Annexure-V- Cover Page for Academic Tasks

Course Code: LAW113 Course Title: LAW OF CONTRACTS 1

Course Instructor: Dr. Varinder Kaur Section – L1902

Academic Task No.- 3 Academic Task Title: Assignment

Date of Allotment: 8 Feb , 2020 Date of submission: 20 April, 2020

Student’s Name: Aman Kathuria Student’s Reg. no: 11915048

Evaluation Parameters: (Parameters on which student is to be evaluated- To be mentioned by

specified at the time of assigning the task by the instructor)

Learning Outcomes: (Student to write briefly about learnings obtained from the academic tasks)

Evaluator’s comments (For Instructor’s use only)

General Suggestions Best part

Observation for improvement of assignmen

Declaration:
I declare that this Assignment is my individual work. I have not copied it from any oth
student’s work or from any other source except where due acknowledgement is made explicitly in the
has any part been written for me by any other person.

Student’s Signature:
 AGREEMENTS IN RESTRAINT OF MARRIAGE: POSITION IN ENGLISH LAW:

“Section 26” Of Indian Contract Act, 1872

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, a precedent
was set by the Court of King’s 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 remarked- “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.” The Court found the contract void as it
was purely restrictive and carried no promise to carry on either side.

Locus in Indian Legislation:

In India, based on a written agreement relationship between two or more parties are
mainly dealt with by the Indian Contract Act, 1872, put into law by the British related to
kings, queens, emperors, etc. 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 clearly made any such
agreement, which in its effect would result in limiting or holding down the freedom of
either of the parties to marry as per their wish, void. The basic idea behind this provision
was to make sure that the people who lawfully live in a country, state, etc. did not lose
their right to marry as per their choice, which is an extremely important part of and a
community of people living well together having both personal and social importance,
due to some based on a written agreement duty entered into at any point of time.
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.

Case Laws:
a) In Tulshiram v. Roopchand wherein a party had rescinded from the betrothal
contract and had later claimed such a contract was void. The plaintiff’s 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.
 b) In Abbas Khan and Another v. Nur Khan In this case, before the Lahore High
Court, a Muslim woman had married a man without the consent of her nearest
male relative. It was contended by the kin that being part of the Pathan
community of ilaqa Makhad, the bridegroom who married the woman without
the consent of her nearest male relative must pay to the man an amount
called ‘rogha’ or bride-price under customary Muhammadan law.

The lower courts had ascertained that such a practice existed and had allowed the
plaintiff to seek payment from the groom. However, a division bench of justices at
the High Court on the second appeal held that such payment of money for marriage
to an adult woman was not enforceable by law as it was immoral and opposed to
public policy.

EXCEPTION OF SECTION 26 OF Indian Contract Act, 1872 :

Section 26 of the Indian Contract Act is a widely phrased provision with only one
significant exception. It does not hold void any agreement made in restraint, partial or
absolute, of the marriage of a minor. This exception is present as it is against public
policy in general to marry a minor and by exercising restraint on such acts, the
agreement restraining such marriages can be said to further public policy instead.

The Law Commission dealt extensively with the Indian Contract Act, 1872 and suggested
several changes by attaching a draft bill as Appendix of the commission report wherein it
proposed the substitution of several sections including Section 26 of the Act, thus, desiring to
bring in a change in the law relating to agreements in restraint of marriage.

The suggested version was-

“26. Agreement in restraint of marriage void in certain cases:

(i) Every agreement in total restraint of the marriage of any person, other than a minor, is
void.

(ii) An agreement in partial restraint of the marriage of any person, other than a minor, is void
if the court regards it as unreasonable in the circumstances of the case.”

Thus, the Commission envisioned to restrict the purview of the section by terming void any
agreement in total restraint of marriage while allowing partial restraint if the restraint so
agreed upon is found to be reasonable by the court under the circumstance. This would allow
several agreements which could be better for an individual as well as the society.

For instance, in the present day world, higher education often stretches far after arriving at
the age of majority. Now, if the suggestion of the Commission was abided by, a parent may
enter an agreement with their child to not marry till they finish their education. This would
not only help in attaining full education but would also allow marriages to be held at a later
stage where the parties would be more mature and the chances of a stable marriage would
rise.
Another kind of restraint could have been imposed by allowing marriage only after the person
has started earning their own living. This would ensure that the person is capable of bearing
the responsibility of a family when marriage is entered into, thus, reducing the burden on the
parents of the parties, and the society at large.

The Law Commission dealt extensively with the Indian Contract Act, 1872 and suggested
several changes by attaching a draft bill as Appendix of the commission report wherein
it proposed the substitution of several sections including Section 26 of the Act, thus,
desiring to bring in a change in the law relating to agreements in restraint of marriage.
The suggested version was-
“26. Agreement in restraint of marriage void in certain cases:
(i) Every agreement in total restraint of the marriage of any person, other than a minor,
is void.
(ii) An agreement in partial restraint of the marriage of any person, other than a minor,
is void if the court regards it as unreasonable in the circumstances of the case.”
Thus, the Commission envisioned to restrict the purview of the section by terming void
any agreement in total restraint of marriage while allowing partial restraint if the
restraint so agreed upon is found to be reasonable by the court under the
circumstance. This would allow several agreements which could be better for an
individual as well as the society.
For instance, in the present day world, higher education often stretches far after
arriving at the age of majority. Now, if the suggestion of the Commission was abided by,
a parent may enter an agreement with their child to not marry till they finish their
education. This would not only help in attaining full education but would also allow
marriages to be held at a later stage where the parties would be more mature and the
chances of a stable marriage would rise.
Another kind of restraint could have been imposed by allowing marriage only after the
person has started earning their own living. This would ensure that the person is
capable of bearing the responsibility of a family when marriage is entered into, thus,
reducing the burden on the parents of the parties, and the society at large.