The Indian Contract Act, 1872 governs the formation and enforcement of contracts in India. An agreement that is enforceable by the law of the land is a contract. For an agreement to become a contract, it must consist of a lawful object, lawful consideration and also the free consent of participating parties.On the other hand, agreements that cannot be enforced by law are void.Some particular sections of this act throw light on the kinds of contracts that shall be considered valid or void in a given situation. One such section is Section 26 which states that every agreement in restraint of marriage is void, except for when it is meant for restraining a minor’s marriage. This article shall expound upon this topic and the cases associated with it. Marriage is a highly personal decision taken by two individuals. Preventing someone from marrying a person of his/her choice is a step taken in the wrong direction. It would symbolize that marriage holds no more value than a materialistic consideration and a contract can interfere with the privacy of individuals. Such agreements would be against public policy.
THE LANDMARK CASE OF LOWE VS PEERS
The case of Lowe vs Peers dates back to 1768. The English law did not support subjecting marriages to restrictions. In this case, the defendant had agreed to marry no one else except for the promisee, under seal. It was also promised that if he married someone else, he would pay her one thousand pounds within three months of his marriage. The court did not find the existence of any real promise in this case. There was no obligation to marry imposed on the woman and the man’s promise was primarily of not marrying anyone else. Hence, there was no promise to be carried out by either party and the contract was explicitly restrictive in nature. Therefore, it was held to be void.
UNDERSTANDING THE APPLICATION AND SCOPE OF SECTION 26
Section 26 reads, “Every agreement in restraint of the marriage of any person, other than a minor, is void.”In Rao Rani v Gulab Rani, there was a conflict between two widows of a deceased man. Later, they reached a compromise where they agreed that both of them would be entitled to equal share against the property of the deceased. Also, if either one of them were to remarry, she would have to forfeit her rights in the property. Gulab Rani remarried and moved to the house of her new husband. When the disputes resurfaced, it was contended that the compromise was in restraint of marriage and was void under section 26. The court affirmed that the scope of section 26 was quite general. However, it agreed to consider partial and indirect restraint on marriage. In this case, Gulab Rani was not forbidden from remarrying. She had the right to choose between keeping her share in her late husband’s property or pursuing a new life. Hence, the court held that the compromise was binding and not void under section 26.
In Latafatunissa v Shaharbanu, in an appeal by the defendant, it was upheld that absolute restraint on marriage was not the same as restraint imposed on remarriage. The widow defendant was not prohibited from electing to remarry but if that were the case, she would have to let go of her allowance. Such conditionswere held not to be improper or illegal. In Badu v Badarnessa, a contract that allowed the first wife to divorce her husband if he married someone else, was held to be valid. This is because there was no restriction on the man to marry another woman but consequently, he would have to divorce his first wife who would also be free to start a new life. The same conclusion was reached in a similar case of Mahram Ali v AyshaKhatum. In Shrawan Kumar v Nirmala, the plaintiff alleged that the defendant was going to get married to him but she was going to marry someone else instead. The plaintiff sought a permanent injunction to restrain her from marrying anyone else but him. The court believed that an agreement restraining someone’s marriage is void under section 26. The right to marry was held to be an “integral part of right to life and liberty” and thus, it is equivalent to a fundamental right. The plaint was quashed for being nefarious and vexatious.
In a very recent case, Moyana Khatun v State of Punjab, the petitioners had pursued a deed of live-in relationship. The female partner was eighteen years old and the male partner was nineteen years old. In one paragraph, both parties agreed that it was not a marital relationship. Yet, in a subsequent paragraph, it was stated that when both parties attained marriageable age, they would solemnize their marriage. The State counsel, along with other relevant facts, argued that the agreement was in restraint of marriage and was void under section 26 of the Indian Contract Act. The petition was eventually dismissed was by the court. From the above cases, we can understand that the scope of this section is left wide and open to interpretation of the judges. For example, this section makes no mention of absolute or partial restraints on marriage. A change was also proposed in this section by the thirteenth report of the Law Commission of India. The report suggested adding an additional clause thatstated that agreementsin partial restraint of marriage of anyone, except minors, are void provided that the courts regard such restraint as unreasonable with respect to the circumstances. If adopted, this suggestion would have allowed reasonable restrictions to be placed on marriages. For example, it could have allowed parents to enter into contracts with their children to make them agree to not get married until they are financially independent. This would be a very positive step because, in India, there are many instances where retired parents have to bear the cost of living for the families of the children who remain financially dependent on their parents for various possible reasons.
Marriage has always been considered as a personal connection between two consenting adults. Moreover, marriages in our country are considered by many as sacred institutions guarded by the blessings of the Gods. This relationship does include materialistic divisions, but it is considered much more than that as a whole. Section 26 is in opposition to restraining someone from marrying as per his/her will. The only exception here is that of minors. Therefore, an agreement made as a restraint on the marriage of a person while he/she is a minor cannot be declared void. However, the language of this section is still ambiguous. Often this section has been used as a defence to avoid contracts by a party that was at a loss. As a result, the courts had to clarify whether the terms of a contract were such that they could make the agreement void under section 26 or not. It is not wrong to presume that there is a scope for elaborating further on this section and making it more precise.
Author(s) Name: Kumari Kanishka (Symbiosis Law School, Noida)
Indian Contract Act, 1872, §2(h), No. 09, Acts of Parliament, 1872 (India).
Indian Contract Act, 1872, §10, No. 09, Acts of Parliament, 1872 (India).
Indian Contract Act, 1872, §2(g), No. 09, Acts of Parliament, 1872 (India).
 Lowe v. Peers, (1768) 4 Burr 2225.
Indian Contract Act, 1872, §26, No. 09, Acts of Parliament, 1872 (India).
 Rao Rani v. Gulab Rani, ILR 1942 All 810.
 Mt. Latafatunissa v. Mt. Shaharbanu Begam, AIR 1932 Oudh 108.
 Badu v. Badarnessa, (1919) 29 CLJ 230.
 Maharam Ali v. AyshaKhatum, (1914-15) 19 CWN 1226.
Shrawan Kumar v. Nirmala, 2012 SCC OnLine All 4011.
Moyna Khatun v. State of Punjab, 2021 SCC OnLine P&H 920.