Create Your Legal Document in Minutes! Get 10% off on your first order with code: LFI10

By Ritabh Singh, Articled Clerk, Vimadalal & Co., Advocates & Solicitors

ritabhsingh44@gmail.com | Jan 21, 2025

INTRODUCTION

In India, marriage is a special event for all those participating in the same. Certain cultures consider marriage to be a sacred vow and an eternal bond, whereas some cultures consider marriage to be a simple contract to live with a spouse. The Indian legal system, however, does not treat marriage as a simple contract, and Parliament has enforced various legislations to regulate and streamline the rights of various parties to a marriage. Post-nuptial and Pre-nuptial agreements, which deal with individual properties of the parties to a marriage, are not legally enforceable in India.

A question then arises; what if parties to a marriage enter a contract to marry wherein the consideration and object for both the parties is the marriage itself, with an additional caveat that if any party refuses to marry the other for any reason, such party shall pay pre-decided mutually aggregated liquidated damages to such other injured party. Will such a contract be enforceable?

STATUTORY PROVISIONS

A contract is defined under Sec 2(h) of the Indian Contract Act, 1872 (“the said Act”) as – “An agreement enforceable by law is a contract”.

An Agreement is defined under Sec 2(e) of the said Act as – “Every promise and every set of promises, forming the consideration for each other, is an agreement”.

Section 10 of the said Act describes what agreements are contracts –
“All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.”

Section 23 of the said Act describes which considerations and objects are lawful –

“The consideration or object of an agreement is lawful, unless— it is forbidden by law; or is of such a nature that if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy

In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void”.

Consideration can simply be understood as “something which is of some value in the eyes of the law. It may be some benefit to the plaintiff or some detriment to the defendant”[1].

The definition of consideration in Section 2(d) of the said Act clearly emphasises that an act or abstinence which is to be a consideration for the promise must be done or promised to be done in accordance with the desire of the promisor. In other words, an act shall not be a good consideration for a promise unless it is done at the desire of the promisor.

The “object” and “consideration” may in some cases be the same thing but usually they are different. The word ‘object’ used in Section 23 of the Act was not used in the same sense as ‘consideration’, but was used as distinguished from consideration to mean ‘purpose’ or ‘design’.

What is “immoral” depends upon the standards of morality prevailing at a particular time and as approved by the courts. But certain kinds of acts have been regarded as immoral since times immemorial and will perhaps always be so regarded.

The term “public policy” in its broadest sense means that sometimes the courts will, on considerations of public interest, refuse to enforce a contract[2].

According to Lord Halsbury, the categories of public policy are fixed and closed[3]. The same view has been adopted in India. One such head of public policy is that of marriage broker contracts. An agreement to procure the marriage of a person in consideration of a sum of money is called a marriage broker contract. Such agreements are void. A typical illustration would be an agreement for the sale of a girl.

ENFORCEMENT OF THE CONTRACT IN WHICH MARRIAGE IS PROMISED

Provided the court considers the consideration and object to be lawful, such a contract should be enforceable to demand the pre-decided mutually aggregated liquidated damages. To illustrate, if “A” and “B” decide to marry, execute a contract on the same and agree in it that if either of them withdraw from the marriage and thereby breaches the contract, the other party shall be entitled to a mutually aggregated liquidated damages amounting to Rs. 50,000/-. Thereafter, if “A” withdraws from the marriage, then “B” shall be entitled to the Rs. 50,000/-. The court may also increase or decrease such an amount after considering the actual expenses of the injured party towards the marriage, i.e., the printing costs, booking costs, mess & food charges etc. These factors are definite as a bill/invoice is usually raised for the same. Indefinite factors, such as mental injury, loss of reputation etc. also play an important part in deciding the actual damages, provided the court is desirous of amending the mutually aggregated liquidated damages as decided in the contract.

On the question of specific performance, the court cannot enforce the same. Section 14 of the Specific Relief Act, 1963, deals with the type of contracts that cannot be specifically enforced[4]. An order directing specific performance to marry would prima facie deprive the party of a fundamental right[5] just to enforce a civil one. Such an order will also be against public policy. Thus, even if the parties have contracted to marry and have provisioned for the specific performance of the same, such a contract will not be enforceable and the only remedy will be that of obtaining damages.

A reference should also be made to Section 26 of the said Act which states that any agreement in restraint of marriage is void. It can be argued that an agreement to marry one individual actually acts as a restraint to marry other individuals and such an agreement forces the parties to marry each other, thus being unenforceable. However, such an argument should fall short since there is no real restraint to marry someone else and the breaching party’s real liability is to pay damages.

CONCLUSION

What prima facie appears as a void agreement can in actuality be an enforceable contract. If the consideration or object for the marriage is money, property or some other tangible or intangible asset, such an agreement would be considered against public policy or immoral by the court, as it can be inferred that the purpose of the marriage was not to marry but to obtain that particular asset.

However, in a contract where both parties are truly desirous of marrying each other and they then put the same in writing and subsequently execute such writing as a contract, knowing and intending the legal consequences thereof, then such a contract would allow the injured party, in case of a breach, to claim and receive the mutually aggregated liquidated damages as decided and mentioned in the executed contract. The court will, under no circumstance, permit specific performance of the contract, even if the same has been agreed upon and provisioned in the contract.

Although such cases are rare, it is crucial to understand the legal principles governing the enforceability of such contracts[6].

[1] JusticePatterson: Thomas v Thomas, (1842)

[2] The subject of public policy has been considered in several articles and essays. See generally Lord Wright, Legal Essays And Addresses; Winfield, Public Policy in the English Common Law, (1928) 42 Har L Rev 76-102.

[3] See Parke B in Egerton v Brownlow, 10 ER 359, 408: (1853) 4 HLC 1, 123.

[4] Contracts not specifically enforceable.—The following contracts cannot be specifically enforced, namely:— (a) where a party to the contract has obtained substituted performance of contract in accordance with the provisions of section 20; (b) a contract, the performance of which involves the performance of a continuous duty which the court cannot supervise; (c) a contract which is so dependent on the personal qualifications of the parties that the court cannot enforce specific performance of its material terms; and (d) a contract which is in its nature determinable.

[5] Article 21 of the Indian Constitution

[6] Para 18, S.Valarmathi vs S.Elangovan on 13 November, 2014

GET HELP