Agreements in Restraint of Marriage
Chapter Forty
Syllabus topic 2.6, "Void Agreements"
Pages 193 to 196 of 462
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.
- 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.
- "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.
- 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.
- 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.
Agreements in Restraint of Marriage
The forms a restraint takes
Direct and indirect restraints are both within the section, and problem questions usually use an indirect one.
- A direct promise not to marry at all, or not before a certain age or date.
- A penalty on marriage: a promise to pay a sum, or to forfeit property already given, if the person marries. The obligation is not framed as a prohibition, but its effect is to penalise marriage, so it is a restraint.
- A promise to marry only with another's consent, or only a person of the other party's choosing.
- A promise not to marry a particular person, which is a partial restraint and equally void.
What is NOT a restraint of marriage
Three categories that regularly appear as distractors.
- A promise to marry somebody. That is not a restraint at all; it is the opposite. Whether it is enforceable is a separate question governed by ordinary contract principles and by personal law.
- A provision for maintenance until marriage, or an allowance that ceases on marriage. Where the true purpose is to provide support that is no longer needed after marriage, rather than to deter marriage, it is not a restraint. The line is one of substance: is the payment conditioned on not marrying, or merely measured by the period before marriage?
- A restraint on the remarriage of a person, where the personal law or a settlement so provides, has been treated differently in some contexts, and any such question turns on the personal law rather than on section 26 alone.
A worked example
Priti's uncle makes four different arrangements. Assess each under section 26.
- He settles ten lakh rupees on Priti on condition that she never marries. A total restraint on the marriage of a person other than a minor. Void. The condition cannot be enforced, and section 26 strikes at the agreement in restraint.
- He agrees to pay Priti fifty thousand rupees a year, the payments to stop and the whole sum already paid to be refundable if she marries before thirty. A partial restraint, and a penalty on marriage. Section 26 makes no distinction between total and partial, so it is void.
- He agrees to pay Priti fifty thousand rupees a year for her maintenance until she marries. On its face this is not a restraint. The payment is measured by the period during which she is unmarried and presumably in need of support; it does not penalise marriage or purchase abstention from it. It stands, unless on the facts the true purpose was to deter her from marrying.
- He agrees with Priti's father that Priti, who is sixteen, shall not marry before she is eighteen. Priti is a minor, so the express exception in section 26 applies and the agreement is not void under this section.
Agreements in Restraint of Marriage
Now change the third example: the uncle agrees to pay her the allowance only so long as she does not marry, and to pay her nothing at all if she does, and additionally to recover everything already paid. The refund element makes it a penalty on marriage, and it becomes a restraint. Void.
Section 26 compared with its neighbours
| Restraint of marriage, s.26 | Restraint of trade, s.27 | Restraint of legal proceedings, s.28 | |
|---|---|---|---|
| Total restraint | void | void | void |
| Partial restraint | void | void, "to that extent" | void |
| Reasonableness a defence | no | no, except within the goodwill exception | no |
| Statutory exception | agreement restraining a minor's marriage | sale of goodwill, within reasonable local limits | three exceptions, all about arbitration and bank guarantees |
| Effect | the agreement is void | void to that extent, so severable | void to the extent it offends |
The comparison is worth remembering because section 26 is the strictest of the three: it has no reasonableness test and no severance language.
What it does NOT mean
"Only a total restraint is void." Section 26 does not use the word "absolutely", and a partial restraint is equally void. This is the commonest error, imported from section 27's English background.
"A reasonable restraint is valid." There is no reasonableness test in section 26.
"A promise to marry is void under section 26." It is not a restraint on marriage at all.
"An allowance that stops on marriage is a restraint." Not necessarily. The question is whether it penalises marriage or merely provides support for the period before it.
"A restraint on a minor's marriage is valid because minors cannot contract." That is the wrong reason. The agreement in question is between other parties, and section 26's own words carve out the marriage of a minor.
Quick revision
- s.26: every agreement in restraint of the marriage of any person, other than a minor, is void.
- Total or partial makes no difference, and there is no reasonableness test. Contrast s.27, which voids "to that extent" and has the goodwill exception.
- Restraints include a direct promise not to marry, a penalty or forfeiture on marrying, a promise to marry only with consent or only a chosen person, and a promise not to marry a particular person.
- "Of any person": the person restrained need not be a party to the agreement.
- Not restraints: a promise to marry; and maintenance until marriage, where the purpose is support rather than deterrence.
- The only exception on the face of the section is a minor.
Agreements in Restraint of Marriage
Test yourself
1. State section 26 and identify its exception. Every agreement in restraint of the marriage of any person, other than a minor, is void. The only exception appearing in the section is an agreement restraining the marriage of a minor, which is not void under it.
2. Is a partial restraint of marriage valid? No. Unlike section 27, section 26 contains no words limiting it to absolute restraints and no reasonableness test, so a promise not to marry a particular person, or not to marry before a stated age, is as void as a promise never to marry at all.
3. A settlement provides that a woman shall forfeit an annuity if she marries. Is it enforceable? No. The forfeiture penalises marriage, and a penalty on marrying is a restraint in substance even though it is not framed as a prohibition. Section 26 makes it void, the person restrained not being a minor.
4. Is an allowance payable until marriage a restraint on marriage? Ordinarily not. Where the payment is a provision for maintenance measured by the period during which the person is unmarried, it supports rather than deters marriage. It becomes a restraint if its real purpose or effect is to penalise marrying, for example by requiring repayment of everything already received.
5. Compare sections 26 and 27 on partial restraints. Section 27 declares an agreement restraining a lawful profession, trade or business void "to that extent", which allows severance, and it provides an express exception for the sale of goodwill within reasonable local limits. Section 26 has neither: it voids every agreement in restraint of marriage, total or partial, with no reasonableness test and no exception other than the marriage of a minor.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.