Breach of Promise to marry an actionable offence

One of the most noticeable changes in recent years is the increased cases of breach of promise to marry. Recently  a case  has hit the head lines ,A couple who had originally met in civil service exam training institute initially became friends - the man courted and proposed to marry her; she accepted his love on the condition that they would get married; and  subsequently the man  who topped the civil service exam got selected  to the Indian police service. There was love lost between them. The happy beginnings  started to stir up contentions. The girl  has knocked the doors of  justice –the man who has promised to marry her has failed to honour  his promise. Whether her charges hold water ?The decision is anchored on the trial court's findings and conclusions but the case has thrown up several issues. Can the provision of law  protect a girl from such  breach of promise? An action for breach of promise to marry may be taken by a man as well as a woman. When the female is the injured party, there is generally more reason for a resort to the laws, than when the man is the sufferer. My colleagues have been debating whether the breach of promise action is an appropriate remedy in our present day legal system. Some of them  argued that the remedy is inimical to the mores of our present day society and that breach of promise to marry per se is not actionable, except where the person has actually incurred expenses for the wedding and the necessary incidents thereof.

A woman's livelihood depends on marriage. Her  social obligation is to marry and build a family; this is an emphasis constantly reinforced by  peer groups ,family, and  also a   popular opinion. It is important that a woman's reputation is intact and her eligibility protected.  Involvement in a failed engagement could threaten this. The promise and reciprocal agreement of marriage  is considered to be a civil contract. There are countless gaps in the  laws which leave so many victims of moral wrongs helpless even though they have actually suffered material and moral injury. To vouchsafe  there is adequate legal remedy .

There can be an  action for breach of promise unless a contract to marry has been made. There are no formal requirements regarding the contract. It need not to be evidenced by writing and the law prescribes no particular form of words. A promise by one person to marry another is not binding unless and until that other also promises to marry the first person. Mutual promises to marry may be implied from the conduct of the parties. A mutual promise to marry may be made expressly or impliedly.

The contractual relation in a marriage agreement is different from other agreements. In re Marriage of Mehren & Dargan, the California Supreme Court differentiated the contractual relation in commercial contracts from that of  marital contracts. Generally, commercial contracts have a specific object and the parties enter into such contracts to achieve their objects.  Marital contracts are entered into with the expectation that the contract will never be revoked.  Moreover, marriage itself is a highly regulated institution of undisputed social value.  Parties intending to recover for breach of marriage must show that a valid contract existed for the purpose of marriage and parties had an intention to make a binding contract. The essential element for the creation of a marriage contract is that both the parties must understand each other’s intention to enter into the marriage relation.  Parties incapable of entering into a contract cannot make an agreement to enter into a contract for marriage.  Incapacity to enter into a marriage is a valid defense to breach of a promise to marriage.  Additionally, a promise to marry a married person is invalid.  A promisor to such an agreement will be held liable for breach of a promise, in the event of termination of prior marriage by divorce, annulment, or death of the former spouse.  For a contract to be valid and enforceable, there must be a meeting of minds between the promiser and the promisee.  In a marriage contract, one party’s promise is adequate consideration for the other party’s promise.  The only condition is that the consideration must not be illegal. Parties to a marriage contract can rescind the contract by mutual consent.  A contract can also be rescinded on the basis of vitiating elements like fraud, duress, incapacity, coercion, or misrepresentation.

In a marriage contract, a breach of promise results from the unwillingness to perform one’s promise to marry. Unless there is a legally justifiable reason, an unwillingness to perform one's promise to marry creates a breach of promise to marry. Mere postponement of the marriage will not amount to breach of promise.  However, arbitrary postponement without any valid reason will amount to a refusal to comply with the promise.

One type of agreement which is clearly unenforceable in English law, is the ‘pre-nuptial’ agreement common in the United States. This type of agreement is made prior to marriage in order to avoid, or minimise, disputes about the distribution of property if the marriage breaks down. Such an agreement is however, regarded as contrary to public policy by the courts, and therefore unenforceable.

Breach of promise to marry is a remedy which is sui generis and has features in common with an action based on contract and an action in delict..( an intentional or negligent act which gives rise to a legal obligation between parties even though there has been no contract between them ) It not only amounts to a breach of contract, but also constitutes a wrong against the injured party. Recoverable damages include Compensatory Damages for injury to the feelings and health as well as to his or her reputation. One may also recover damages for any financial loss resulting from the breach, comparable to the recovery in a breach of any other contract action, in addition to compensation for loss of advantages that would have stemmed from a marital relationship with the accuser.

The act of marrying is a personal obligation, therefore legally; a demand for specific performance is simply out of the question—being tantamount to involuntary servitude. Therefore a  suit  for specific performance has nothing to do with forcing a marriage to take place.

In Frost vs Kight (1872) –case pertains to   an agreement to marry.The defendant  had agreed to marry the plaintiff once the defendants father had died .The defendant broke of the engagement  before his fathers death.Chief justice Cockburn observed  that this renunciation tantamount to breach of promise.

In short vs stone 1846 8 QB 358 –Chief justice Lord campbell  observed  that if a man promises  to marry a women on a future  date and marries another woman before that date then the promisee is entitled to file a suit against the promisor for breach of contract to marry.

A critical study of these two decisions  set an example in the jurisprudence of marriage agreements and exemplary damages.Two points arose in the aforesaid decisions-1)The breach of promise to marriage is actionable. 2)Exemplary damages  along with normal damages can be awarded (the basis of damages include hurt feelings, embarrassment and damage to reputation.

Our laws do not provide specific reliefs for cases arising purely from a breach of one’s promise to marry another.An aggrieved person can claim compensation or damages for breach of promise to marry.Once the existence of promise to marry is proved then its breach would certainly be actionable under section 73 and 74 of the Indian contract act. Damages for breach of promise to marry shall include not only material and pecuniary losses but also compensation for mental and moral suffering. Fraudulent representations regarding a marriage is  capable of giving rise, in appropriate circumstances, to criminal as well as civil liability

Breach of promise involves an individual’s right to prosecute or make a claim against another individual who has reneged on a promise. Breach of promise to marry at best would also  attract an offence of cheating under Section 415 of the Indian Penal Code. "For instance, if a man who promises a woman to marry ;breaks the promise, it is false representation If, at the time of giving such a promise, he did not intend getting married, then it would certainly amount to cheating .It could also be interpreted that Breach of promise to marry is different from a case of false promise to marry. Each case has its own peculiar facts which may have a bearing on the weight of  evidence, keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence.

Failure to keep the promise- There may be countless factors for which an accused may fail to keep his promise. He may even change his mind for various reasons, foul or honest.. “Chastity and / or ‘virginity’ of woman can also be covered by the definition of property used in Sec.415 IPC, property  in the sense means- stealing chastity of women  as if it were property. Impugning Chastity is a property  type  injury  to a girl’s reputation. Sexual purity is the sole valuable component of their “property” law has not reinforced the social significance attached to a woman’s sexual purity. There  is a parallel to be drawn with the law on chastity. Chaste is a primal code of conduct  that defines the duty of  a girl  within the social group .A social  code of chastity differs from a legal code .chastity is implicit rather than explicit and objectified. Chastity  can also be distinguished from dignity, which is measured against an individual's conscience, rather than against the judgment of a community. A girl dating with a boy or  in romantic relationship without physical relations is  judged by the community as a person of loose morals. The word chastity is shrouded in euphemism and it  also depends on ones thoughts and behavior. The law of chastity is a moral code . It is also defined - to be morally clean in "thoughts, words, and actions."India has rich traditional values and  dating is not a customary practice in India, dating, snogging, petting, hugging, fondling violates the boundaries of chastity.  Our social code  do not digest the  relationship  of a unwedded couple  as platonic, romantic but  chaste. society looks on platonic relationships with  jaundiced eyes and cast aspersions on  the girls  character . The prejudice is invincible and the physical suffering, mental anguish, social humiliation, besmirched reputation moral damages and embarrassment suffered  before ones relatives and friends causes irremediable damages. Courts should take into consideration the realities of Indian life as they impinge on marriage and the social and moral stigma that is attached to the agony ,insult and neglect of the victim of a broken promise to marry.

K.SURESH BABU

M.A.(DEFENCE STUDIES) M.A.(CRIMINOLOGY)M.A.(LABOUR STUDIES) B.L. ADVOCATE TRICHY

NEW NO 9,RAJA COLONY,

SECOND MAIN ROAD,

LAWSON-COLLECTOR OFFICE ROAD,CANTONMENT,TRICHY

Email: lawyersureshbabu@gmail.com