1. Legal Provision #
Section 26, Indian Contract Act, 1872 states that:
Every agreement in restraint of the marriage of any person, other than a minor, is void.
If an agreement restricts an adult’s freedom to marry, it is void under Section 26.
2. Meaning: What is “Restraint of Marriage”? #
An agreement is said to be in restraint of marriage when it directly or indirectly restricts the freedom of a person to marry, for example:
- A promise not to marry at all, or
- A promise not to marry anyone except a particular person, or
- A clause that imposes a penalty / forfeiture / loss of benefit solely to discourage marriage, where the real effect is to restrain marriage.
Underlying principle: Marriage is treated as a matter of personal liberty and social welfare, so the law does not allow private agreements to control an adult’s marital choice.
3. Effect of Section 26: Void Agreement (for adults) #
- If the restraint relates to a person who is not a minor, the agreement is void ab initio (unenforceable from the beginning).
- It creates no legal obligation, and no damages can be claimed merely because the person married.
4. Minor Exception #
Section 26 expressly says “other than a minor”. Therefore, if an agreement restrains the marriage of a minor, it is not automatically void under Section 26.
The law makes this exception because restraints involving minors were historically viewed as protective in nature (e.g., preventing premature marriage).
5. Case Laws #
A. Lowe v. Peers (King’s Bench, 1768) #
Facts: Peers promised Lowe on a deed that he would not marry anyone other than her, and that if he married somebody else he would pay her £1,000 within three months. He later married another woman, so she claimed the penalty.
Issue: Is such a covenant—not to marry anyone except the promisee, backed by a penalty—enforceable, or is it void as a restraint on marriage and against public policy?
Held: The court treated it as void on public policy grounds because it operated as a restraint on marriage (“contracts in restraint of marriage void”). Therefore, the promise and penalty could not be enforced.
B. Air India v. Nergesh Meerza (1981) (Constitutional Case not about Indian Contract Act) #
Facts: Air India’s service rules for air hostesses provided for termination or retirement on certain events, including marriage within the first 4 years and first pregnancy.
Held: The Supreme Court examined the rules on constitutional grounds (Arts. 14–16). It struck down the “first pregnancy” termination (and related arbitrary discretion), but it did not strike down the “marriage within 4 years” condition in that decision.
Principle (why not ICA sec 26): This was not a private “agreement restraining marriage” between individuals; it was a service regulation of a State-controlled employer, so the Court tested it as a public law (equality) issue under the Constitution rather than treating it as a void contract term under Section 26 ICA.
C. Shrawan Kumar @ Pappu v. Nirmala (Allahabad High Court, 2012) #
Facts: Shrawan Kumar (Pappu) filed a civil suit saying Nirmala had agreed to marry him, but she was now likely to marry someone else. So he asked the court for a permanent injunction restraining Nirmala from marrying anyone except him.
Issue: Can a court grant an injunction that effectively restrains a person’s marriage, considering Section 26 ICA (agreements in restraint of marriage are void) and public policy?
Held: The High Court said such a suit itself is not maintainable. Since Section 26 makes any agreement restraining marriage void, a court cannot indirectly enforce it through an injunction (“what can’t be a valid agreement can’t be ordered by the court”). The Court treated the suit as against public policy (also noting the right to marry as part of liberty) and, using its supervisory power, quashed the plaint itself
6. Conclusion #
Agreements restraining marriage are generally void under Section 26 because the law protects freedom of marriage and treats it as a matter of public policy. The restraint is unenforceable when it concerns a person other than a minor. Courts have consistently disfavoured conditions that effectively restrict marriage, and the principle is supported by case law such as Lowe v Peers, and (in a broader policy sense) Air India v Nergesh Meerza.
