SVKM’S

NMIMS SCHOOL OF LAW

LAW OF CONTRACTS RESEARCH PAPER ON

AGREEMENT IN RESTRAINT OF MARRIAGE
-SECTION 26

SUBMITTED TO: SUBMITTED BY:

PROF. MEGHA OJHA SHRISHTI AGNIHOTRI
SAP ID: 81022100449
ROLL NO.- A222
BBA LLB(HONS.)

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ACKNOWLEDGEMENT

This paper and the research behind it would have never been completed without the love and
support of some people, I would like to acknowledge them for the same.

First I would like to thank my research supervisor Prof. Megha Ojha for her unwavering
support throughout the research. It is her exceptional enthusiasm, knowledge and sincerity
which helped as a great motivation to successfully complete this research paper. She has taught
me the correct approach to carry out the research work, she has undoubtedly been the pathway
that led to the successful completion of this research paper. I am extremely thankful and
grateful to her for everything that she has offered me.

I would also like to thank my parents and friends who were always there for me whenever
required, they have always been my pillar of strength during my difficult times.

I would like to express my deep gratitude to everybody who has been a catalyst for the
successful completion of this research paper.

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DECLARATION

I, Shrishti Agnihotri, solemnly declare that the research work on “AGREEMENT IN

RESTRAINT OF MARRIAGE- SECTION 26” is based on my own work carried out under
the guidance of Prof. Megha Ojha.

“I assert the statements made and conclusions drawn are an outcome of my research
work. I further certify that

I. The work contained in the research paper is original and has been done by me
under the general supervision of my supervisor.

II. The work has not been submitted to any other institution for any other degree /
diploma / certificate in this institution or any other university of India and abroad.

III. I have followed the guidelines provided by the university in writing the report.

IV. Whenever I have used materials (data, theoretical analysis and text) from other
sources, I have given due credit to them in the text of the research paper and
giving their details in the references.”

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TABLE OF CONTENT

1. ABSTRACT.......................................................................................................... 5

2. INTRODUCTION..................................................................................................5-6
a) Objectives of Research
b) Hypothesis
c) Research question
d) Research methodology

3. RESEARCH ANALYSIS WITH CASE LAWS...................................................7-13

4. CONCLUSION AND SUGGESTION..................................................................14

5. REFERENCES…..................................................................................................14

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ABSTRACT

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INTRODUCTION

“The right to marriage goes under the domain of Article 21, which is viewed as the heart and soul
of the Indian Constitution qua it ensures the right to life and individual freedom to 'residents' as
well as 'non-residents' of India. Concerning this Article, Section 26 of Indian Contract Act gives
that each understanding in restriction of the marriage of any individual, other than a minor, is void.
In this manner, it supports an individual's all in all correct to partake in the opportunity of marriage
by delegitimizing the arrangements which block that conceded opportunity. Consequently, the
understanding which restricts an individual from picking his/her soul mate or to get hitched to an
individual of his/her own desire is void, pro tanto. However, it is relevant to take note of that the
arrangement in the limitation of marriage is a post separated from the agreement of pledge
arrangements and prenuptial arrangements.”
Notwithstanding, the Hon'ble Supreme Court of India has never neglected to assert that any
agreement that has marriage as its article is invalid and void as it is in opposition to public
approach. Thus, such arrangements are not lawfully valid in India.

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“Compliant with Section 26 of Indian Contract Act, an understanding that suggests hindrances on
marriage either entirely or somewhat for example terms of which recommends not to wed specific
individuals of the predefined class or local area or to stay unmarried till a foreordained period is
void. However, these arrangements look like to be legitimate as it satisfies every one of the
fundamentals expected for a substantial agreement, it is explicitly pronounced void as it considered
as the injury to the ethical government assistance of individuals.”

a) Objectives of research:
➢To understand the position of Agreements in Restraint of Marriage in Common Law.

➢To understand the position of Agreements in Restraint of Marriage in Indian Law.

➢To understand the exceptions to Agreements in Restraint of Marriage.

b) Hypothesis:
H0: “The idea behind the provision is to not snatch away the personal right of every individual to
marry someone of their own choice.”

c) Research question:
➢ Is the provision of Agreements in Restraint of Marriage really necessary?

d) Research methodology:
“Secondary data from various sources was utilized in the study, which was distinct and calculated.
The information was accumulated from an assortment of sources, including data sets and
periodicals. Fundamental exploration was performed on the Common law and Indian law.
Alongside state and public instruments, different papers, websites, and other historical
underpinnings.”

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RESEARCH ANALYSIS

Position of Agreements in restraint of Marriage in Common Law

“Under English Law, arrangements which control marriage are deterred as they are harmful to the
expansion in populace and the ethical government assistance of the residents. Back in 1768, a point
of reference was set by the Court of King's Bench in Lowe v. Peers where the respondent had
entered a guarantee under seal to wed nobody however the promise, on punishment of paying her
1000 pounds in something like three months of wedding any other person.”

The Court commented-

“that it was anything but a guarantee to wed her, yet not to wed any other person, but she was
under no commitment to wed him.” The Court found the agreement void as it was simply
prohibitive and conveyed no guarantee to continue either side.

In Hartley v. Rice1,”it was held that a bet between two men that one of them wouldn't wed inside a
predetermined time was void as it gave one of the gatherings a financial interest in the man's
chastity.”

“Further, under English Law brokage agreements or guarantees made on the thought of securing or
achieving marriage, are held unlawful on a few social grounds.”

An agreement whose item is to control or keep a party from wedding, or an obstruction to

marriage in that far makes any individual dubious regardless of whether he might wed, is against
public strategy. English Law, in any case, doesn't view arrangements what to some extent limit
marriage as void and in this, it heads out in different directions from Indian regulation as expressed
in the Indian Contracts Act, 1872.”

1
Hartley v. Rice, 123 Or. 237 | Casetext Search + Citator Casetext.com, https://casetext.com/case/hartley-
v-rice-et-ux (last visited May 23, 2022)

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Be that as it may, the Law Commission had sent an idea to the public authority many years prior to
correct the Act and substitute the pertinent segment. This has been examined later.
Position of Agreements in Restraint of Marriage in Indian Law

“In India, legally binding connections between at least two gatherings are essentially managed by
the Indian Contract Act, 1872, authorized by the British magnificent government which practiced
command throughout the country around then. Area 26 of the Indian Contract Act of 1872 states
that each arrangement in restriction of marriage, with the exception of those in limitation of
marriage of minors, is void.”

The Contract Act was the first regulation to be set in Quite a while which explicitly pursued any
such understanding, which in its impact would bring about controlling the freedom of both of the
gatherings to wed according to their desire, void. The major thought behind this arrangement was
to guarantee that the residents didn't lose their entitlement to wed according to their decision,
which is a fundamental piece of a common society having both individual and social importance,
because of some legally binding commitment went into anytime of time.

An understanding in restriction of marriage is not the same as both a marriage financier

arrangement as well as from an agreement of pledge.

“Marriage business contracts, recognized from arrangements in limitation of marriage, are

characterized as agreements to pay a third individual for arranging, obtaining or achieving a
marriage. It very well might be noted here that financier of marriage was common basically among
the Hindus in Pre-autonomous India as is noted in The Hindu Law of Marriage and Stridhan.”

Partial or Complete Restraint:

Further, not at all like Section 28 which settles on agreements just in complete limitation of legal
procedures void, the selection of expressions of Section 26 keeps its extension somewhat broad
without sending a distinction between partial or complete restriction of marriage and has been
deciphered to hold an agreement serving to one or the other outcome as void.

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One might be totally retrained from marrying by any stretch of the imagination or from wedding
for a proper period or to some extent limited from wedding a specific individual, or a class of
people, in any of the above occasions, the understanding is void. Segment 26 doesn't in the middle
of between outright limitation and halfway restriction upon the opportunity of marriage. This has
been totally trailed by the legal executive in different cases.

Abbas Khan and Another v. Nur Khan2:

For this case, under the steady gaze of the Lahore High Court, a Muslim lady had married a man
without the assent of her closest male family member. It was battled by the family that being
important for the Pathan people group of ilaqa Makhad, the husband who wedded the lady without
the assent of her closest male relative should pay to the man a sum called 'rogha' or lady cost under
standard Muhammadan law.

“The lower courts had discovered that such a training existed and had permitted the offended party
to look for installment from the husband to be. In any case, a division seat of judges at the High
Court on the subsequent allure held that such installment of cash for union with an adult woman
was not enforceable by regulation as it was unethical and gone against 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.”

In this way, despite the fact that the custom just forced a fractional limitation on marriage subject
to installment of a specific sum, it was tracked down in conflict to Section 26 of the Contract Act.

2
Abbas Khan And Anr. vs Muhammad Ali on 17 November, 1933 Indiankanoon.org,
https://indiankanoon.org/doc/1505414/ (last visited May 20, 2022)

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“The judiciary has since followed this understanding and hence, any arrangement in restraint of
marriage, whether complete or partial, is held void in India. This is rather than English Law which
considers agreements partial restraint of marriage.”

“Notwithstanding, an appearing takeoff from this translation was found in the issue of Air India
and Others v. Nergesh Meerza and Others3:

“This suit was recorded by the Air Hostesses working at Air India and Indian Airlines, which were
individual auxiliaries, one taking special care of domestic flights while the other taking care of
global travel. The Air Hostesses had documented the plaint against Air India Employees Service
Regulations, Regulations 46 and 47, and Indian Airline Service Regulation, Regulation 12.”

“Under the previously mentioned guidelines, Air Hostesses resigned from administration in the
accompanying possibilities:
(a) On accomplishing the age of 35 years;
(b) On marriage, assuming it occurred in no less than four years of the service, and
(c) On first pregnancy.”

“While the Supreme Court guided the organizations to change their guidelines to get equality the
in retirement age of the two auxiliaries and furthermore struck down the standard against first
pregnancy tracking down it disregarding Article 14 of the Constitution, it notwithstanding,
maintained the restraint on marriage for the initial four years of administration remembering the
viable requirements of the business as well as the general public overall.”

“It must, nonetheless, be noted here that an infringement of Section 26 of the Indian Contract Act
of 1872 was not argued under the steady gaze of the Apex court for this situation through a
fractional limitation on marriage certainly existed under the help arrangement.”

3
Air India Etc. Etc vs Nergesh Meerza & Ors. Etc. Etc on 28 August, 1981 Indiankanoon.org,
https://indiankanoon.org/doc/1903603/ (last visited May 25, 2022)

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It might likewise be referenced here that the decried guidelines previously accommodated
limitation on marriage all through the help period however it was corrected by the organization
when a suit was recorded. In the event that the change could not have possibly happened, the
choice of the court might well have been unique.

As a rule, nonetheless, such an understanding of administration isn't viewed as a restriction by any

means as it gives opportunity to wed on leaving the work. Then again, in the event that the
arrangement was among A and B and A would vow not to wed till the period of, say, 35 years as a
trade-off for a task under B, it would be viewed as a restriction on marriage and would be void.”

Rao Rani v. Gulab Rani4:

“A division seat of the Allahabad High Court investigated this case wherein the two gatherings
were the widows of a similar man, Ram Adhar. After the passing of their normal spouse, a
question had emerged at the Revenue Court viewing the matter with respect to who might acquire
a certain zamindari land’s possession.”

Notwithstanding, the question was genially settled by the two gatherings by marking a tradeoff
deed wherein it was expressed that the two of them would acquire similarly yet assuming that
anybody would re-wed, the whole directly over the property would move to the next.
Consequently, Gulab Rani wedded once more and the property went under the unlimited oversight
of Rao Rani.

Notwithstanding, years after the fact, Gulab Rani recorded a suit to recover responsibility for of
that property and, among different conflicts, guaranteed that the tradeoff deed which was legally
binding in nature was void under Section 26 of the Indian Contract Act as it was in limitation of
marriage.

4
Mt. Raj Rani vs Gulab And Anr. on 21 March, 1928 Indiankanoon.org,
https://indiankanoon.org/doc/1527858/ (last visited May 14, 2022)

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The High Court communicated it’s not kidding uncertainty on whether segment 26 of the Contract
Act enveloped incomplete or backhanded restriction on marriage and it was not convinced by this
contention.
Boss Justice Ahmad conveyed the judgment expressing-
“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 comparable position was likewise taken in A. Suryanarayana Murthi v. P. Krishna Murthy5

wherein co-widows had gone into a consent to relinquish their portion on perished spouse's
property in the event that they remarried and this was held a substantial agreement as the
understanding didn't straightforwardly limit marriage.

Exception to Agreements in Restraint of Marriage

“Segment 26 of the Indian Contract Act is a broadly expressed arrangement with only one critical
special case. It doesn't hold void any understanding made in limitation, fractional or outright, of
the marriage of a minor. This special case is available for what it's worth against public strategy
overall to wed a minor and by practicing restriction on such demonstrations, the understanding
controlling such relationships can be said to additional public strategy all things being equal.”

Regulation Commission's thirteenth Report, September 1958:

“The Law Commission managed the Indian Contract Act, 1872 and recommended a few changes
by connecting a draft bill as Appendix of the commission report wherein it proposed the
replacement of a few segments including Section 26 of the Act, hence, craving to get an
adjustment of the law connecting with arrangements in limitation of marriage.”

5
Agreement In Restraint Of Marriage With Example | busta.at busta.at,
https://www.busta.at/index.html%3Fp=74494.html (last visited May 23, 2022)

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The proposed form was-

"26. Understanding in restriction of marriage void in specific cases:

(I) Every understanding in all out restriction of the marriage of any individual, other than a minor,
is void.

(ii) An understanding in fractional restriction of the marriage of any individual, other than a minor,
is void in the event that the court sees it as nonsensical in the conditions of the case."

“Accordingly, the Commission imagined to limit the domain of the segment by naming void any
arrangement in absolute restriction of marriage while permitting fractional restriction assuming the
restriction so settled upon is viewed as sensible by the court under the situation. This would permit
a few arrangements which could be better for a person as well as the general public.”

For example, in the current day world, advanced education frequently extends far subsequent to
showing up at the period of greater part. Presently, in the event that the idea of the Commission
was maintained, a parent might enter a concurrence with their youngster to not wed till they finish
their schooling. This wouldn't just assistance in achieving full training yet would likewise permit
union with be held at a later stage where the gatherings would be more developed and the
possibilities of a steady marriage would rise.

One more sort of restriction might have been forced by permitting marriage solely after the
individual has begun making money. This would guarantee that the individual is fit for bearing the
obligation of a family when marriage is placed into, consequently, lessening the weight on the
guardians of the gatherings, and the general public overall.

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CONCLUSION

Reiteratively, according to the plan of Section 26 of the Indian Contract Act, as a rule, all the
understanding in restriction of marriage is void whether or not it forces halfway or outright
constraints on marriage that challenges the crucial right conceded under Article 21 of the Indian
constitution. The main exemption that has been referenced in the actual Section is that the
arrangement in restriction of minor marriage; it is substantial as the minor relationships are against
the aggregate social strategy and public interest.

BIBLIOGRAPHY

Lawcolumn.in. 2022. [online] Available at: <https://www.lawcolumn.in/agreements-in-restraint-of-marriage-

and-restraint-of-trade/#:~:text=Section%2026%20of%20the%20Indian,of%20his%20choice%20is%20void.>
[Accessed 16 May 2022].

Agreements In Restraint Of Marriage - Academike Academike,

https://www.lawctopus.com/academike/agreements-restraint-marriage/ (last visited May 15, 2022)

Section 26 in The Indian Contract Act, 1872 Indiankanoon.org, https://indiankanoon.org/doc/1269245/ (last

visited May 12, 2022)

Agreement In Restraint Of Marriage - Section 26 of Indian Contract Act Law Corner,

https://lawcorner.in/agreement-in-restraint-of-marriage-section-26-of-indian-contract-act/ (last visited May 5,
2022)

Agreement In Restraint Of Marriage With Example | busta.at busta.at,

https://www.busta.at/index.html%3Fp=74494.html (last visited May 23, 2022)

Mt. Raj Rani vs Gulab And Anr. on 21 March, 1928 Indiankanoon.org,

https://indiankanoon.org/doc/1527858/ (last visited May 14, 2022)

Air India Etc. Etc vs Nergesh Meerza & Ors. Etc. Etc on 28 August, 1981 Indiankanoon.org,
https://indiankanoon.org/doc/1903603/ (last visited May 25, 2022)

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