Introduction
The right to marriage comes under the purview of Article 21, which is considered to be the heart and soul of the Indian Constitution qua it guarantees the right to life and personal liberty to ‘citizens’ as well as ‘non-citizens’ of India. Apropos of this Article, Section 26 of Indian Contract Act provides that every agreement in restraint of the marriage of any person, other than a minor, is void. Thereby, it reinforces a person’s right to enjoy the freedom of marriage by delegitimizing the agreements which impede that granted freedom. Thus, the agreement which limits a person from choosing his/her life partner or to get married to a person of his/her own wish is void, pro tanto. But it is pertinent to note that the agreement in the restraint of marriage is a pole apart from the contract of betrothal agreements and prenuptial agreements.
However, the Hon’ble Supreme Court of India has never failed to affirm that any contract that has marriage as its object is null and void as it is contrary to public policy. Hence, such agreements are not legally tenable in India.
Pursuant to Section 26 of Indian Contract Act, an agreement that implies impediments on marriage either wholly or partially i.e. terms of which prescribes not to marry certain people of the specified class or community or to remain unmarried till a predetermined period is void. Though these agreements resemble to be valid as it fulfills all the essentials required for a valid contract, it is expressly declared void as it considered as the injury to the moral welfare of the people.
Which of the agreement is void?
- In an agreement, Alina concurs with John that she will not marry Chris if she gets the sum Rs. 50000 in return for her deed from him.
- Alina’s mother agrees to John that she will persuade her daughter to marry him by banning her from marrying any person other than him, but if only if John makes the payment of Rs. 1 lakh in return.
- John dies in an accident, two co-widows, Alina and Jenni, agree that if one of them opts for remarriage, that person should forfeit her rights to claim her share in the properties of her deceased husband.
All the aforementioned agreements are void as it is in the restraint of marriage as per the provisions of Section 26 of Indian Contract Act. In the case of Venkatakrishnayya v. Lakshminarayana,[1] the court has held the act of paying consideration to the father for his deed of giving his daughter in marriage is void, as it resembles the transgression of public policy, which is contrary to the encapsulation of Section 23 of Indian Contract Act. Substantially, Sanjay Purshottam Patnakar v. Smt. Prajakta Pramod Patil[2] is the case where the court upheld the right of a widow to claim her deceased former husband’s property even after the remarriage. Per contra, if an agreement contains a condition that the wife shall require to relinquish her right to be maintained on her remarriage, it is valid since it is not an agreement in restraint of marriage.[3]
Agreement In Restraint Of Marriage Under Common law
As far as common law is concerned, Lowe v. Peer[4] is the case where the court of King’s Bench set a precedent by expressly holding the invalidity of the agreement in the restraint of marriage. The rationale following the case facts was that as per the agreement made, the defendant must pay 1000 pounds to the plaintiff if he marries any person other than the plaintiff. The court pronounced that it was not a promise to marry her, but not to marry anyone else, and yet she was under no obligation to marry him, thus, the agreement is void as it holds no promise but only restrictions.
Similarly, in Hartly v. Rice[5] case, the court held the agreement by where one of the parties concurred not to marry until a specified time as void since it is most likely equivalent to giving the vow of celibacy under coercion.
The case of The Minister for Education v. Oxwell and Moreschini,[6] wherein the plaintiff agreed to provide the defendant with the two-year course of teacher training but on the condition that she should not terminate the course after its commencement for reasons other than death, disease or accident. If so, she would require repaying the money to the plaintiff that she had received earlier. It is noteworthy that one of the terms pertaining to the contract prescribed by that institution states that the course will terminate with her marriage. Out of nowhere, she got pregnant during the course of training and wanted to marry the father of that child immediately. That institution’s principal apprised her of the terms and importuned the defendant to resign as she has decided to get married. Consequently, the plaintiff sued her for the repayment and claimed for the enforceability of the agreement. But, it was held void as it is against the public policy, being a restraint of marriage. Thereafter, a slew of cases followed the rationale established in this case.
Section 26 of Indian Contract Act
Features,
1. The basic notion underlying this provision is to reinforce the right granted by Article 21 of the Indian Constitution i.e. to proscribe every possible deed that may snatch away the liberty of either party to marry a person of his own choice.
2.The agreement in restraint of marriage is void as in the first place, it is contrary to public policy. Secondly, the law constrains all kinds of inference in the institution of marriage even it may be in the form of agreement.
3. An agreement that serves to hold either the partial or absolute restraint of marriage is void, unlike Section 28 of Indian Contract Act, which denounces agreements only in complete restraint of legal proceedings as void. Besides, it is pertinent to note that the English common law allows the agreement in partial restraint of marriage.
4. All the agreement in the restraint of marriage is void, but such agreements that impose marriage limitations on a minor could be exalted to the valid status.
Case laws
In the case of Abbas Khan v. Nur Khan,[7] the Allahabad High court affirmed that even though the customary practices impose a partial restraint on marriage, it is void as it counters the scheme of Section 26 of Indian Contract Act. The judiciary since followed the rationale of this case and has been upheld that in India, an agreement either imposes absolute or partial restraint in marriage is void. Per contra, Law Commission’s 13th report prescribed that the partial restraint in marriage might be endorsed valid, but only at the court’s discretion i.e. after analyzing the factual matrix of the case, if the court finds its reasonableness.
Air India and Others v. Nergesh Meerza and Others[8] is the case where the court validated the restriction on marriage inflicted by the service regulations of Air India and Indian Airlines. The mentioned regulations insist air hostesses retire if she
- Attains 35 years, or
- Get into a marital relationship within 4 years of the service, or
- Is on her first pregnancy.
The Apex Court reprimanded the rule against the first pregnancy on the grounds of Article 14; but, upheld the partial restriction on marriage by vindicated it to be the practical need of the service. Purportedly, many rationalized the judgment as the regulations in question have never limited an employee from getting married since it gives such freedom to leaving the job.
The Rao Rani v. Gulab Rani[9] and the A. Suryanarayana Murthi v. P. Krishna Murthy[10] are the cases where the court had held that the agreement which curbs one of the widows of the same man from inheriting his properties after such widow’s remarriage as valid. It was ascertained that as the agreement has not implicated direct restriction on marriages, it will never come under the purview of Section 26. In the former case, chief justice Ahmad expressed that “All that was provided was that if a widow elected to re-marry, she would be deprived of her rights given to her by the compromise. In other words, no direct prohibition to re-marry was imposed by the compromise and the compromise was arrived at in order to preserve the family properties and to ensure their proper management.”
Though the rationale of these cases may seem to be contrary to the judgment rendered in the aforementioned Sanjay Purshottam Patnakar case,[11] one must cognize that the pronouncements always rely on the material fact, parties contentions, and the pieces of evidence produced before the court. Withal, the judicial interpretation has a pivotal role to play in construing the relevant provisions with the impugned issues and facts.
Conclusion:
Reiteratively, as per the scheme of Section 26 of the Indian Contract Act, in general, all the agreement in restraint of marriage is void regardless of whether it imposes partial or absolute limitations on marriage that challenges the fundamental right granted under Article 21 of the Indian constitution. The only exception that has been mentioned in the Section itself is that the agreement in restraint of minor marriage; it is valid as the minor marriages are against the collective social policy and public interest.
Reference:
- https://www.lawctopus.com/academike/agreements-restraint-marriage/
- https://blog.ipleaders.in/agreements-in-restraint-of-trade-marriage-and-legal-proceedings/
[1] (1908) 18 M.L.J. 405 : I.L.R. 32 Mad. 185.
[2] SC 2015 BOM 2217.
[3] Lafatunissa v Shaharbanu.
[4] ((1768), 4 Burr. 2225).
[5] (1808) 10 East 22 .
[6] [1966] WAR 39.
[7] AIR 1920 Lah 357 : ( 1920 ) 1 Lah 574 : 58 IC 167 144.
[8] AIR 1981 SC 1829.
[9] AIR 1928 All 552.
[10] AIR 1957 Ori 125.
[11] Id at 2.
