other than the plaintiff, he would have to pay her 1000 pounds as
a penalty within three months of marrying anyone else. Here the court
remarked that the intention on the part of the plaintiff was not that he
should marry her but he should not marry anyone else. So, the contract
was declared void as it was purely restricting the wish of plaintiff to marry
wilfully4.

Another case which was put as good precedent in 1927 for this concept
was:-

Hartley V. Rice5 – The facts of this case were that there was a bet
between two parties which fully restrained the right to marriage of one of
the parties and the contract was fully focused on the celibacy of a man
which automatically declared the whole contract void.

3
Re, Whitting’s Settlement (1905)1 Ch 96 (103)
4
Lowe v. Peers, 4 Burr. 2225, 2230 (K. B. 1768).

5
Hartley v. Rice Et Ux., 261 P. 689, 123 Or. 237
Now if we talk about the contractual relationships in India, it was brought
by the British government which were in the power at that time and came
up with Indian Contract Act 1872 under which the section dealt with the
restraint of marriage was:-

Section 26 of Indian contract Act- This section laid down by the British
government in 1872 is stricter than the English law as it does not admit of
any exception in favour of partial restraints of a reasonable nature but
declares every agreement operating in restraint to be void and
enforceable. Such as we know that “There is a great difference between
promising to marry a particular person and promising not to marry
anyone else”.

This section actually promises the common citizens of India to protect the
morality of marriage which is embedded in the present Indian society.
This is the reason that if there any contractual obligation because of
which an adult is not able to marry wilfully then it is seemed to be
unethical in the Indian Society and to protect this the need of this section
is more prominent in our society which exactly states that “Every
Agreement in restraint of the marriage of any person, other than a minor,
is void.6”

However the sole exception to this section recognized is regarding the

restraint of the marriage of a minor but a contract affecting a major and
restricting her right of marrying according to her own choice is void 7.

“Difference between marriage brokerage contracts and

agreements in restraint of marriage”- Moving on to some other areas
of research upon this topic, sometimes the marriage brokerage contracts
are often confused with the agreement in restraint of marriage while they
both are different. With the going on traditional culture in India the
Marriage brokerage contracts were fairly popular in India where a third

6
Latafa V. Shaharb AIR 1932 Oudh 108
7
Lowe v. Peers, 4 Burr. 2225, 2230 (K. B. 1768).
person was paid for bringing up a marriage and negotiating it, not every
religion but it was quite famous among Hindus in the pre-independent
era. In this type marriage the broker was paid a sum of money according
to the difficulty in bringing up the marriage of a particular man or women.
Even if the Brokerage contracts were quite popular in our country but the
judiciary did not enforce such agreements.

The other reason which could help us understand the importance of

Section 26 in this act can be understood by this case:-

Venkatakrishnayya v. Lakshminarayanaiv 8- The judgement made

here was regarding the fact whether a father can give his daughter to any
person without her will for the exchange of money. The Full bench
judgement in this case held that the purpose of the contract was against
the morals of common citizen and opposed to the public policy which
quite unethical in our Indian Society. It was also held in this case that it
was the duty of the father to find the best suitable boy for his daughter
and if the boy brings up a contract for the happening of marriage or for
prohibiting from happening of marriage then the whole contract is void.

“Section 23 of Indian Contract Act 1872”- Further, an agreement is

restraint of marriage is different from an agreement of brokerage of
marriage as the in the brokerage of marriage a third person is involved
where his or her marriage not affected while he brings up the marriage of
other two people. Nonetheless, these both topics are different but they
are still void under this act.

Repealing of brokerage of marriage- This theory can be well

understood by the case of Tihadi v. Gokhei Panda9 in which it was held
that the agreement or the contract must be lawful unless it is immoral
and or forbidden by the law. It was further held in this case that a
contract of money payment for the happening of marriage is held to be
considered illegal as the marriage should be free will of both the adults
8
Krishnayya v. Lakshmi Narayana (1909) I.L.R. 32 M. 185
9
Gopi Tihadi v. Gokhei Panda, AIR 1954 Orissa 17(3)
and should not be under an obligation because it is considered to be
opposed to public policy.

“Section 26 vs. Section 28 of Indian Contract Act 1872”- Where

section 28 of Indian contract Act states the agreement completely void
only if there is complete restraint in marriage but unlike section 28 of this
act, section 26 is stricter than this act as whether the act of marriage is
partially restrained or we can say that if a particular person is restrained
from marrying for a particular period of time or he or she is permanently
retrained from marrying because of a contractual obligation, any such
contract is void.

Abbas Khan and Another V. Nur Khan 10 – Here a bridegroom

belonging to the community Ilaqa makhad was forced to pay a sum of
money which is particularly known as “Rogha” in their community to his
wife’s nearest male relative because he married the women without the
permission of her nearest relative who is a male. In this case the Lahore
court held that “To enforce such a custom would be tantamount to saying
that a woman of full age cannot marry a man unless the latter pays a
large sum, which it may be impossible for him to do, to her nearest male
relative. It would be a custom in restraint of marriage and opposed to the
principle of section 26 of the Contract Act.”

LITERATURE REVIEW

10
Abbas Khan v. Nur Khan, AIR 1920 Lah 357
TOPIC OF THE ARTICLE – Conditions in Restraint of Marriage.
(1897). Harvard Law Review, 10(6), 372-373. doi:10.2307/1322370

REVIEW

This article primarily focuses on the contracts that lead to the restriction
on marriage and which ultimately is regarded as against public interest
and states that the cases operating in restraint of marriage are held to be
illegal. Further the Article cites the case of King V. King11 where the
plaintiff was contracted to be the defendant’s housekeeper as long as he
lives and will not marry during that time. The whole contract was held as
illegal in this case as it was against the public morality. The article applied
the same analogy to certain different cases such as King V. Sears,
supra12.

The concept of brokerage of marriage was also made pretty clear by citing
the case of Duval V. Wellman13 in which a widowed lady demanded her
amount back which she advanced to the broker for the happening of
marriage. However the court here held that she would obtain the amount
under contract if deemed valid but also pronounced the whole transaction
as illegal.

The article concludes by referring to the fact that if a contract does not
focus on restraining of marriage and is objecting for another purpose then
the contract can be a valid contract but if the contract restrains any
marriage, partially or absolutely, then the whole agreement is declared
illegal.14

11
Kinlg v. King, 59 N. E. Rep. I I 1
12
King v. Sears, 2 Cromp. M. & R. 4
13
Duvaiv. Wellman, 124 N. Y. I56.
14
TOPIC OF THE ARTICLE: Contracts. Consideration. Restraint of
Marriage. (1901). The Virginia Law Register, 6(11), 795-795.
doi:10.2307/1099139

REVIEW

This article particularly focused upon the idea of partial and fully restrain
of agreement of marriage. A case was dealt in this article which referred
to the fact that if there is sufficient consideration to support a contract
other than the fact that there was a partial consideration to restrain the
marriage then the contract may be valid in spite of the fact that it
promotes restraining of marriage.

It further states that to omit to marry is not illegal, and it would seem
that what a person may lawfully omit to do he may, without violating any
law, promise to omit. It would appear naturally to follow that the only
result of making such a promise would simply be that no legal could be
founded on the promise, and no remedy afforded for its breach. It is
difficult to see any good reason for denouncing such contract as illegal in
the sense of violating any law, or of placing parties who may have
entered into it outside the pale of the law.
 CONCLUSION

Marriage is one of the purest things that is considered as the basis of the
society by the law and this is the reason that any contract which becomes
an obstacle in the process of marriage or which enforces that marriage
forcefully because of the contractual obligation, becomes void. So the
ethics related to the values related to the marriage process in India is so
pure for which there is a need to protect this value and the need of
Section 26 of Indian contract Act 1872 arises. Relating the importance of
Section 26 to the present Indian society it can be well understood that
this section was brought to protect the wilful nature of marriage i.e. the
adults can decide their groom and brides with their free consent. Any
contract thus restraining the adults from doing the marriage wilfully is
considered as illegal.

Such as promising to marry a person for a certain amount of money is

clearly not the moral values that resides in our society, hence the
legislature seeing this declares these type of agreements as void.