By Souradeep Mukhopadhyaya
AGREEMENTS IN RESTRAINT OF MARRIAGE: POSITION IN ENGLISH LAW:
Under English Law, agreements which restrain marriage are discouraged as they are injurious to the increase in population and the moral welfare of the citizens. Back in 1768, a precedent was set by the Court of King’s Bench in Lowe v. Peers where the defendant had entered a promise under seal to marry no one but the promisee, on penalty of paying her 1000 pounds within three months of marrying anyone else.
The Court remarked-
“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.” The Court found the contract void as it was purely restrictive and carried no promise to carry on either side.
In Hartley v. Rice, it was held that a bet between two men that one of them would not marry within a specified time was void as it gave one of the parties a pecuniary interest in the man’s celibacy.
Further, under English Law brokage contracts or promises made on the consideration of procuring or bringing about marriage, are held illegal on several social grounds.
According to Chitty, a contract whose object is to restrain or prevent a party from marrying, or a deterrent to marriage in so far it makes any person uncertain whether he may marry or not, is against public policy. English Law, however, does not find agreements which partially restrain marriage to be void and in this, it parts ways with Indian law as stated in the Indian Contracts Act, 1872.
However, the Law Commission had forwarded a suggestion to the government decades ago to amend the Act and substitute the relevant section. This has been discussed later.
POSITION IN INDIAN LAW:
In India, contractual relationships between two or more parties are mainly dealt with by the Indian Contract Act, 1872, enacted by the British imperial government which exercised control over the country at that time. Section 26 of the Indian Contract Act of 1872 states that every agreement in restraint of marriage, except those in restraint of marriage of minors, is void.
The Contract Act was the first law to be placed in India which expressly made any such agreement, which in its effect would result in restraining the liberty of either of the parties to marry as per their wish, void. The fundamental idea behind this provision was to ensure that the citizens did not lose their right to marry as per their choice, which is an essential part of a civil society having both personal and social significance, due to some contractual obligation entered into at any point of time.
An agreement in restraint of marriage is different from both a marriage brokerage agreement as well as from a contract of betrothal.
Marriage brokerage contracts, distinguished from agreements in restraint of marriage, are defined as contracts to pay a third person for negotiating, procuring or bringing about a marriage. It may be noted here that brokerage of marriage was prevalent at least amongst the Hindus in Pre-independent India as is noted in The Hindu Law of
Marriage and Stridhan-
“In the Presidency of Bombay, persons negotiating marriage, if successful, often receive from 100 to 1,000 rupees according to the difficulty of the case and the circumstances of the parties; and in Bengal, as you are aware, the Ghataks make large gains by negotiating marriage”.
However, though the brokerage contracts were fairly popular through the country, the judiciary did not enforce such agreements.
In Venkatakrishnayya v. Lakshminarayana, the question was referred to the Full Bench was whether a contract to make a payment to the father in consideration of his giving his daughter in marriage is to be regarded as immoral or opposed to public policy within the meaning of Section 23 of the Indian Contract Act. The Full Bench held that such a contract was immoral and opposed to public policy. The Full Bench dealt only with a case where it was a promise made to the father to induce him to give the girl in marriage.
It was held that it is the duty of the father to select the best possible boy and if he is allowed to enforce a contract of the kind in question it would come into conflict with his duty which he owes to the daughter and hence such a contract as opposed to public policy and illegal.
Brokerage contracts have been denounced as opposed to public policy ever since by the judiciary throughout. For instance, in Gopi Tihadi v. Gokhei Panda and Another, a division bench of the Orissa High Court remarked that-
“The consideration or object of an agreement is lawful unless it is expressly forbidden by law, or the Court regards it as immoral or opposed to public policy. Under the English law of contract, a contract whereby marriage is brought about in consideration of money paid is held to be illegal as marriage should be a free union of the couple… A marriage brokerage contract is a contract to remunerate a third person in consideration of his negotiating a marriage & as such is contrary to public policy and cannot be enforced.”
Now, an agreement of brokerage of marriage is fundamentally different from an agreement in restraint of marriage as it is an agreement necessarily with a third person, i.e. with a person whose own right of marriage is not being affected while he intends to influence the marriage of two others.
However, through agreements of brokerage of marriage are different from agreements in restraint of marriage, they are still void under Section 23 of the Indian Contract Act of 1872.
Further, an agreement in restraint of marriage is different from a contract of betrothal.
Betrothment is a promise to give a girl in marriage. It is called ‘vagdan’, or gift by word, as distinguished from a gift by actual delivery of the bride; and its form is that of a promise by the father or another guardian of the bride in favor of the bridegroom, to give him the bride in marriage.
After betrothal, and separated from it by a variable interval, there comes the marriage ceremony. A betrothal contract entered into by the guardian of a bride with the bridegroom is, however, not an irrevocable contract. Custom, however, dictates that such a revocation of promise must be made with a just cause and a few centuries ago, such a revocation would entail severe penalties which were to be paid to the bridegroom. However, Section 21, clause 6 of the Specific Relief Act of 1877 laid down that specific performance of a betrothal contract could not be enforced.
Now, a Contract of Betrothal too is not considered an agreement in restraint of marriage within the purview of section 26 of the Indian Contract Act because the essential difference between an agreement in restraint of marriage and a contract of betrothal lies in this, that in the latter each party being restrained from marrying anyone except the other, the restraint virtually operates in furtherance of the marriage of both.
Thus, a Betrothal Contract is neither in restraint of marriage nor against public policy as held in Tulshiram v. Roopchand wherein a party had rescinded from the betrothal contract and had later claimed such a contract was void. The plaintiff’s in the case where awarded compensation by the court however, for the amount already spent in anticipation of marriage as well as for the mental torture and lack of social esteem that ensued.
Partial or Complete Restraint:
Further, unlike Section 28 which makes agreements only in complete restraint of legal proceedings void, the choice of words of Section 26 keeps its scope rather general without forwarding a difference between partial or complete restraint of marriage and has been interpreted to hold an agreement serving to either result as void.
One may be absolutely restrained from marrying at all or from marrying for a fixed period or partially restrained from marrying a particular person, or a class of persons, in any of the above events, the agreement is void. Section 26 does not differentiate in between absolute restraint and partial restraint upon the freedom of marriage. This has been strictly followed by the judiciary in various cases.
Abbas Khan and Another v. Nur Khan:
In this case, before the Lahore High Court, a Muslim woman had married a man without the consent of her nearest male relative. It was contended by the kin that being part of the Pathan community of ilaqa Makhad, the bridegroom who married the woman without the consent of her nearest male relative must pay to the man an amount called ‘rogha’ or bride-price under customary Muhammadan law.
The lower courts had ascertained that such a practice existed and had allowed the plaintiff to seek payment from the groom. However, a division bench of justices at the High Court on the second appeal held that such payment of money for marriage to an adult woman was not enforceable by law as it was immoral and opposed to public policy.
Further, Scott-Smith, J. added-
“To enforce such a custom would be tantamount to saying that a woman of full age cannot marry a man unless the latter pays a large sum, which it may be impossible for him to do, to her nearest male relative. It would be a custom in restraint of marriage and opposed to the principle of section 26 of the Contract Act.”
Thus, even though the custom only imposed a partial restraint on marriage subject to payment of a certain amount, it was found in conflict to Section 26 of the Contract Act.
The judiciary has since followed this interpretation and thus, any agreement in restraint of marriage, whether absolute or partial, is held void in India. This is in contrast to English Law which allows for agreements in partial restraint of marriage.
However, a seeming departure from this interpretation was seen in the matter of Air India and Others v. Nergesh Meerza and Others:
This suit was filed by the Air Hostesses working at Air India and Indian Airlines, which were fellow subsidiaries, one catering to domestic flights while the other catering to international travel. The Air Hostesses had filed the plaint against Air India Employees Service Regulations, Regulations 46 and 47, and Indian Airline Service Regulation, Regulation 12.
Under the aforementioned regulations, Air Hostesses retired from service in the following contingencies:
(a) On attaining the age of 35 years;
(b) On marriage, if it took place within four years of the service, and
(c) On first pregnancy.
While the Supreme Court directed the companies to change their regulations to bring parity in the retirement age of the two subsidiaries and also struck down the rule against first pregnancy finding it in violation of Article 14 of the Constitution, it however, upheld the restriction on marriage for the first four years of service keeping in mind the practical needs of the business as well as the society in general.
It must, however, be noted here that a violation of Section 26 of the Indian Contract Act of 1872 was not pleaded before the Apex court in this case through a partial restriction on marriage definitely existed under the service agreement.
It may also be mentioned here that the impugned regulations formerly provided for restraint on marriage throughout the service period but it was amended by the company when a suit was filed. If the change would not have occurred, the decision of the court may well have been different.
In general, however, such an agreement of service is not considered a restraint at all as it gives freedom to marry on leaving the job. On the other hand, if the agreement was between A and B and A would promise not to marry till the age of, say, 35 years in return for a job under B, it would be considered a restraint on marriage and would be void.
Rao Rani v. Gulab Rani:
A division bench of the Allahabad High Court looked into this case wherein the two parties were the widows of the same man, Ram Adhar. After the death of their common husband, a dispute had arisen at the Revenue Court regarding the matter as to who would inherit a certain zamindari land holdings.
However, the dispute was amicably settled by the two parties by signing a compromise deed wherein it was stated that both of them would inherit equally but if anyone would re-marry, the entire right over the property would shift to the other. Subsequently, Gulab Rani married again and the property came under the complete control of Rao Rani.
However, years later, Gulab Rani filed a suit to regain ownership of part of that property and, amongst other contentions, claimed that the compromise deed which was contractual in nature was void under Section 26 of the Indian Contract Act as it was in restraint of marriage.
The High Court expressed its serious doubt on whether section 26 of the Contract Act encompassed partial or indirect restraint on marriage and it was not persuaded by this argument. Chief Justice Ahmad delivered the judgment stating-
“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.”
A similar stance was also taken in A. Suryanarayana Murthi v. P. Krishna Murthy wherein co-widows had entered into an agreement to forfeit their share on deceased husband’s property if they remarried and this was held a valid contract as the agreement did not directly restrain marriage.
Section 26 of the Indian Contract Act is a widely phrased provision with only one significant exception. It does not hold void any agreement made in restraint, partial or absolute, of the marriage of a minor. This exception is present as it is against public policy in general to marry a minor and by exercising restraint on such acts, the agreement restraining such marriages can be said to further public policy instead.
Law Commission’s 13th Report, September 1958:
The Law Commission dealt extensively with the Indian Contract Act, 1872 and suggested several changes by attaching a draft bill as Appendix of the commission report wherein it proposed the substitution of several sections including Section 26 of the Act, thus, desiring to bring in a change in the law relating to agreements in restraint of marriage.
The suggested version was-
“26. Agreement in restraint of marriage void in certain cases:
(i) Every agreement in total restraint of the marriage of any person, other than a minor, is void.
(ii) An agreement in partial restraint of the marriage of any person, other than a minor, is void if the court regards it as unreasonable in the circumstances of the case.”
Thus, the Commission envisioned to restrict the purview of the section by terming void any agreement in total restraint of marriage while allowing partial restraint if the restraint so agreed upon is found to be reasonable by the court under the circumstance. This would allow several agreements which could be better for an individual as well as the society.
For instance, in the present day world, higher education often stretches far after arriving at the age of majority. Now, if the suggestion of the Commission was abided by, a parent may enter an agreement with their child to not marry till they finish their education. This would not only help in attaining full education but would also allow marriages to be held at a later stage where the parties would be more mature and the chances of a stable marriage would rise.
Another kind of restraint could have been imposed by allowing marriage only after the person has started earning their own living. This would ensure that the person is capable of bearing the responsibility of a family when marriage is entered into, thus, reducing the burden on the parents of the parties, and the society at large.
1. Law Commission of India — Report No. 13 (September 1958), Appendix 1Retrieved from SCC OnLine http://www.scconline.com/Members/SearchResult2014.aspx Accessed on 14 April 2015.
2. AIR 1920 Lah. 357
3. AIR 1981 SC 1829
4. S.K. Aggarwal, Indian Business Laws (2006), Page-127, 2nd Edition, Galgotia Publications (P) Ltd.