Agreement in Restraint of Marriage under Section 26 of the Indian Contract Act, 1872: Absolute and Partial Restraints, the Minor Exception, and Conditions Attached to Property on Remarriage

Section 26 is the shortest of the void-agreement provisions and the most absolute. Every agreement in restraint of the marriage of any person other than a minor is void. Unlike Section 27, which at least admits a statutory exception for the sale of goodwill, and unlike Section 28, which saves arbitration agreements, Section 26 contains no exception at all beyond the carve-out for minors. The policy is that marriage is a matter of personal liberty and status, and that the choice whether and whom to marry should not be tradeable. The practical questions are therefore about the boundary: what counts as a restraint, and what is merely a condition attached to the enjoyment of property.

What Section 26 strikes down, and what it does not touch

1. The Provision

Section 26, Indian Contract Act, 1872

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

Four features of the drafting govern its operation.

It applies to every agreement in restraint, without distinguishing between a total restraint and a partial one. This is a departure from the English position, under which a partial restraint may be upheld if reasonable.
It protects the marriage of any person, not merely of a party to the agreement. An agreement between two persons restraining the marriage of a third is within the section.
It excepts a minor. An agreement restraining the marriage of a minor is outside the section, which reflects the separate statutory policy against child marriage.
It admits no exception on grounds of reasonableness. The court does not inquire whether the restraint was reasonable in the circumstances, only whether the agreement is in restraint of marriage.

2. Absolute and Partial Restraints

A restraint is absolute where the person is prevented from marrying at all, and partial where he is prevented from marrying a particular person, or a person of a particular class, or from marrying for a specified period. Section 26 voids both, and the Indian courts have consistently applied it to partial restraints.

📖 Lowe v. Peers, (1768) 4 Burr 2225

Facts: The defendant executed a written promise under seal that he would not marry any person besides the plaintiff, and that if he did so he would pay her a substantial sum. He afterwards married another woman, and the plaintiff sued on the promise.

Held: The promise was void. It was not a promise to marry the plaintiff, which would have been lawful, but a promise not to marry anyone else, unsupported by any corresponding obligation on her part. A covenant of that kind operates in general restraint of marriage and is void as being against public policy, and the penalty attached to it was equally unenforceable.

Ratio: A promise not to marry any person other than a named individual is a restraint of marriage and is void, and it is to be distinguished from a promise to marry a particular person, which is not a restraint at all.

2.1 The distinction Lowe v. Peers draws

A promise to marry a particular person is not within the section. It does not restrain marriage; it commits the promisor to it, and such an agreement is enforceable subject to the ordinary rules.
A promise not to marry anyone else is a restraint, because its operation is negative and its effect is to close off the promisor's freedom of choice without securing any marriage at all.
A penalty attached to a restraint falls with it. Where the agreement is void under Section 26, a stipulated sum payable on breach is unenforceable, since it is a term of a void agreement.
A restraint for a limited period is still a restraint. An agreement not to marry for five years is void, and the court will not treat the limitation of time as making it reasonable.

3. Conditions Attached to Property

The most difficult boundary is between an agreement that restrains marriage and a provision that merely attaches a condition to the enjoyment of property. The first is void under Section 26; the second is not, provided it does not in substance operate as a compulsion not to marry.

📖 Rao Rani v. Gulab Rani, AIR 1942 All 351

Facts: Two widows of the same man came to an arrangement about the property left by him. Under the compromise each was to enjoy a share, with the stipulation that if either of them remarried, she would forfeit her share in the property, which would then pass to the other. One of them remarried and disputed the forfeiture, relying on Section 26.

Held: The Allahabad High Court upheld the arrangement. There was no restraint on marriage. Neither widow was under any obligation not to remarry, and neither was prevented from doing so. The arrangement merely provided that on remarriage a particular property benefit, conferred by the compromise itself, would cease and would pass to the other. A provision that a benefit shall determine on the happening of an event is not an agreement in restraint of that event.

Ratio: A stipulation that a person shall lose a property benefit on remarriage is not an agreement in restraint of marriage. Section 26 strikes at obligations not to marry, not at conditions regulating the enjoyment of property.

⚠ The line is drawn by substance, not by drafting

Rao Rani does not permit a restraint to be saved by dressing it up as a property condition. The question is whether the provision compels the person not to marry or merely defines how long a benefit is to last. Where the benefit is the person's only means of support and its forfeiture would make remarriage practically impossible, or where the sum stipulated is so large that it operates as a penalty rather than as the natural end of an interest, a court may well find that the arrangement is in substance a restraint. The presence of a genuine reason for the limitation, such as an intention to provide only for the period of widowhood, supports the conclusion that no restraint was intended.

4. The Boundary Cases

Arrangement	Within Section 26?	Reason
A promise not to marry at all	Yes, void	An absolute restraint
A promise not to marry any person other than X	Yes, void	A restraint, per Lowe v. Peers; it closes off choice without securing a marriage
A promise not to marry for a stated period	Yes, void	A partial restraint, and Section 26 does not distinguish partial from absolute
A promise not to marry a person of a particular family, caste or community	Yes, void	A partial restraint on the choice of spouse
A promise to marry a particular person	No	It commits the promisor to marriage rather than restraining it
A provision that a maintenance or property benefit ceases on remarriage	No, ordinarily	A condition defining the duration of a benefit, per Rao Rani, unless in substance a compulsion
An agreement between parents for the marriage of their children	No	Not a restraint, though it may be void on other grounds such as marriage brokerage under Section 23 if made for reward
A restraint on the marriage of a minor	No	Expressly excepted by the section

5. Related Grounds of Invalidity

An agreement touching marriage may be void under Section 26 and also, or instead, under other provisions. The pleader should consider each.

Marriage brokerage agreements, that is agreements to procure a marriage for reward, are void under Section 23 as opposed to public policy, not under Section 26, since they do not restrain anyone from marrying.
Dowry agreements are prohibited by the Dowry Prohibition Act, 1961, and are void as forbidden by law under Section 23.
An agreement to procure a divorce, or to pay a spouse to obtain a separation, is opposed to public policy under Section 23.
Agreements for future separation between spouses are void as opposed to public policy, though an agreement made on an actual separation regulating maintenance and property is ordinarily valid.
A child marriage is regulated by the Prohibition of Child Marriage Act, 2006, which operates independently of the Contract Act.

6. Why the Rule Is Absolute

Marriage is a matter of status and personal liberty, and the law treats the freedom to marry as belonging to the person and not to the market.
A restraint benefits the promisee and burdens the promisor's whole life, so the ordinary assumption that parties are the best judges of their own interests applies with less force.
Any reasonableness test would require the court to evaluate the merits of a particular marriage, which is not a judicial function.
The English distinction between total and partial restraints has produced uncertainty, and the Indian draftsman avoided it by making the rule absolute, in the same spirit as Section 27 on restraint of trade.

7. The Position Stated Shortly

Section 26 voids every agreement in restraint of the marriage of any person other than a minor.
It makes no distinction between absolute and partial restraints, and admits no test of reasonableness.
It protects the marriage of any person, so an agreement restraining the marriage of a third party is within it.
Lowe v. Peers: a promise not to marry anyone other than a named person is a restraint and is void, together with any penalty attached to it.
A promise to marry a particular person is not a restraint and is enforceable in the ordinary way.
Rao Rani v. Gulab Rani: a stipulation that a property benefit shall cease on remarriage is not a restraint, since no obligation not to marry is imposed.
The line is drawn by substance, and a condition that in effect compels a person not to marry will be struck down.
Marriage brokerage, dowry and agreements for future separation are void under Section 23 rather than Section 26.

8. Related Topics and Provisions

Topic or provision	Connection
Void Agreements under Sections 24 to 30	Section 26 among the classes declared void
Lawful Object and Consideration under Section 23	Marriage brokerage, dowry and agreements for separation
Intention to Create Legal Relations	Family arrangements and their enforceability
Contract Law and Freedom of Contract	The limits the Act places on what parties may agree
Section 26, Indian Contract Act	The provision itself
Section 23, Indian Contract Act	Public policy, and agreements touching marriage
Section 27, Indian Contract Act	The parallel absolute rule on restraint of trade
Dowry Prohibition Act, 1961	Statutory prohibition of dowry agreements
Prohibition of Child Marriage Act, 2006	The separate regime governing marriage of minors