NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW, RANCHI
SUBJECT – LAW OF CONTRACTS
AGREEMENTS IN RESTRAIN FO MARRIAGE
SUBMITTED TO: SUBMITTED BY:
MS. PRAGYA AISHWARAYA SUDHANSHU MOHAN
ASSISTANT PROFESSOR, LAW ROLL NO. – 896
B.A. LLB, 1ST SEMESTER
AGREEMENTS IN RESTRAINT OF MARRIAGE
In India, contractual relationship between at least two parties is managed by the Indian Contract Act, 1872 authorized by the British government which practiced power over the nation around then. Section 26 of the Indian Contract Act of 1872 states that every agreement in restraint of the marriage of any person, other than a minor, is void. The Contract Act was the main law to be put in India which explicitly made any such understanding, which in its impact would bring about limiting the freedom of both of the parties to wed according to their will, void. The basic idea behind this provision was to guarantee that people did not lose their right to wed according to their own will, because of some legally binding commitment or any contractual obligation went into at any point of time. Even under the English law, agreements which restrain marriage are discouraged as they are injurious to the increase in population and moral welfare of the citizens. In Lowe v. Peers where the defendant had entered a guarantee under seal to wed nobody yet the promisee on punishment of paying her 1000 Pounds in three months of wedding any other individual. The court held 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.” and found the contract to be void as it was restrictive in nature. In Hartley v. Rice , it was held that a wager between two men that one of them would not wed inside a predefined time was void as it gave one of the gatherings a financial enthusiasm for the man’s abstinence. Despite all these similarities of English law with the Indian law, there is a major difference between these two and that is English law does not find agreements which partially restrains marriage to be void.
Contract of Betrothal and Marriage brokerage agreement
An agreement in restriction of marriage is not the same as the contract of betrothal and the marriage brokerage agreement. Marriage brokerage contracts, recognized from understandings in limitation of marriage, are characterized as contracts to pay a third individual for arranging, getting or realizing a marriage. It might be noted here that business of marriage was predominant at any rate among the Hindus in Pre-free India as is noted in The Hindu Law of Marriage and Stridhan- “In the Presidency of Bombay, people arranging marriage, if fruitful, regularly get from 100 to 1,000 rupees as indicated by the trouble of the case and the conditions of the gatherings; and in Bengal, as you know, the Ghataks make vast gains by arranging marriage.” Nonetheless, however the business contracts were genuinely well known through the nation, the judiciary did not enforce such understandings. In Venkatakrishnayya v. Lakshminarayanaiv , the question was alluded to the Full Bench was whether an agreement to make an installment to the dad in light of his giving his girl in marriage is to be viewed as corrupt or contradicted to open arrangement inside the importance of section 23 of the Indian Contract Act. The Full Bench held that such an agreement was indecent and restricted to open arrangement. The Full Bench managed just with a situation where it was a guarantee made to the dad to actuate him to give the young lady in marriage. . It was held that it is the obligation of the dad to choose the most ideal kid and in the event that he is permitted to implement an agreement of the kind being referred to it would clash with his obligation which he owes to the little girl and thus such an agreement is against the public policy and illegal. Business contracts have been reproved rather than open approach as far back as by the legal all through. For example, in Gopi Tihadi v. Gokhei Panda , a division bench of the Orissa High Court commented that- “The thought or question of an agreement is legitimate except if it is explicitly taboo by law, or the Court views it as improper or contradicted to open approach. Under the English law of agreement, an agreement whereby a marriage is realized in light of cash installment is held to be unlawful as marriage ought to be free association of the couple… A marriage brokerage contract is an agreement to compensate a third individual with regards to his arranging a marriage and in that capacity is in opposition to open arrangement and can’t be authorized.”
Presently, an agreement of brokerage of marriage is essentially not quite the same as an understanding in restriction of marriage as it is an agreement fundamentally with a third individual, i.e. with a man whose claim right of marriage isn’t being influenced while he expects to impact the marriage of two others. Be that as it may, however agreements of brokerage of marriage are not quite the same as agreements in restraint of marriage, still they are void under Section 23 of the Indian Contract Act of 1872.
Further, an agreement in restriction of marriage is not same as to an agreement of betrothal.
Betrothment is a guarantee to give a young lady in marriage. It is called ‘vagdan’, or blessing by word, as recognized from blessing by genuine conveyance of the lady of the hour; and its shape is that of a guarantee by the dad or other gatekeeper of the lady for the husband, to give him the lady of the hour in marriage. After prearranged engagement, and isolated from it by a variable interim, there comes the wedding service. A pre-wedding assurance contract went into by the guardian of a lady of the hour with the husband is, in any case, not an irrevocable contract. Custom, in any case, manages that such a denial of promise must be made with a worthy motivation and a couple of hundreds of years back, such repudiation would involve serious punishments which were to be paid to the husband. However, Section 21, condition 6 of the Specific Relief Act of 1877 set out that particular execution of an assurance to be wedded contract couldn’t be upheld. Presently, a Contract of Betrothal isn’t viewed as an agreement in restraint of marriage inside the domain of section 26 of the Indian Contract Act in light of the fact that the fundamental distinction between an agreement in restriction of marriage and an agreement of assurance to be wedded lies in this, that in the last each party being controlled from wedding anybody aside from the other, the restriction for all intents and purposes works in encouragement of the marriage of both. Accordingly, a Betrothal Contract is neither in restriction of marriage nor against public policy as held in Tulshiram v. Roopchand wherein a party had cancelled from the prearranged engagement contract and had later proclaimed such an agreement was void. The offended party’s for the situation where granted pay by the court in any case, for the sum effectively spent fully expecting marriage and in addition for the psychological torment and absence of social regard that resulted.
Partial or Complete Restraint:
Further, not at all like Section 28 which makes agreements just in entire restriction of lawful procedures void, the selection of expressions of Section 26 keeps its degree somewhat broad without sending a contrast between incomplete or finish limitation of marriage, and has been deciphered to hold an understanding serving to either result as void. One might be completely limited from wedding at all or from wedding for a settled period or halfway controlled from wedding a specific individual, or a class of people, in any of the above occasions, the understanding is void. Segment 26 does not separate in the middle of total restriction and fractional limitation upon the opportunity of marriage. This has been entirely trailed by the legal in different cases.
In Abbas Khan and Another v. Nur Kha before the Lahore High Court, a Muslim lady had hitched a man without the assent of her closest male relative. It was fought by the family that being a part of the Pathan people group of ilaqa Makhad, the husband who wedded the lady without the assent of her closest male relative must pay to the man a sum called ‘rogha’ or lady of the hour cost under standard muhammadan law. The lower courts had determined that such training existed and had enabled the offended party to look for installment from the groom. In any case, a division seat of judges at the High Court on second interest held that such an installment of cash for marriage to a grown-up lady was not enforceable by law as it was shameless and contradicted to public policy. The judiciary has since pursued this translation and subsequently, any agreement in restriction of marriage, regardless of whether absolute or partial, is held void in India. This is as opposed to English Law which takes into account understandings in halfway restriction of marriage. Be that as it may, an appearing takeoff from this translation was found in Air India and Others v. Nergesh Meerza and Others . This suit was documented by the Air Hostesses working at Air India and Indian Airlines. The Air Hostesses had recorded the plaint against Air India Employees Service Regulations, Regulations 46 and 47, and Indian Airline Service Regulation, Regulation 12.
Under the previously mentioned controls, Air Hostesses resigned from administration in the accompanying possibilities:
(a) On achieving the age of 35 years;
(b) On marriage in the event that it occurred inside four years of the benefit; and
(c) On first pregnancy.
While the Supreme Court guided the organizations to change their controls to get equality the retirement age of the two backups and furthermore struck down the govern against first pregnancy, it however, maintained the limitation on marriage for the initial four years of administration remembering the needs of the business and additionally the general public by and large. It must, however, 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 however an incomplete confinement on marriage certainly existed under the administration agreement. It might likewise be made reference to here that the denounced directions in the past given to restriction on marriage all through the administration time frame yet it was revised by the organization when a suit was recorded. On the off chance that the change would not have happened, the choice of the court may well have been extraordinary. By and large, in any case, such an understanding of administration isn’t viewed as a restriction at all as it offers opportunity to wed on leaving the activity. Then again, if the understanding was among An and B and A would guarantee not to wed till the period of, say, 35 years as an end-result of work under B, it would be viewed as a limitation on marriage and would be void.
In Rao Rani v. Gulab Rani , a division seat of the Allahabad High Court investigated this case wherein the two parties were the dowagers of a similar man, Ram Adhar. After the passing of their basic spouse, a debate had emerged at the Revenue Court viewing the issue regarding who might acquire a specific zamindari arrive property. Nonetheless, the debate was agreeably settled by the two parties by marking a trade off deed wherein it was expressed that both of them would acquire similarly however on the off chance that anybody would re-marry, the whole directly over the property would move to the next. In this way, Gulab Rani wedded again and the property went under the total control of Rao Rani. Nonetheless, years after the fact, Gulab Rani documented a suit to recapture responsibility of that property and, among different conflicts, asserted that the bargain deed which was legally binding in nature was void under Section 26 of the Indian Contract Act as it was in restriction of marriage. The High Court communicated its genuine uncertainty on whether segment 26 of the Contract Act incorporated incomplete or circuitous restriction on marriage and it was not influenced by this contention. Chief Justice Ahmad conveyed the judgment expressing “Every one of that was given was that if a dowager chose to re-wed, she would be denied of her rights given to her by the bargain. As it were, no immediate disallowance to re-wed was forced by the trade off and the bargain was touched base at with the end goal to safeguard the family properties and to guarantee their legitimate management.”
Area 26 of the Indian Contract Act is a broadly expressed arrangement with just a single noteworthy special case. It doesn’t hold void any agreement made in restriction, complete or partial, of the marriage of a minor. This special case is available as it is against public policy all in all to wed a minor and by practicing a limitation on such acts, the agreement controlling such relational unions can be said to promote open approach.
Law Commission’s thirteenth Report, September 1958:
The Law Commission managed widely with the Indian Contract Act, 1872 and recommended a few changes by joining a draft bill as Appendix of the commission report wherein it proposed the substitution of a few sections including Section 26 of the Act, in this way, wanting to get an adjustment in the law identifying with understandings in limitation of marriage. The proposed adaptation was-
“26. Agreement in limitation of marriage void in specific cases:
(I) Every agreement in complete limitation of the marriage of any individual, other than a minor, is void.
(ii) An agreement in halfway limitation of the marriage of any individual, other than a minor, is void if the court views it as irrational in the conditions of the case.”
Along these lines, the Commission imagined to limit the domain of the area by naming void any agreement in complete restriction of marriage while permitting partial limitation if the limitation so settled upon is observed to be sensible by the court under the situation. This would permit a few agreements which could be better for a person and in addition the general public. For example, in the present day world, advanced education frequently extends far subsequent to touching base at the period of greater part. Presently, if the proposal of the Commission was submitted to, a parent may enter into a contract with their youngster to not wed till they complete their education. This would help in accomplishing full education, as well as enable relational unions to be held at a later stage where the parties would be more develop and the odds of a steady marriage would rise.
Another sort of restriction could have been forced by permitting marriage simply after the individual has begun gaining their own living. This would guarantee that the individual is fit for bearing the obligation of a family when marriage is gone into, thus, lessening the weight on the guardians of the parties, and the general public on the loose.