Agreements in Restraint of Marriage

In one line

A promise not to marry, or to marry only on someone else's terms, is not a promise the courts will enforce against anybody except a minor.

In the words a student can write in an exam: section 26 of the Indian Contract Act 1872 provides that "Every agreement in restraint of the marriage of any person, other than a minor, is void." The restraint may be total or partial and it is void either way, the only exception on the face of the section being an agreement restraining the marriage of a minor.

Why the law has this at all

Marriage is treated by the law as a matter of personal status and personal choice, and the policy behind section 26 is that the choice should not be for sale.

Two harms follow if such agreements are enforced. The first is to the person restrained, whose freedom in the most personal decision of their life becomes a bargaining chip. The second is to the public: the law has always regarded marriage as a social institution it should encourage rather than obstruct, and a system of enforceable promises not to marry works against that.

Note how wide the section is compared with section 27, its neighbour. Section 27 makes an agreement in restraint of trade void "to that extent" and then supplies an exception for the sale of goodwill. Section 26 does neither. It voids the agreement whether the restraint is total or partial, and it admits no exception for reasonableness. The drafters treated freedom of marriage as less negotiable than freedom of trade.

The provision itself

"Every agreement in restraint of the marriage of any person, other than a minor, is void."

Broken down

Four points, and the third and fourth are where the marks are.

1. The agreement must restrain marriage. It must operate on the freedom to marry: an outright promise not to marry, a promise not to marry a particular person or class of person, a promise not to marry for a stated number of years, or a penalty payable on marrying.
2. "Of any person." The restraint need not be on a party to the agreement. A promises B that C will not marry: that too is in restraint of the marriage of a person.
3. Total or partial makes no difference. The section does not say "absolutely", and the contrast with sections 27 and 28, which are drafted with qualifications, is deliberate. A promise not to marry anyone and a promise not to marry outside a particular community are both caught.
4. The exception is a minor. An agreement restraining the marriage of a minor is not void under this section. That fits the general policy of the law against child marriage, and it is why guardianship arrangements restraining a minor's marriage are unaffected.