Agreement in Restraint of Marriage

RESTRAINT OF MARRIAGE (DEFINITION)

Restraint of marriage refers to a condition that nullifies the grant to which it applies if the
grantee marries or remarries. Restraints of marriage are usually void if they are general or
unlimited in scope. Contracts in restraint of marriage are void, upon grounds of public policy.
If a man and woman reciprocally agree to marry each other, the contract is undoubtedly good,
but by the terms of the contract, if one of the parties be restrained from marrying at all, or
from marrying anybody, unless it be a particular person, and there be no corresponding
obligation on that person, the contract is considered as injurious to the general interests of
society, and therefore void. A condition in general restraint of marriage is void and a
condition in partial restraint of marriage is valid.

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, precedent
was set by the Court of Kings 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 remarking-
that it was not a promise to marry her, but not to marry any one else, and yet she was under
no obligation to marry him.
found the contract void as it was purely restrictive and carried no promise to marry 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 mans
celibacy.
Further, under English Law brocage contracts or promises made on the consideration of
procuring or bringing about a marriage, are held illegal on several social grounds.i
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.ii 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 is 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
marriageiii
However, though the brokerage contracts were fairly popular through the country, the
judiciary did not enforce such agreements.
In Venkatakrishnayya v. Lakshminarayanaiv, 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 S.
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 is opposed to public policy and illegal.v
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 a marriage is brought about in consideration of money payment
is held to be illegal as marriage should be free union of the coupleA 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.vi
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, though 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 gift by actual delivery of the bride; and its form is that of a promise by the
father or other guardian of the bride in favour 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.vii
Thus, a Betrothal Contract is neither in restraint of marriage nor against public policy as held
in Tulshiram v. Roopchandviii wherein a party had rescinded from the betrothal contract and
had later claimed such a contract was void. The plaintiffs 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.
Lowe v. Peers (1768) 4 Burr. 2225
Another example of contracts, illegal because in contravention of the policy of the law, is
afforded by those cases in which contracts in general restraint of marriage have been held
void (c). Thus, in Lowe v. Peers (d), a defendant entered into the following covenant: - "I do
hereby promise Mrs. Catherine Lowe that I will not marry any person besides herself. If I do,
I agree to pay her 1000 within three months after I shall marry anybody else." The Court of
King's Bench held this contract void, remarking, "that it was not a promise to marry her, but
not to marry any one else, and yet she was under no obligation to marry him." This case was
affirmed in error (e).

(b) Jones v. Lees, 26 L. J. (Ex.) 9; 1H.&N. 189. See Hilton v. Eckersley, 24 L. J. (Q. B.) 353,
25 L. J. (Q. B.) 199, in Ex. Ch.;6E.& B. (88 E. C. L R.) 47.

(c) See Newton v. Marsden, 31 L. J. (Ch.) 690; Robinson v. Ommaney, 21 Ch. Div. 780; 23
lb. 285; 51 L. J. (Ch.) 894; 52 lb. 440.
(d) 4 Burr. 2225. (e) 4 Burr. 2234.

So, where a lady gave a bond conditioned not to marry, the Court of Chancery ordered it to be
delivered up (f).

On the subject of marriage I may further mention, that a deed tending to the future separation
of husband and wife is void on grounds of public policy (g); although a deed providing a fund
for the lady's support on the occasion of an immediate separation is not so (h). And the
Chancery Division will exercise its jurisdiction in giving effect to arrangements of property
contained in articles of separation, such separation having previously taken place (i), and will
restrain the husband from doing any act contrary to his covenant in such articles not to molest
his wife (k). And even where the parties, after executing a lawful deed of separation, have
been reconciled and have cohabited, the deed is not necessarily annulled thereby (I); but the
performance of covenants therein will be compelled if it appear that such reconciliation was
not intended to annul them (m). The distinction between the two cases of future and existing
separation is obvious. The deed, in the former case, contemplates and facilitates that which
the law considers an evil-namely, the separation of husband and wife; in the latter case, the
evil is inevitable, and the effect of the deed is but to save the wife from destitution.

(f) Baker v. White, 2 Vern. 215.

(g) Hindley v. Marquis of Westmeath, 6 B. & C. (13 E. C. L. R.) 200.

(A) Jee v. Thurlow, 2 B & C. (9 E. C. L. E.) 547; Jones v. Waite, in Dom. Proc. 4 M. & Gr.
(43 E. C. L. R.) 1104.

(i) Wilson v. Wilson, 1 H. L. Cas. 538; Gibbs v. Harding, L. R. 8 Eq. 490, 5 Ch. 336; S. C. 38
L. J. (Ch.) 604, 39 lb. 374; Besant v. Wood, 12 Ch. Div. 605.

(k) Sanders v. Rodway, 22 L. J. (Ch.) 230.

(I) Wilson v. Mushett, 3 B. & Ad. (23 E. C. L. R.) 743; Randle v. Gould, 27 L. J. (Q. B.) 57; 8
E. & B. (92 E. C. L. R.) 457.

(m) Webster v. Webster, 22 L. J. (Ch.) 837. 244

Almost the converse of these cases of deeds of separation are what are called Marriage
brocage contracts, that is, where a man has agreed, in consideration of money, to bring about
a marriage. These are all void as against public policy, the law considering that unions so
brought about are unlikely to be happy ones. This class of cases is founded upon a case in the
House of Peers (n),1 in which Thomas Thinne gave an obligation of 1000 to Mrs. Potter,
conditioned to pay her 500 within three months after he should be married to Lady Ogle, "a
widow," the reporter says, "of great fortune and honour, for she was the daughter and heir of
Jocelyn Percy, Earl of Northumberland." The Master of the Rolls decreed this bond to be
void; the Lord Keeper reversed the decree; whereupon there was an appeal to the House of
Peers; and, upon hearing the cause there, all the Lords but three or four were of opinion that
all such contracts are of dangerous consequences, and ought not to be allowed; and they
reversed the decree of dismissal made by the Lord Keeper, and decreed the obligation to be
void.

Another, and an extensive class of cases is that in which the contract has a tendency to
obstruct the course of public justice. These must be left for the next Lecture.

(n) Hall v. Potter, 3 Lev. 411.

1.) Hall v. Potter (which is also reported in 1 Eq. Ca. Ab. 89, and 3 P. Wms. 392, and Show. P.
C. 76) has been followed by a numerous class of cases : Cole v. Gibson, 1 Ves. 503; Roberts
v. Roberts, 3 P. Wms. 74, see Mr. Cox's note; Smith v. Pruning, 2 Vern. 392; Duke of
Hamilton v. Lord Mohun, lb. 652; Boynton v. Hubbard, 7 Mass. 112; and Lord Redesdale,
when Chancellor of Ireland, declared void a bond given to the obligee as a remuneration for
having assisted the elopement of the obligor without the consent of the wife's friends, though
the bond was given voluntarily after the marriage, and without any previous agreement
therefor: Williamson v. Gihon, 2 Seh. & Lef. 362. The civil law, however, it is well known, in
its approval and encouragement of the institution of marriage, allowed the proxenelce, or
match-makers, to stipulate, within limits, for a reward for promoting marriage

Marriage brokage
Marriage brokage concerns a contract whereby A promises to procure a marriage for B.
the professional matchmaker cannot make an enforceable contract for his or her
services. The rule is not limited to contracts to procure marriage with a particular
person. Thus, in Hermann v Charlesworth, Miss H entered into an agreement under
which, if the defendant introduced her to someone whom she married, Miss H would
have to pay the defendant 250. She paid the deposit which, after several unsuccessful
introductions, she sought to recover. The Court of Appeal held that the contract was
illegal as being contrary to public policy. It is difficult to see, however, why such contracts
are any more harmful than those between dating or introduction agencies and their
clients, which have never been regarded as contrary to public policy. Such contracts do
not, of course, depend on marriage between those introduced.

Spiers v. Hunt :-
Allan and Vera was in love and Allan had presented a gold ring and a bouquet of roses as a
sign of their engagement which was accepted by Vera, thus, there had been a good
consideration between them for a valid engagement. The parties to the engagement should
remain single. In spiers v Hunt, the defendant promised to marry the plaintiff upon death of
his wife, however, after 8 years, the defendant refused to marry the plaintiff who eventually
sued the defendant for breach of promise. The Court decided in favour of the defendant
because the promise was illegal due to the incapacity of the defendant being a married man
not a single person as required. Further, Allan and Vera should have attained the minimum
age for engagement. Under s.11 of the Contract Act 1950, only a person of age of majority
may enter into contract and s.4 of the Age of Majority Act 1971provides that the age of
majority in Malaysia is 18. Be that as it may, the High Court in Rajeswari v
Balakrishnan held that a minor can validly enter into a contract of marriage. Thus, Vera being
17 does not invalidate her engagement per say.

Can Vera lawful marry Allan? Section 10 of the Law Reform (Marriage & Divorce)
Act 1976 (LRA) provides that Allan should be 18 years of age and Vera, the female party
should be above the age of 16. Nevertheless, s.12 provides that those parties to the marriage
who is below the age of 21 should bet a written consent from the respective parent. In the
event, Veras parent had unreasonably withheld his or her consent, she can petition the High
Court under s.12(2), whereby the High Court upon hearing, may grant a consent on behalf on
the parent. In addition, Vera, since she is below the age of 18, she should get a licence from
Chief Minister [s.21(2)].

Allan and Vera both have freely consented to the marriage [s.22(6)] without any
duress and that they should not be in prohibited relationship (s.11) and that if Allan and Vera
are Hindu and wish to marry according to Hindu religious rite and tradition, then even if their
relationship stands as uncle and niece will not be against the law of marry.

Rao Rani v. Gulab Rani AIR 1942

An agreement between two co-widows that provided that either would forfeit her share in
the properties upon remarriage was upheld as valid.

1. This is a second appeal from a decision of the learned District Judge of Jhansi, reversing
the decision of the trial Court which had given the plaintiff mortgagor a decree for possession
of an occupancy holding on payment of a sum of Rs. 219. The parties to the suit had executed
a deed which purported to be a mortgage by conditional sale of an occupancy holding in
1897, that the present suit was framed as one to redeem the mortgage. The mortgage was
clearly an invalid one and both the Courts below have held it to he so. The only question
raised in second appeal is whether the plaintiff mortgagor is entitled to recover possession.

2. The lower appellate Court has held that in case of an illegal mortgage the transaction
should not be recognized in any way by the Courts. The trial Court relied on the decision in
the case of Ramzan v. Bhukhal Rai [1918] 16 A.L.J. 747, in which the facts appear to have
been precisely similar to those in the present case and it was decided that the mortgagor could
regain possession on payment of the amount advanced to him on the illegal mortgage. The
learned Judge has referred to a later decision by a single Judge of this Court in the case
of Daya Ram v. ThakuriA.I.R. 1924 All. 668. The facts of that case, however, can clearly be
differentiated as the Judge has recognized, for the mortgagee had been dispossessed by a third
party and sued his mortgagor for recovery of the mortgage money. The mortgage itself being
illegal the Court refused to enforce the illegal contract. In the present case there is no
question of enforcing an illegal contract. The contract being illegal must be ignored, but the
plaintiff as the owner of the occupancy right may recover possession at will.

3. The learned Judge went on, however, to point out that the mortgagee had been in
undisturbed possession for about 25 years, and held therefore that the plaintiff's claim to
recover possession was barred by limitation. No doubt that would be the case, if the
mortgagee's possession had been that of a trespasser but it was permissive and no question of
adverse possession arose. In the case of Durga Chowdhuri v. Jagroop A. I, Rule 1923 All.
191, it was held that where the defendant was in possession under colour of an invalid
mortgage-deed, his possession was with the permission of the mortgagor and was not adverse
and no reason has been shown me why this decision should not be followed.

4. This appeal is, therefore, allowed with costs in all Courts, the orders and decree of the
lower appellate Court is set aside and those of the first Court restored.