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Report No. 13

52. Section 26.-

The English Law1 on the subject may be stated thus: A contract which is in general restraint of marriage, i.e., the object or effect of which is to restrain or prevent a party from marrying any person or which is deterrent to marriage in so far as it makes any person uncertain whether he may marry or not, is void. A contract not to marry any person other than the party to it was held to be void on the ground that if that party had chosen not to marry him he was restrained from marrying at all. A contract that the plaintiff would not marry within six years was held to be void, there being no circumstance showing that the restraint was prudent or proper. Prohibition against marrying from among domestic servants has been held to be valid as the person restrained was free to marry any other woman.

Thus, the prohibition against marrying a particular person, or persons identified by names or as belonging to a specified class is good. Prohibition against second marriage is sometimes held to be valid.2 Whether an agreement in partial restraint of marriage is void would deperithok, the circumstances of each case. There may be circumstances, e.g., ill-health of one of the spouses, which may justify a contract that a person shall not marry within a certain number of years.

1. Halsbury Laws of England, 3rd Edn., Vol. 8, p. 135.

2. Allen v. Jackson, (1875) 1 Ch D 399.

In Rao Rani v. Bulab Rani, AIR 1942 All 351 (353), the Allahabad High Court has expressed doubt on the question whether partial or indirect restraint of marriage was within the scope of section 26. This doubt must be resolved and it should be provided that an agreement in partial restraint is void only if the Court regards it as unreasonable in the circumstances of the case.

Indian Contract Act, 1872 Back

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