Abaas Khan vs. Nur Khan, AIR 1920 Lah 357

Introduction

The instant case falls under the ambit of Section 26 of the Indian Contract Act. The features of the said Act are as follows-

1. The main idea behind this rule is to reinforce the right provided by Article 21 of the Indian Constitution. It is to forbid any act that may take away either party's freedom to marry a person of his own choice.
2. The marriage restraint agreement is null and void because, in the first place, it is against public policy. Second, the law limits all types of implications in the institution of marriage, even if it is in the form of an agreement.
3. Unlike Section 28 of the Indian Contract Act, which declares agreements solely in total restraint of legal procedures to be unlawful, an agreement that serves to hold either the partial or absolute restriction of marriage is void. 
4. All agreements in the restraint of marriage are null and invalid. But, such agreements that put marital restrictions on a minor may be elevated to the status of acceptable.

Parties

Abaas Khan, Plaintiff

Nur Khan, Defendant

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Facts

In this case, a Muslim woman married a man without the approval of her nearest male relative. The kin claimed that, as member of the Pathan community, the bridegroom musr take approval of woman’s nearest male relative. The bridegroom who wedded the woman without the approval was required to pay the man a sum known as ‘rogha’. This requirement was as per Mohammaden law.

The lower courts determined that such practice prevailed and granted the plaintiff the right to seek money from the groom. In the second appeal, a division bench of judges at the High Court concluded contrary to this. It concluded that such payment of money was not legally enforceable because it was immoral and contrary to public policy.

Issue

Should the bridegroom pay the nearest relative of the woman who he had married, in compliance with the Muhammadan Law?

Rule of Law

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

Judgement

The Allahabad High Court ruled that, while customary practices put a partial limitation on marriage, they are invalid. It is since they contradict the framework of Section 26 of the Indian Contract Act. The judiciary has now followed the logic of this decision. And ruled that in India, an agreement that imposes either absolute or partial restraint on marriage is null and void. In contrast, the Law Commission's 13th report said that a partial constraint in marriage might be declared legal. But, only at the opinion of the court, i.e., after evaluating the factual situation of the case, if the court considers it rational.

Scott-Smith, J. also added- “To enforce such a custom would be tantamount to saying that a woman of full age cannot marry a man unless the latter pays a large sum, which it may be impossible for him to do, to her nearest male relative. It would be a custom in restraint of marriage and opposed to the principle of section 26 of the Contract Act.” Thus, it was determined to be in violation of Section 26 of the Contract Act.

Conclusion

Since then, the judiciary has adopted this view. Any arrangement in restraint of marriage, whether total or partial, is deemed null and void in India. This is in contrast to English law, which allows for partial marriage restriction agreements.

However, there appeared to be a deviation from this view in the case of Air India and Others v. Nergesh Meerza and Others. Air Hostesses launched this claim at Air India and Indian Airlines, which were sister companies, one catering to domestic flights and the other to international travel. The Air Hostesses filed a complaint against the Air India Employees Service Regulations, Regulations 46 and 47, as well as the Indian Airline Service Regulation, Regulation 12.

According to the aforementioned regulations, Air Hostesses resigned from duty in the following circumstances: (a) at reaching the age of 35; (b) upon marriage, if it occurred within four years of service; and (c) upon first pregnancy. While the Supreme Court directed the companies to change their regulations to bring the retirement ages of the two subsidiaries in line and also struck down the rule against first pregnancy as a violation of Article 14 of the Constitution, it upheld the restriction on marriage for the first four years of service, keeping in mind the practical needs of the business as well as the rights of the employees.

It should be emphasized that a breach of Section 26 of the Indian Contract Act of 1872 was not pled before the Supreme Court in this instance, despite the fact that a partial restriction on marriage was clearly included under the service agreement.

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