Prenuptial agreements, commonly known as prenups, have become a topic of considerable interest among couples considering marriage, especially in an era where personal and financial independence is increasingly valued. While prenuptial agreements are a standard practice in many Western countries, where they are widely accepted and enforceable, their legal status in India is less clear and far more contentious.
This article delves into the legal standing of prenups in India, exploring whether they are legally binding and the challenges they face in the Indian legal system.
What is a Prenuptial Agreement?
A prenuptial agreement is a legal contract entered into by a couple before marriage, outlining the terms and conditions related to the division of assets, liabilities, alimony, and other financial arrangements, should the marriage dissolve. Common provisions in prenups may include the division of property, spousal support, debt distribution, and protection of family heirlooms or businesses.
Current Legal Framework in India
While Goa recognises prenups as legally binding and valid due to the Portuguese Civil Code,[1] there are no specific provisions in central Indian Law which govern prenuptial agreements, thus there is no legislative recognition of such agreements. Marriage in India is instead regulated under personal laws applicable to each religion such as the Hindu Marriage Act 1955 and the Muslim Personal Law (Shariat) Application Act 1937. Civil marriages and marriages irrelevant of religion are presided over by the Special Marriage Act 1954, which too does not have a provision for prenuptial agreements. With these many acts of Parliament presiding over marriages, the resulting case law regarding validity of prenups too is convoluted.
However, prenuptial agreements could be examined under the Indian Contract Act, 1872 (“ICA”), which governs all contracts made in India. One reason for prenuptial agreements not being valid contracts is the want for consideration. The ICA specifically states for a contract to be valid, there must be consideration, or something of value, exchanged for the promise.[2] Whereas, in a prenuptial agreement where simply a certain division of assets is given, there is no monetary exchange which can be called consideration.
Judicial Stance on Prenuptial Agreements in India
Indian courts have shown a cautious approach toward prenuptial agreements. While there is no landmark ruling explicitly affirming the enforceability of prenups, some judgments provide insight into how courts might interpret them. For instance, courts have often emphasized that marriage is not merely a contract but a sacrament in the Indian context, especially under Hindu law.
Another reason was espoused by High Courts in multiple judgements in the early 20th century. For example, in Krishna Aiyar v. Balammal[3] the spouses entered into an agreement wherein it was stated the wife would return to her husband but if she wished to live separately in the future, she would be due INR 350. The Madras High Court found this agreement to be void under Section 23, Indian Contract Act for going against Indian public policy. Similarly, in the case of Tekait Man Mohini Jemadi v. Basanta Kumar Singh[4] the Calcutta High Court declared a prenuptial agreement which prevented the wife from moving out of her mother’s house to be void and in contravention, once again, of Section 23. The Hon’ble judges reasoning in their judgements seems to put a lot of importance on marriage being a sacrosanct institution that the law cannot allow to be disturbed for the sake of it. As a result, they viewed prenuptial agreements as allowing spouses, through the dissolution of their marriage, to revocate their rights granted under personal laws. Meanwhile, seemingly in opposition to the cases above, in Pran Mohan Das v. Hari Mohan Das,[5] the Calcutta High Court found a prenuptial agreement to be valid and not against public policy as it concerned division of property rather than brokerage of marriage. The Court also underlined the contractual nature of the agreement by using the principle of ‘part-performance’ to estop recovery of the property by the plaintiff.
Under Muslim personal laws too, where marriages were already viewed as a civil contract between spouses, courts found prenuptial agreements to be void. They cited concerns that prenup agreements indicate an intent to separate in the future and thus go against public policy.[6] Khatun Bibi v. Rajjab[7] was notable, however, for stating orbiter that ‘ante-nuptial’ agreements may be valid where they concern living arrangements provided they are reasonable.
This status quo where prenuptial agreements were considered to be void and in contravention of the Indian public policy held for the rest of the 20th century and until recently, save for very few exceptions.
Modern Case Law and their Interpretation of Prenuptial Agreements
In perhaps a reflection of changing societal standard, courts have begun to be more willing to accept prenuptial agreements in some form. In Sunita Devendra Deshprabhu v. Sita Devendra Deshprabhu,[8] for example, the Bombay High Court upheld the terms of a prenuptial agreement concerning the separation of assets. In a recent case before a Mumbai family court[9] meanwhile, it was decided that though the prenuptial agreement was not valid it would serve as evidence of the parties’ intentions under the Family Courts Act.[10] This gives prenuptial agreements some legal strength during proceedings, albeit not complete validity. A Patiala Family Court Judge was even stronger in her judgement.[11] She said that the ‘time has come to make compulsory prenuptial agreement to be executed before appointed authority…’. The judge cited the spirit of the Family Court Act ‘to bring out settlement between the parties’ and the best and most efficient way of doing so is following the parties’ own delineation set out in their prenuptial agreement.
Though not explicitly concerning prenuptial agreements, there is a statutory duty imposed on a husband to pay maintenance to his wife. This was previously under Section 125 CrPC[12] but is now enshrined under Section 144 of the Bharatiya Nagarik Suraksha Sanhita.[13]
Potential Benefits of Prenuptial Agreements
Despite the challenges, prenuptial agreements offer several benefits:
- Clarity and Certainty: Prenups provide clarity on financial arrangements and asset division, reducing the potential for disputes in the event of a divorce or separation.
- Protection of Individual Assets: They help protect personal assets, family businesses, and inherited properties, ensuring that each party’s interests are safeguarded.
- Minimization of Disputes: A well-drafted prenuptial agreement can minimize litigation and promote amicable settlements by clearly outlining the terms of separation.
Conclusion
All in all, barring a few cases finding the opposite, prenuptial agreements in India have been found to be contrary to public policy and as such invalid as contracts. However, this was the prevailing attitude in the 20th century which has seemingly changed in recent times. Courts have been more willing to find some validity for prenuptial agreements, even if only to ascertain intentions of the spouses. In that aspect, however, there is uncertainty. To what extent can courts ascertain those intentions? Are they able to imbue intentions as they do with contracts? Moreover, prenuptial agreements regarding pre-marital assets and property can be simple, but when such agreements consider things that impact family life such as custody of children would the courts still apply terms of the prenup? There is therefore a requirement for statutory or High Court/Supreme Court clarification on these matters and to simplify the law regarding prenuptial agreements.
[1] Article 1096, Portuguese Civil Code 1867
[2] Section 10
[3] (1911) ILR 34 Mad 398
[4] (1901) ILR 28 Cal 751
[5] (1925) AIR Cal 856
[6] Ahmad Kasim Molla v. Khatun Bibi (1933) AIR Cal 27
[7] (1926) AIR All 615
[8] (2016) 6 Bom CR 567
[10] Section 14, Family Courts Act 1984
[11] HMA No. 181/2023 (Parties’ names concealed for confidentiality)
[12] Section 122, Code of Criminal Procedure 1973
[13] Section 144, Bharatiya Nagarik Suraksha Sanhita 2023
Disclaimer: The information provided in this article is for general informational purposes only and should not be construed as legal advice. The content is not intended to create, and receipt of it does not constitute an attorney-client relationship. Readers should not act upon this information without seeking professional counsel.
