Introduction

To assess the validity and enforceability of prenuptial agreements under Hindu law, we first must be clear about two things:

• What a Prenuptial Agreement is; and
• What exactly is the nature of a Hindu marriage?

Meaning of Prenuptial Agreements

Black’s Law Dictionary defines prenuptial agreements as

‘One entered into by prospective spouses prior to marriage but in contemplation and in consideration thereof; by it, the property or other financial rights of one or both of the prospective spouses are determined or are secured to one or both of them or their children.’ [1]

The interpretation of this definition will be important later.

Nature of a Hindu Marriage

Now, from time immemorial, the Hindu marriage has been considered a sacrament, an essential part of one’s dharma, a union extending for 7 lives with no room for divorce, for it is not a contract. [2]

This indissoluble sacramental character has been somewhat challenged by the introduction of the Hindu Marriage Act 1955, which has codified Hindu marriage laws.

With the introduction of provisions like divorce, and restitution of conjugal rights (akin to termination and specific performance of a contract, respectively), the position of a Hindu Marriage can now be described as a ‘sacramental contract’. [3]

Prenuptial Agreements Under Hindu Law

So if a Hindu marriage is a sacrament, yet it is also a contract, could then and should then a Prenuptial Agreement be granted validity; is the question we are faced with.

Since no Indian law on Hindu marriage explicitly validates or invalidates a prenuptial agreement, this article shall try to explore the varying judicial positions on the subject throughout the years; while identifying and highlighting a major gap that exists.

Key Legal Gap in Existing Scholarship

While existing legal scholarship heavily evaluates prenuptial agreements as a monolithic entity, it routinely overlooks the critical taxonomy separating behaviour-controlling arrangements from purely asset-based financial agreements.

Therefore, if the former is quite vehemently prohibited, what is the legal status of the latter? And is there a loophole?

Key Concepts at a Glance

Concept	Description
Prenuptial Agreement	An agreement entered into before marriage determining financial or property rights of the spouses.
Traditional Hindu Marriage	Regarded as a sacrament and an essential part of Dharma.
Modern Hindu Marriage	Often described as a “sacramental contract” following codification under the Hindu Marriage Act, 1955.
Core Legal Question	Whether prenuptial agreements can be considered valid and enforceable under Hindu law.
Research Gap	The distinction between behaviour-controlling clauses and asset-based financial arrangements remains underexplored.

Judicial Approach to Prenuptial Agreements in India

Two of the most longstanding and landmark cases in this regard must be discussed: Paigi v. Sheonarain and Tekait Mon Mohini Jemadai v. Basanta Kumar Singh.

Paigi v. Sheonarain Case Analysis

In Sheonarain the question was whether a pre-marriage agreement, by the husband, promising to reside permanently at his mother-in-law’s home was enforceable after a series of events including the husband residing with his mistress somewhere else and ultimately the husband praying for restitution of conjugal rights.

The wife’s bringing up of the prenuptial agreement determining the place of residence was rejected for being “absurd”.

Tekait Mon Mohini Jemadai v. Basanta Kumar Singh Case Analysis

Similarly, in Mon Mohini, the parents of the husband and the husband himself signed a pre-marriage agreement when he was a minor stating that he would reside in the house of his mother-in-law and would abide by the instructions of his mother-in-law.

Yet, after living for about 15 years as such, the husband left his mother-in-law’s residence on account of the arising of some differences and demanded that his wife reside with him in his residence.

The Calcutta High Court relied on the Sheonarain case to hold that this premarital agreement was opposed to public policy as it was meant to permanently control the rights of the husband granted by Hindu law.

Hindu Law and Public Policy Reasoning

The rationale of such a decision is interesting.

In Mon Mohini the husband’s status vis-à-vis the wife, under Hindu law, was deliberated upon. The analysis of Hindu religious texts helped the Court reach the conclusion that it is the bounden duty of the wife to live with her husband, wherever he may choose to reside, to submit herself to his authority, never to separate from him and to attend upon him and in his religious ceremonies, and that the violation of such duty is a great sin, which results in terrible punishment in the next world.

Considering that Hindu religious texts were the laws governing the subject, the said prenuptial agreement was deemed to be invalid under S.23 of the Indian Contract Act, which makes contracts against the law (here the Hindu Religious Law) or against public policy (here infringing upon the godlike status of the Hindu husband vis-à-vis the wife) invalid.

Difference Between Traditional and Modern Prenuptial Agreements

The subsequent cases have been using these two and other similar precedents, yet one glaring avenue exists that differentiates between what was dealt with in these cases and the “modern” definition of prenuptial agreements.

None of these cases dealt with the financial aspect of things, unlike modern prenuptials. These, on the contrary, were cases that dealt with things like the place of residence of the husband or his autonomy, which, given the status of a husband in Hindu law (as has been discussed in prior paragraphs), could not have been possibly signed away by him.

This brings us back to the definition from Black’s law dictionary, where we see that Prenuptial Agreements are understood to be a way of determining asset and property divisions, in case the marriage dissolves.

This specific type of prenuptial agreement has not been addressed in the cases mentioned previously.

So can we, theoretically, say that the Court has historically struck down only a certain species of prenuptial agreements and it has not contested the validity of financial prenups?

To answer this, we must first answer two more questions:

• Have all Prenuptial Agreements throughout history been struck down?
• Do the prenuptial agreements concerning assets and finances violate “public policy”, “morality”, or “the law” so much so that they should be struck down?

Judicial Recognition of Financial Prenuptial Agreements

Pran Mohan Das Case

To answer the first of these questions, we must take a look at the Pran Mohan Das case from the Calcutta High Court.

A groom agreed to the marriage following a pledge from the bride’s father to bestow a house upon his daughter.

After the marriage, the father transferred the property through an unregistered gift, and the couple occupied and eventually sold the premises after several years.

When the father later attempted to reclaim the house through litigation, the court upheld the prenuptial arrangement as legally sound.

The court distinguished this from “marriage broking”, thereby finding that a legitimate financial settlement in contemplation of marriage is not contrary to public policy.

Recent Bombay High Court View

Even in a recent Bombay High Court judgement, the prenuptial agreement was taken into consideration in a dispute regarding the separation of assets.

A few other cases, including Commissioner of Income Tax v. Mansukhrai More to show us that the judiciary has never imposed a blanket ban on all prenuptials; instead, it has always been a question of fact whether a prenuptial is against public policy or not.

Key Judicial Observations

Case	Key Observation
Paigi v. Sheonarain	Prenuptial agreement regarding residence held unenforceable.
Tekait Mon Mohini Jemadai v. Basanta Kumar Singh	The agreement was held opposed to public policy and Hindu law.
Pran Mohan Das	Financial settlement connected to marriage upheld.
Commissioner of Income Tax v. Mansukhrai More	No blanket prohibition on all prenuptial agreements.

Whether Financial Prenuptials Violate Public Policy

This brings us to the second question.

To understand whether financial prenuptials are against public policy, we must first understand what Public Policy is and how it evolves.

Public policy has no precise definition, as it varies across generations.

It also has a very high threshold, as Lord Atkins had put it:

‘Public policy should only be invoked in clear cases in which the harm to the public is substantially incontestable and does not depend upon the idiosyncratic inferences of a few judicial minds.’

Now whether clarity about asset ownership and financial obligations between prospective couples is or isn’t something that goes against public policy is a question of fact.

In today’s day and age, many a time the spouses are financially independent.

If such spouses voluntarily enter into a contract to safeguard their assets, does it really go against public policy?

Or for that matter, if any pair of spouses, regardless of their financial independence, freely enter into such agreements, should the perceived “public policy” override individual autonomy?

And lastly, if we are to go by Lord Atkins’ threshold of public policy, it is abundantly clear that prenuptial agreements do not cross such threshold.

Goa Model and Prenuptial Agreements

Such an inference can be made by looking at the State of Goa, which definitely is a part of Indian society.

Marriages in Goa are still governed under the unified Portuguese Civil Code, which allows for prenuptials.

Prenuptials among consenting Hindus do not violate the public policy there, nor do they enrage collective public morality.

So the question is, do we really have any evidence to the contrary to show that such is not the case for societies all over India?

Perhaps it is indeed a good time for the authorities to conduct a public policy experiment and find out.

Uniform Civil Code and Prenuptial Rights

Moreover, as the government keeps pushing for a Uniform Civil Code across India, the question of allowing prenuptials in Hindu marriages becomes more necessary.

After all, prenuptials are allowed and generally viewed in a positive light for Muslim marriages.

So if the UCC ever comes into effect, should the same rights be provided to Hindu marriages, or should the Muslim marriages be stifled of their rights, or are we to make sections and subsections of exceptions which ultimately end up defeating the very purpose of a unified code?

The internal contradictions that a UCC would create around prenuptial rights make a definitive judicial or legislative stance on the matter not merely desirable, but inevitable.

Domestic Jurisprudence Supporting Financial Prenuptials

The fact that financial prenuptials are not against public policy also finds strength in domestic jurisprudence.

In the case of Jamna Das v Smt Sahiboo, the Court examined a financial prenuptial agreement relating to maintenance post the breakdown of the marriage.

It is interesting to note that the Court did not strike down the agreement without examination due to reasons such as it being against public policy.

Instead, the court examined its enforceability vis-à-vis the current financial situation of the spouses.

Ultimately the Court did not let the prenuptial be enforced due to want of adequacy in the maintenance amount mentioned, yet it interestingly did not render it illegal.

Conclusion on Validity of Prenuptial Agreements

Ultimately, all of the discussions above can only lead us to one conclusion—SOME prenuptials in Hindu marriages are void.

BUT not ALL prenuptials are void, and in A PART of the Indian society, prenuptials even enjoy statutory backing vis-à-vis even Hindu marriages.

This leads to the conclusion that there exists a grey area for determination, which we shall try to clarify in our next section.

The Prenuptial Agreement: Its Utility And Reasons It Is Pro Public Policy

According to research, in our Indian context, prenuptial agreements can help bring down the average time for a divorce proceeding from 18 to 11.7 months and save up to INR 60,000 per divorce case. [14] Coupling this with the fact that prenuptials are generally seen to foster mutual understanding [15] and reduce the potential for marital disputes [16], we must ask ourselves a question: why exactly, despite all the benefits, are prenuptials seen to go against public policy?

Why Prenuptial Agreements Are Considered Against Public Policy

The answer takes us back to what we’ve already discussed. A Hindu marriage is considered a sacrament, and a prenuptial agreement supposedly foresees the end of the sacrament, due to which it is unenforceable.

Life Insurance Analogy And Prenuptial Agreements

This logic that Prenuptials are equivalent to contemplating dissolution of the sacrosanct marriage is not free from flaws. A simple analogy may be drawn. Life is sacred too. Right to Live is a fundamental right and the Constitution does not give us a Right to Die.[17] Does this mean that we cannot have a Life Insurance as it tantamounts to contemplating death?[18]

Impact Of Section 13B On The Prenuptial Agreement Debate

The judicial apprehension that a prenuptial agreement “foresees” the end of a sacrament is further weakened by the legislature’s own evolution. While the original 1955 Act viewed divorce as a “remedy for a matrimonial wrong” (the Fault Theory), the introduction of Section 13B via the Marriage Laws (Amendment) Act, 1976, fundamentally shifted the paradigm. By allowing couples to dissolve a marriage simply because they both agree it has failed, that is, without proving “fault” like adultery or cruelty, the state has officially recognised that a “sacrament” can be terminated by mutual will.

If the law provides a statutory mechanism for couples to “envision” and execute a divorce through mutual consent, it becomes logically inconsistent to argue that “envisioning” the financial consequences of that same divorce is against public policy. One cannot facilitate the exit (divorce) while forbidding the map (the prenuptial agreement). Furthermore, the concept of Sections 24 and 25 of the HMA, which deal with maintenance and alimony, proves that the Act already mandates judges to perform the very same financial calculations that a prenuptial agreement seeks to simplify. A prenup is, therefore, not a subversion of the law but a proactive alignment with the existing statutory reality of matrimonial breakdown.

Does A Prenuptial Agreement Amount To ‘Collusion’?

Though it may be contended that a prenuptial agreement, by pre-planning financial consequences of divorce, amounts to ‘collusion’ under Section 23(1)(c) of the HMA. However, this contention conflates contingency planning with causative intent. A prenuptial agreement no more ‘colludes’ to dissolve a marriage than an exit clause of a partnership deed ‘colludes’ to fail a business, as both merely prepare for a legally recognised possibility without manufacturing it.

Concerns About Unequal Bargaining Power

Now, while, yes, it may also be argued that prenuptial agreements can be unfair, as in the Indian context especially, the bride has unequal bargaining power, and thus the prenup can be misused by the groom. This logic does not hold water for two reasons.

• Firstly, it is accepted that just because some provision of law can be misused, does not automatically render it invalid.[19]
• Secondly, a prudent judicial approach based on case-to-case analysis can easily curb the problem of potential misuse.

UK Approach: Radmacher v. Granatino Case

We must look to the UK to understand this better. Prenuptials in the UK had been previously void on the grounds of public policy for a long time too, before the Granatino v. Radmacher case. [20]

In that landmark decision, the Court established a three-pronged test to ensure the enforceability of the prenuptial arrangements.

Requirement	Explanation
Informed Consent	The agreement must be a product of informed consent, executed voluntarily and devoid of any coercive pressure or undue influence.
Financial Disclosure	The parties must possess a comprehensive understanding of the contract’s implications, backed by a transparent and total disclosure of all financial assets.
Fairness Assessment	The court must ensure that enforcing the agreement would not result in an unconscionable outcome at the time of separation.

Finally, the court must perform a fairness assessment, ensuring that enforcing the agreement would not result in an unconscionable outcome at the time of separation, that is, a determination centred on the principles of financial need, equitable compensation, and the fair sharing of assets. This “fairness test” is, of course, very broad, and something similar, if adopted by the Indian judiciary, can be used to curb the potential misuse of prenups.

While it is undeniable that provided socio-economic realities – persistent financial dependence of women, entrenched patriarchal family structures, and the coercive undercurrents of dowry negotiations – mean that a woman entering into a prenuptial agreement may not always be doing so as a truly free and informed party, such concerns are better addressed through systematic regulations instead of blanket prohibitions; and such systemic regulations, of course, can be thought of and modelled based on international standards like Radmacher.

Benefits Of Prenuptial Agreements In India

• Can reduce divorce proceedings from 18 months to 11.7 months.
• Can save up to INR 60,000 per divorce case.
• Fosters mutual understanding between spouses.
• Reduces the likelihood of marital disputes.
• Provides clarity regarding financial arrangements.
• Aligns with existing legal realities relating to divorce and alimony.

Judicial Observation On Prenuptial Agreements

reasons…’ [21] So in essence, it is a statistical fact that prenuptial agreements are generally beneficial. A recent observation of Justice Harish Kumar from the Patiala House Court is quite fit in that context. While adjudicating on a long-drawn divorce case, he said, ‘The time has come to make compulsory prenuptial agreement to be executed before the appointed authority after counselling of the parties about the possible risk of marriage going haywire for a variety of reasons…’ [21]

Conclusion: Rethinking Public Policy And Prenuptial Agreements

public policy? So how exactly are financial prenups still to be considered against public policy? It is high time to perhaps rethink our stance.

The Concluding Stance on Prenuptial Agreements

According to Sir Henry Maine, the movement of progressive societies has always been a movement from “status” to “contract”. [22] Prenuptials have been traditionally viewed in a negative light under Hindu law primarily because of the indissoluble status of the Hindu marriage. This status, though still alive, has been diluted over time through insertions of contractual elements in the Hindu marriage laws, like provisions for divorce and restitution of conjugal rights. According to my view, prenuptials will merely serve as one more progressive step towards this gradual transformation in the status of Hindu marriage.

Current Position of Indian Matrimonial Law

The Indian matrimonial law at present has prioritised statutory protection over private financial arrangements. [23] This is perhaps also the reason the Hindu Marriage statute does not explicitly recognise prenuptials, yet the question still remains: if a private financial arrangement between consenting spouses that is not unfair or does not contravene any provision of the law exists and if such an agreement were to be enforced, where exactly does the problem lie?

Prenuptials can, just like any other contract, operate freely within the ambit of the law; after all, as already discussed, prenuptials are both cost- and time-saving if marriage dissolution ever takes place, and the “fairness” and legal validity of prenuptials can always be ensured through a test akin to the Radmacher test adopted in the Indian context.

Judicial Approach to Prenuptial Agreements

Moreover, it would also be wrong to say that the Courts of India have never examined financial Prenuptial Agreements before, as they have already done so, judging the agreement on its merit rather than completely dismissing it.[24]

Key Observations on Prenuptial Agreements in India

So essentially:

• The nature of Hindu marriage has evolved and is evolving from a complete sacrament to a sacramental contract.
• No provision in Hindu law explicitly bars prenuptial agreements.
• The instances of courts declaring prenuptials void have been based on public policy arguments, and such instances are limited primarily to a specific type of prenuptial agreement.
• Evidence suggests that prenuptial agreements are generally beneficial for all parties involved.
• There exists an international reference for a framework for enforceable prenuptials.
• The model of prenuptial agreements is not a stranger to Indian society, as states like Goa have already had it for decades.

Summary of Key Findings

Issue	Observation
Nature of Hindu Marriage	Evolving from a complete sacrament to a sacramental contract.
Legal Prohibition	No explicit provision under Hindu law bars prenuptial agreements.
Judicial Treatment	Courts have examined prenuptials on their merits rather than rejecting them outright.
Public Policy Concerns	Limited instances where specific prenuptial clauses have been declared void.
International Practice	Several jurisdictions provide enforceable frameworks for prenuptials.
Indian Experience	Goa has long recognised a form of matrimonial property arrangement.

Future of Prenuptial Agreements in India

All of these statements lead us to only one logical notion: ideally, prenuptials should not be declared illegal or void prima facie, but instead, their enforceability should be a question of fact.

As a country like India grapples with over 30,000 marriages per day [25], the question is no longer whether India will eventually recognise financial prenuptial agreements; it is rather only a question of when and whether that recognition will come through further judicial evolution or concrete legislative intervention. After all, India deserves a definitive YES or NO to prenuptial agreements.

References

1. Prenuptial Agreement, BLACK’S LAW DICTIONARY (11th ed. 2019).
2. Jyoti Yadav, Hindu Marriage: Analysing Legal Framework, Practices, and Case Law, 12 INT’L J. CREATIVE RSCH. THOUGHTS c288 (2024).
3. POONAM PRADHAN SAXENA, FAMILY LAW LECTURES: FAMILY LAW I § 2.2 (1st ed. 2011).
4. Paigi v. Sheonarain, 1885 SCC OnLine All 24.
5. Tekait Mon Mohini Jemadai v. Basanta Kumar Singh, 1901 SCC OnLine Cal 60.
6. Tekait Mon Mohini Jemadai v. Basanta Kumar Singh, 1901 SCC OnLine Cal 60, ¶ 20.
7. Pran Mohan Das v. Hari Mohan Das, 1924 SCC OnLine Cal 94.
8. Sunita Devendra Deshprabhu v. Sitadevi Deshprabhu, 2016 SCC OnLine Bom 9296 (Goa Bench, applying Portuguese Civil Code).
9. CIT v. Mansukhrai More, (1988) 174 ITR 703.
10. ONGC Ltd v. Saw Pipes Ltd, (2003) 5 SCC 705.
11. Fender Appellant and St John-Mildmay Respondent, [1938] A.C. 1.
12. Amrita Ghosh & Pratyusha Kar, Pre-Nuptial Agreements in India: An Analysis of Law and Society, 12 NUJS L. REV. 229 (2019).
13. Jamna Dass v. Sahiboo, 1974 SCC OnLine HP 27.
14. Anuradha Girme & Utpal Gharde, Why Prenuptial Agreements are a Necessary Evolution in India’s Marital Laws?, 7 INDIAN J.L. & LEGAL RSCH. 5338 (2026).
15. Prenuptial Agreements: What the Law Allows, AM. BAR ASSN.
    URL: https://www.americanbar.org/groups/family_law/resources/family-advocate/archive/what-prenuptial-agreement/
16. Id.
17. Gian Kaur v. State of Punjab, (1996) 2 SCC 648.
18. Tanmay Patnaik, Are Prenups Enforceable in India? 4 Narrow Pathways to Legally Bind Pre-Nuptial Intent and Protect Wealth, THE ECONOMIC TIMES (Nov. 2, 2023).
    URL: https://economictimes.indiatimes.com/wealth/plan/are-prenups-enforceable-in-india-4-narrow-pathways-to-legally-bind-pre-nuptial-intent-and-protect-wealth/articleshow/104899539.cms
19. LAW COMM’N OF INDIA, REP. NO. 243, Section 498A IPC ¶ 7.1 (2012).
    “Its object and purpose cannot be stultified by overemphasising its potentiality for abuse or misuse. Misuse by itself cannot be a ground to repeal it or to take away its teeth wholesale. The re-evaluation of §498A merely on the ground of abuse is not warranted.”)
20. Granatino v. Radmacher (formerly Granatino), [2010] 3 WLR 1367, ¶ 3.
21. Time to Make ‘Pre-Nup Pact’ Compulsory, Says Delhi Court, TIMES OF INDIA (Nov. 1, 2023, 9:44 AM IST).
    URL: https://timesofindia.indiatimes.com/city/delhi/time-to-make-prenup-pact-must-delhi-court/articleshow/104870242.cms
22. HENRY MAINE, ANCIENT LAW (1861).
23. Preeti Singh, Pre-Nuptial Agreements In India: An Idea Ahead Of Its Time Or A Practical Necessity?, LIVELAW (Feb. 3, 2026, 1:20 PM).
    URL: https://www.livelaw.in/law-firms/law-firm-articles-/pre-nuptial-agreements-in-india-an-idea-ahead-of-its-time-or-a-practical-necessity-521648
24. Supra note 13.
25. Sahiba Sachdev, The Flourishing Indian Wedding Industry, INDIAN RETAILER (June 11, 2010).
    URL: https://www.indianretailer.com/article/whats-hot/trends/The-Flourishing-Indian-Wedding-Industry.a247