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AGREEMENTS IN RESTRAINT OF MARRIAGE UNDER THE INDIAN CONTRACT ACT, 1872

Author: Khushi Bansal, I year of B.A.,LL.B. from Symbiosis Law School, NOIDA


ABSTRACT

Marriage is considered as a sacrosanct event. It is a social and legal union between a man and a women and their families. It is said that a new phase of a person’s life starts when one gets married. It is important that no other person restricts someone from getting married in their life or not restrict the person from marrying a person of a particular caste or group. If something does such an act, it will be hit by Section 26 of the Indian Contract Act, 1872 which says that,“Every agreement in restraint of marriage of a person, other than a minor is void”. This paper is organized in five parts. The first part gives a brief introduction about Section 26 of the contract act and the need for this provision. The second part explains the provisions of the agreements in restraint of marriage and a general exception to this section. The third part tries to make the topic clearer with the help of two Indian case laws. The fourth part examines how marriage brokerage agreement and contract of betrothal is different from agreements in restraint of marriage. The fifth and the last part explains the difference of the agreements in restraint of marriage between the English Contract Law and the Indian Contract Act.


INTRODUCTION

Section 26 of Indian Contract Act, 1872 deals with agreement in restraint of marriage. The verbatim says that, “Every agreement in restraint of the marriage of any person, other than a minor is void.”[i]The Indian Contract Act became the first law in our country which had such provision. Rome was the first country in the world to declare these agreements as illegal.Agreement means the promises made between two parties having offer, acceptance and a consideration. Any agreement which stops or prevents a person from marrying is void in the eyes of law.


Let’s take an illustration for better understanding:

A tells S, “I will give you 10 lakh rupees if you do not marry your entire life.” S accepts this offer but after two years gets married. A after knowing about S’s marriage files a suit against S. Do you think A will succeed? In this situation, A will not succeed as any agreement which stops a person from getting married is null and void as per law.


WHY WAS THIS PROVISION INTRODUCED?

This provision was introduced so that an adult person can marry a person of his/her choice which is also provided to a person under Article 21 of the Indian Constitution which is also a part of fundamental rights (Part III). Article 21 states that every person whether citizen or non-citizen has the right to personal liberty which also includes marrying a person of choice. Also, according to me it is ethically wrong to stop a person from marrying a person of his/her choice. It is a provision of law to discourage agreements which restraint freedom of marriage.[ii]


PROVISIONS OF AGREEMENTS IN RESTRAINT OF MARRIAGE UNDER INDIAN CONTRACT ACT, 1872

As we know that all the agreements which hinders a marriage are void, these agreements are of two types:

1. General Restraint- It means completely debarring a person from getting married.

Illustration: A father saying to her daughter not to marry her entire life. This kind of a restraint is a general restraint.

2. Partial Restraint- this means stopping a person for a specific period of time or for not marrying a particular person or a person of a particular caste.

Illustration: A father asking her daughter not to marry a person belonging to a person of other caste is a partial restraint.


GENERAL EXCEPTION TO SECTION 26

All agreements in restraint of marriage of minors is not considered as void as this is done for the minor’s benefit by their parents or legal guardians. This means that any agreement which debars marriage of a person below 18 years of age is valid as per law.


Illustration 1: If X, a legal guardian of A stops her from marrying till she attains 18 years of age and A agrees to this. This agreement cannot be challenged in the courts. But, a parent or legal guardian can only restraint the person till 18 years of age. Once, the person attains 18 years of age, any such agreement will not be considered.


CASE LAWS RELATING TO AGREEMENTS IN RESTRAINT OF MARRIAGE

SHRAWAN KUMAR@PAPPU vs NIRMALA

High court of Judicature at Allahabad

4th December, 2012

Bench- Pankaj Mittal

Petitioner- Shrawan Kumar@Pappu

Respondent- Nirmala

FACTS- The petition reveals that the petitioner i.e., Shrawan alleges that his marriage was agreed to be solemnised with the respondent. But the respondent now wants to marry someone else and therefore the petitioner wanted permanent injunction to be passed restraining Nirmala from marrying anyone else except the petitioner.


JUDGEMENT PRONOUNCED BY THE COURT- The petition filed by Shrawan Kumar was dismissed by Pankaj Mittal saying that stopping Nirmala from marrying the man of her own choice will be considered as restraint of marriage. He also said that a sacred institution like marriage cannot be forced upon or put a restraint. He said that ‘Right to marry is a crucial part of right to life and liberty and is one of the fundamental rights.[iii]


RAO RANI vs GULAB RANI

Decided on 15th April 1942

High Court of Judicature at Allahabad

Bench- Justice Ahmed, then chief justice

Petitioner- Gulab Rani

Respondent- Rao Rani

FACTS- Both Rao Rani and Gulab Rani were widows, both of them had same husband named Ram Adhar. After their husband died, conflict arose between the two related to inheritance of zamindari land holdings. However, this dispute was finally settled by signing a compromise deed but the Revenue Court also stated that if any of the two would re-marry, then the entire land would go to the other one. Gulab Rani, however married again and so as per the judgement, entire land holding was transferred to Rao Rani. Years later, Gulab filed a suitin Allahabad High Court to regain her part of property claiming that the compromise deed was void as it prohibited her from marriage.


DECISION PRONOUNCED BY THE COURT- The then chief justice, Ahmed said that according to the court’s order if any one of them would remarry, the entire property would be given to the other. Justice Ahmad said that no direct prohibition was imposed on either of them to re-marry and hence, it was not violative of Article 26 i.e., Agreement in restraint of marriage. Hence, the entire land holding was transferred to Rao Rani as she had not re-married unlike Gulab Rani.[iv]


DIFFERENCE BETWEEN MARRIAGE BROKERAGE AGREEMENT, CONTRACT OF BETROTHAL AND RESTRAINT OF MARRIAGE

Marriage brokerage agreement is the one in which a third party enters into an agreement with a party interested in marriage. The party interested in marrying tells about the specification of required partner and the broker finds as per the specification and gets paid for their work. The marriage companies like Jeevansathi are the marriage broker companies which enter into agreement with their customers and find the life partner for them and take money in turn. This will not be included in agreements in restraint of marriage as the third party is finding a suitable partner for their clients.


Contract of Betrothal means a promise in which parents or legal guardian consents to giving their girl in marriage to the groom of their choice. The girl’s choice could also be same as the girl’s choice. This is also not included as violative of Article 26 as there is no restriction not to marry anyone.


COMPARATIVE STUDY OF PROVISION OF AGREEMENTS IN RESTRAINT OF MARRIAGE UNDER ENGLISH CONTRACT LAW AND INDIAN CONTRACT ACT

Under the English Contract Law, the general restraint to marriage, other than that of a minor is completely prohibited which means completely preventing a person from getting married is prohibited. But, under English Contract Law agreements which are partial prohibition of marriage of a person, other than that of a minor is not completely void and is as per the discretion of courts.

But, as per Section 26 of Indian law of contract, all general and partial agreements in restraint of marriage, except a minor are void. The difference between the two are that Indian Act prohibits even partial restraint of marriage of adults but, under English law, agreements in partial restraint are not completely void.[v]


CONCLUSION

It can be concluded that according to Section 26 of Indian Contract Act, all the agreements in partial and general restraint of marriage are void. There is only one general exception and that is in the case of minors (people under 18 years of age). This provision was introduced so that people are given freedom to marry as per their choice. In both the case laws stated above, the judgement was in favour of respondents as in first case, court did not want to restraint Nirmala from marrying a person of choice and in second case, if re-marriage took place, the other spouse is debarred from assets of the dead spouse.


Also, both marriage brokerage agreement as well as betrothal contract are not considered as agreements in restraint of marriage. Lastly, there is difference in partial agreements related to restraint of marriage between contract laws in India and England.

‘No one can stop us from marrying until we do so’

[i] Indian Contract Act, 1872, §26, No. 09, Acts of Parliament, 1872 (India)https://legislative.gov.in/actsofparliamentfromtheyear/indian-contract-act-1872 [ii] Twelfth Edition, Avatar Singh, Contract and Specific Relief Pg. 290 (Eastern Book Company 2019) [iii] Shrawan Kumar@Pappu v. Nirmala, 2012https://indiankanoon.org/doc/108195565/ [iv] Rao Rani v. Gulab Rani, ILR 1942 AIR 810https://www.lawyerservices.in/Mst-Rao-Rani-Versus-Mst-Gulab-Rani-1942-04-15 [v] Souradeep Mukhopadhyaya, Agreements in restraint of marriage, Lawctopus, November 13, 2015https://www.lawctopus.com/academike/agreements-restraint-marriage/