AGREEMENT IN RESTRAINT OF MARRIAGE
“Every agreement in restraint of the marriage of any person, other than a minor, is void”. Explain the given statement in light of the provisions of the Indian Contract Act 1872.
According to Section 26 of the Indian Contract Act, Every agreement in restraint of the marriage of any person, other than a minor, is void.
The basic notion underlying this provision is to reinforce the right granted by Article 21 of the Indian Constitution i.e. to prohibit every possible deed that may snatch away the liberty of either party to marry a person of his own choice.
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 interference in the institution of marriage even if it may be in the form of agreement.
An agreement that serves to hold either the partial or absolute restraint of marriage is void, unlike Section 28 of the Indian Contract Act, which denounces agreements only in complete restraint of legal proceedings as void. But English common law allows the agreement in partial restraint of marriage.
All the agreement in the restraint of marriage is void, but such agreements that impose marriage limitations on a minor could be exalted to valid status.
For example- In an agreement, A concurs with B that she will not marry C if she gets the sum of Rs. 50000 in return for her deed from him.
In the case of Venkatakrishnayya vs. Lakshminarayana, the court held that the act of paying consideration to the father for his deed of giving his daughter in marriage is void, as it is immoral and against public policy.
In the case of Sanjay Purshottam Patnakar vs. Smt. Prajakta Pramod Patil, The court upheld the right of a widow to claim her deceased former husband’s property even after the remarriage. In other words, there is no provision that disqualifies a widow of a male Hindu from inheriting from her husband if she remarries, after his death.
In another case Abbas Khan vs. Nur Khan, The Allahabad High Court affirmed that even though the customary practices impose a partial restraint on marriage, it is void as it violates the provision of Section 26 of the Indian Contract Act.
Under English common law, in the case of Lowe v. Peer 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.
The court of King’s Bench set a precedent by expressly holding the invalidity of the agreement in the restraint of marriage.
