Scroll Top


In simple terms, an Agreement is where two parties come to a common point and agree on the same in mutual terms. Restraint means anything which keeps it controlled or in limit. From ancient


In simple terms, an Agreement is where two parties come to a common point and agree on the same in mutual terms. Restraint means anything which keeps it controlled or in limit. From ancient times it has been a method for the parties involved in the marriage to ask the other party for any kind of gift in cash or any other way as an acceptance for the marriage. But we all know the fact that it is illegal to do so. We have different laws which apply to different sects for example Muslim Law governing the muslins and The Hindu Marriage Act, 1955 for the Hindus. Likewise, there are individual laws for each of the religions like for the Parsis and Christians as well. There are few conditions for a marriage to become a valid one in legal terms. Also, there are separate laws that help in dissolving the marriage through divorce or separation. Another mode of dissolving a marriage is by declaring it a nullity. This happens when a marriage is either void or voidable. Even though under a few circumstances a marriage may be thought to be solemnized, there is some element lacking which renders the marriage as no effect. Void is where it is not acceptable in legal terms or if it is not binding. In several cases, conditions were held void. The contract is where a party enters into a formal and legally binding agreement. The law relating to contracts is in The Contracts Act, 1872.

Valid Marriage

A Valid Marriage is something that is done according to the law and is binding with the laws. In India which is a secular country, there is the Hindu Marriage Act 1955, which was introduced to have lawful marriages and in case of any dispute to be solved either by separation or any other way. Under the Hindu Marriage Act, 1955 there are certain conditions for it to become a valid marriage. They are as follows –

  • Any person marrying must not be already married or must not have a living spouse from their previous marriage.
  • Only after legal age is obtained, marriage can take place that is eighteen years for girls and twenty-one years for boys.
  • While getting married, consent must be given freely and must be of a sane mind to understand the consent given while getting married.
  • Either boy or girl whoever is getting married must not suffer from any mental illness.
  • The Bride and the Groom must not be Sapinda that is the cousin of the marriage.

These are the basic conditions that when followed will become a valid marriage under the Hindu Marriage Act, of 1955.

Void Marriage

According to The Hindu Marriage Act, 1955 according to section 5 provides for the void marriage on the following grounds –

  • If the person marrying has a living spouse or is already married then the marriage becomes void.
  • If the Bride and Groom are below the legal age for marriage then the marriage becomes void.
  • The consent for the marriage must not be given without consent otherwise it becomes a void marriage.
  • If either of the married persons suffers from mental illness marriage is void.
  • If they are cousins at the time of marriage then it becomes void.

        Under these conditions, a marriage is said to be a void marriage.

Concept of Agreement in restraint of marriage

According to section 26 of the Indian Contract Act 1872, any agreement in restraint of marriage is void except for a minor. If there is partial restraint on marriage, only if it is reasonable it may be enforced. But it has to be shown how much reasonable it is for it to be enforceable. Usually, the legal age of marriage for girls is eighteen years and for boys, it is twenty-one years. Under eighteen years of age, they are considered minors. As mentioned above agreement in restraint of marriage that is whoever is stopping the marriage is considered to be void unless a minor that is under eighteen years of age is involved. There are a few conditions where restraint of marriage is sometimes legal and otherwise considered to be illegal or partially valid. They are stated as follows:

  • Restraint of marriage in the case of widows or widowers is considered to be legal apart from statutes.
  • Unless there is a reasonable reason for the restraint of marriage it is partially valid. If there is done on unreasonable grounds then it is not valid.
  • Restraint of marriage in case of previously unmarried is considered to be illegal.
  • If the testator did not intend to restrain marriage then the restraint of marriage is considered legal and valid.
  • The Language is construed to be a condition that is a limitation in the restraint of marriage.

If there is such a condition where the testator should give property to an unmarried woman on the condition that she be remained unmarried is normally pronounced by the court to be legal. But it is uncertain that the court might give the exact reason as to why it is actually against public policy. But it may be said that marriage is favoured by law, and public interest is required for it to be fostered that is to be encouraged or advanced, protected by law. On the other hand, if the testator gives property as long as the woman stays single till the time of marriage, the same is defeated by the provisions of the court. Few courts might be more specific and say that marriage restraint tends to encourage depopulation, immorality, and the contracting of undesirable marriages because of restraint which is put upon the law of natural selection.[1] Usually, complete restraint on marriage is held void as it is against public policy. Whereas partial restraint mainly when a testator condition upon the marriage is valid only when there are reasonable grounds for the same. If partial restraint of marriage is considered to be valid then the respective court has to examine all the necessary details like the details of both the parties, the relation that they bear with each other and the purpose for which the restrain of marriage is imposed. This particular aspect of restraint in marriage mainly based on the condition goes back to the time of Romans.

In Rao Rani v. Gulab Rani,[2] the provision of section 26 of the Indian Contracts Act was followed. It was bought before the Allahabad High Court where there were two widows of the same man called Ram Adhar. The matter was a dispute regarding who would receive Zamindari landholdings of the man. The issue was later discussed amicably by signing a compromise deed which meant that both of them would receive it equally unless one of them remarries. If one of them would remarry then the other would be entitled to the whole property. Later Gulab Rani remarried as a result of which the whole property was under the control of Rao Rani. Later Gulab Rani filed for the owner stating the original deed was void under the restraint of marriage. It was anyways later decided that the woman who would remarry would forfeit the property that she would originally receive if she remained unmarried.


Law doesn’t originate itself all of sudden. Only after a few reforms, amendments, and many cases hold themself in history for a long time. Marriage in legal terms means a formally or legally recognized union between two people precisely between a man and woman. India is a secular country with different kinds of religions present. But the Indian Contracts Act 1872, under section 26 states that any agreement in restrain of marriage except for a minor is void. Restrain means stopping it from happening. This is not acceptable as people believe marriage to be a religious sacrament. They respect it and expect others to respect it too. Each religion has its own set of laws that apply to the respective religion. Though partial restrain of marriage on valid grounds is legal a complete restrain of marriage is void in the eyes of law. There are a few limitations and exceptions for the same. Overtime law changed according to the changes that took place due to the course of history. There are a few basic conditions that need to be fulfilled to declare a marriage the valid one. There are legal ways of having separation of unsuccessful marriages too. But not letting it happen in the first place is not right to promote or encourage, only on valid grounds it is considered to be legal though there is the exception of a minor that is someone who is below eighteen years of age.

Author(s) Name: Shruthi Reddy L (Symbiosis Law School, Hyderabad)


[1] Olin Browder Jr., Conditions and Limitations in Restraint of Marriage , 39 MICH. L. REV. 1288 (1941).

[2] Rao Rani v. Gulab Rani 1942 SCC OnLine All 55  : ILR 1942 All 810 : AIR 1942 All 351 : 1942 RD 644