Accentuation of sacred character of marriage in India and positioning of this
sacred bond profoundly in social, cultural and religious facets of Indian
circumstances, reflects the unique feature of marriage in India which has
hitherto subdued the effect of contractual nature of marriage.
For quite a long
period of time, marriage in India were regarded as bond or union of two families
rather than that of two individual equal parties. Certainly, it cannot be said
that the notion has completely withered away from entire India, but there has
been a significant change in idea of marriage.
The institution of marriage in India is governed by various personal laws
providing a blend of rules of wide connotations and characters making remedy to
matrimonial disputes revolving an intricate cycle. Often, matrimonial disputes
result in astronomical number of cases in Indian Courts. This also causes
expensive litigation and cumbersome process, enervating already aggrieved
In Indian courts, judges and counsellors endeavour to strike out
conciliation between parties in disputes arising out of marital relations. In
fact, proceedings in the family courts have flexibility and an informal conduct
that is conducive for settlements between the parties. When parties agree to
a settlement, consent terms between the parties are signed reflecting
Thus, Consent note paves the way on which pronouncements of the
Family Courts in India depends. In western world, the idea of marriage has more
or less evolved as a contractual understanding between the spouses.
times, martial relations are guided by an agreement specifying the rights and
duties of both the spouses in uncertain circumstances, mostly after marriage.
Such agreements are accorded before the marriage with consent of both the
parties as important element. As such the consent terms during disputes are
sparingly looked upon, and judgements are pronounced on such agreements, more
commonly known as prenuptial agreements. The aim of such agreement is to provide
protective covering to the interests of both the parties equally.
Though in India, such agreement between the families of the spouses existed in
annals of history but were never formalised. Various courts have held such
agreements to be invalid, rather mechanism of bringing consensus through
consent terms during the disputes is given prominence for the settlement and
resolution of matters.
Consent Note, Matrimonial Disputes and Remedies
Marriage in India is revered as a sacred bond (samskara) and a union of two
souls. Though held to be everlasting, marital disputes may cause an end to the
relationship making parties involved in legal battle for their rights. In India,
when martial affairs are marred by conflicts between the two parties, the matter
often ends up for resolution at Family Courts.
Family courts in India, could be
ascribed as the most notable means to deliver justice when conflict in marital
affairs between a couple arises. This is due to rigid legal mechanism and less
propensity of parties to adopt for other means such ADR, mediation and
When, in some cases, matrimonial disputes pop up between husband and wife,
certain matrimonial remedies are available under the Hindu Marriage Act, 1955 to
provide relief to the aggrieved spouse.
The remedies may include:
- Restitution of Conjugal Rights (Section 9)
- Judicial Separation (Section 10)
- Void and Voidable Marriage (Section 11 & 12)
- Divorce (Section 13)
- Divorce by Mutual Consent (Section 13B)
The disputing parties in order to amicably resolve the dispute, assent to an
agreement, specifying the consensus to the clauses relating to the dispute. As
consent of both the parties is essential element in such agreement, the
agreement signed by parties during conciliation or matter pendency before the
court is known as consent note or signing on consent terms. The court may pass a
decree based on mutually agreed provisions, which may be referred as consent
In India, disputes and matters have often led to an agreement between the
parties, abating the burden of expensive litigation in courts and making the
process of settlement less cumbersome. Thus, consent note or terms signed by
both the parties, has proved to be a holistic solution to the marital affairs
and disputes, and an effective resolution tool. Though, there have been varied
interpretation to the clauses in consent terms by Indian courts. Below mentioned
are some of the instances –
Priti v. Madansingh
Under case Priti v. Madansingh, the appellant wife had approached the family
court at Nagpur for grant of maintenance and restitution of conjugal rights. The
pronouncement was given in her favour. Also, the respondent husband moved
petition for dissolution of marriage by mutual consent under Section 13B of the
Hindu Marriage Act, 1955.
Mediation and conciliation process under
counselling of a mediator led to signing of consent terms between both the
parties and husband agreeing to deposit Rs. 4,21,000 in the family court as full
and final settlement. Before the family court could pass a decree of divorce by
mutual consent, wife postulated that she is not willing of seeking decree of
divorce, though the Family Court directed her plea to be rejected and dissolved
the marriage under Section 13B.
When the appeal was filed before the Nagpur bench of the Bombay High Court, the
court annulled the decision of the family court. It was argued from the
appellant wife that the amount deposited in family court towards her maintenance
was also not withdrawn by her, so as to set a case against her stance.
counsel of the respondent husband apprised court that the all the conditions
mentioned in the consent terms had been complied by him, and so the decision of
family court is in consonance of consent terms which were mutually agreed upon
by both the parties.
It was held that since no application for decree of divorce
by mutual consent under Section 13B was filed by the parties before the
mediator, the family court was not justified in rejecting the application of
wife regarding withdrawal of her consent regarding divorce by mutual consent.
The family court ought to have permitted appellant wife to withdraw from the
consent terms that were signed before the mediator. Further, the court held that
the consent terms would not have a binding effect until a formal judgement and
decree is passed by the court.
Pirojshah Bharucha v. Hirabai Bharucha
Under this case, the respondent wife applied for fixing her alimony as per Parsi
laws in India. The wife assented under the consent terms agreed that she will
be in no position to apply for alimony at any time in future. A noteworthy
feature of the case reflects that the consent terms were signed between the
parties after a decree of divorce was passed by the court.
The consent terms
included clauses regarding the custody of the children, permanent alimony and
provision for maintenance of the children. But the respondent wife also assented
to consent terms whereby she agreed to give up all her rights to alimony in
The court said that the wife’s right to future maintenance is a matter of public
concern which she cannot barter away. Though consent decree is passed based on
the consent terms mutually agreed upon by the parties, essentially fulfilling
conditions of a valid contract, the contract would be void in the eye of the law
due it being against the public policy. The court held that the particular part
of the consent order is not a bar to wife seeking future alimony from the
Govardhan Kapoor v. Veena Kapoor
Under the case of Govardhan Kapoor v. Veena Kapoor
, the appellant husband
entered into consent terms with the wife to cohabit with her at the time their
marriage is beset by conflicts. The matrimonial home here refers to a flat which
the husband had purchased in the name of respondent wife.
The consent terms
provided that husband would withdraw suit in City Civil Court at Bombay and
declare defendant as rightful owner of the flat, provided that the respondent
and appellant husband would live in the matrimonial home together, that is, in
the said flat. Soon after this, the wife approached the court for granting
decree for divorce on the ground of desertion and cruelty, as well as contended
eviction of appellant from the property, which the city civil court affirmed
The appeal was made in Bombay High Court by the husband and the court said that
as per the consent terms a legal right had been created in the appellant to
reside in the premises. The court held that by the operation of the principle of
res judicata, parties would be estopped from rebuffing from the consent
A prenuptial agreement could simply be put forth as an agreement between the
would-be spouses predetermining the status of property, financial liabilities
and rights of parties in case of future uncertainty which might even extend to
dissolution of marriage. A pre-nuptial agreement should cover the various
aspects of matrimonial disputes that may arise due to breakdown of marriage.
Provided that such agreements should be entered upon by both parties without any
coercion, voluntarily, without duress or undue influence. It forms a
prerequisite for a prenups to be not void of the most essential ingredient in
it, which is free consent.
The advantages of having a planned setup to a marriage in case of its failure,
may provide expedient letting out of other spouse’s life and amicable resolution
to the arising problems. There can be various attributes to this mutually formed
‘exiting plan’. Strikingly obvious, the major advantage could be frugal money
nature. Maintenance and divorce suits result in exorbitant costs causing
financial shrivelling of the litigating parties. Secondly, factor of mutual
consent provides freedom to parties to deliberate upon the rights and
conditions, and decide their position accordingly.
The plight of the parties may
amicably resolve as both the parties consented to the terms of prenuptial
agreements. Lastly, this may help in detection of fraud by either of the spouses
and also intimate for any misrepresentation on the part of another party, as a
prenuptial agreement keeps a check on other party and providing them protection
from such caustic matters.
It is also glaring that prenuptial agreements are not having legal sanctity in
India. But many other countries, like Germany, Canada, Italy and France have
framework for governing matrimonial disputes, especially in the realm of
This mechanism of laws provides for creation or absence
of a marital estate. It may also provide the extent of properties to be
included, questions related to procedure and by whom that is to be managed.
Division and inheritance of the property at the end of the marriage is also
Surveys conducted amongst the divorce lawyers paint a picture that roughly 10%
of marriages, take this pre-emptive action of having prenups.
It is also
revealed that those opting for such a written agreement defining the rights,
duties and interest in property after dissolution of marriage, are mostly from
affluent socio-economic background. It is worth noting that those adopting
for prenuptial agreements as a means to deal with future uncertainties of their
marriage, have forfeited prospective rights that a personal law under Hindu,
Muslim, Christian and Parsi would have provided them. In short, the safety of
individual finances is given priority to the personal law rights.
general course reflects marriage to be a relationship that has been structured
on consent of families of both the parties, and where compatibility and other
related matters are deliberated before the marriage. These all are preceding
steps before a marriage is to be called arranged. So, it can ostensibly be
construed that marriages in India have always been an arrangement of kind, where
consensus is being reached within the relatives of would-be spouses regarding
various aspects of life after marriage. Thus, it can be surmised that the
concept of premarital agreements has always been adhered to in Indian
Consent Note v. Prenuptial Agreement
While agreement reached between the parties during court proceeding or through
the mediator, results in a consent note, there could be alternative course of
similar nature and also involving agreement to resolve matrimonial disputes.
These are generally categorised as prenuptial agreements or premarital
An important character of prenups is that they are formulated by the parties
before the marriage. This differentiates prenups as matrimonial dispute
resolution mechanism from consent terms which are part of proceedings of
matrimonial nature, that is, agreement or terms signed after the marriage has
already taken place.
But the implications of entering into prenuptial agreements based on consent as
an essential component, has not affected the rigidity of personal laws in India
and resolution of disputes are adhesive to the provisions of the respective
personal law to be applied. Therefore, under Indian legal framework, prenuptial
agreements have not been provided legal sanctity. This is in sharp contrast to
consent note, where the agreement is itself initiated under the cycle of laws.
There have been wide interpretations by Indian courts regarding prenups. Under
Mon Mohini Jemadai v. Basanta Kumar Singh
, the agreement provided that
plaintiff husband will never be at liberty to remove his wife from her parental
abode. The court held the agreement to be invalid and stated that it is against
the rule of Hindu personal law and also violates the tenets of public
There have not been wide variety of cases in Indian courts concerning validity
or invalidity of prenuptial agreements. Prime reasons for this could be ascribed
to the taboo assumed to be associated with such agreements. In India, the
society often links arrangement of premarital agreement with lack of mutual
trust amongst the parties. Though, this notion has somewhat changed, but the
lack of validating character of such agreements has resulted in oblivious and
indifferent attitude among parties and the society at large to accept such
Under Commissioner of Wealth Tax v. Shanti Meattle
, court held that an
agreement which provide the spouses a right to live apart is not enforceable.
Also, giving legitimacy to such agreement would lead to end of all marital
rights which a husband could exercise in relation to his wife.Though under
Indian Contract Act, 1872 the prenuptial agreement could be appropriated the
concept of valid contract.
They represent same sanctity as any other contract
entered upon by the parties whether oral or written. This has hitherto
remained as grey area where there is drought of litigation, though it cannot be
assumed that courts would preclude themselves of adjudicating matters related to
contracts entered by the spouses. If consensually entered into, it would be a
persuasive force which will make courts competent to take cognizance of a
prenuptial agreement. Though provisions regarding the fair division of property,
personal possessions and financial assets of the parties would be essential
factors determining the legal sanctity to be provided to a prenuptial
The exception to the acceptance of prenuptial agreements can be ascribed to Goan
law, pertaining to the state of Goa, where it is valid to have an agreement
defining the financial division of assets between wife and husband in case of
separation or divorce.
In a recent judgement in 2016, the High Court of
Bombay at Goa, in the case Sunita Devendra Deshprabhu v. Sita Devendra
, took into consideration the Prenuptial agreement formed by the
consent of husband and wife, while deciding the matter related to division of
property and other assents between the parties. Though it can be concluded
that there is no legal backing to the safeguards which a prenuptial agreement
may provide, still the agreement would have a striking force reflecting the
intent of parties to their marriage and disputes which arise out of
Role of Family Courts in Conciliating
The Family Courts Act, 1984 have been cardinal in effectively dealing with
matters of matrimonial nature. The purpose of the Act is to establish Family
Courts to promote conciliation and secure speedy settlement of disputes relating
to marriage and family affairs.
The main objectives for setting up of Family
Courts could include, institution of a mechanism for conciliation of dispute, to
provide an inexpensive remedy and having flexibility cum informal atmosphere in
the conduct of the proceedings. This has been clearly specified in Section 9
of the Family Courts Act. Section 9 of Family Court Act, 1984 provides:
Duty of Family Court to make efforts for settlement-
- In every suit or proceeding, endeavour shall be made by the Family Court
in the first instance, where it is possible to do so consistent with the
nature and circumstances of the case, to assist and persuade the parties in
arriving at a settlement in respect of the subject-matter of the suit or
proceeding and for this purpose a Family Court may, subject to any rules
made by the High Court, follow such procedure as it may deem fit. -(1) In
every suit or proceeding, endeavour shall be made by the Family Court in the
first instance, where it is possible to do so consistent with the nature and
circumstances of the case, to assist and persuade the parties in arriving at
a settlement in respect of the subject-matter of the suit or proceeding and
for this purpose a Family Court may, subject to any rules made by the High
Court, follow such procedure as it may deem fit.
- If, in any suit or proceeding, at any stage, it appears to the Family
Court that there is a reasonable possibility of a settlement between the
parties, the Family Court may adjourn the proceedings for such period as it
thinks fit to enable attempts to be made to effect such a settlement.
- The power conferred by sub-section (2) shall be in addition to, and not
in derogation of any other power of the Family Court to adjourn the
The act provides for counsellors who are to assist the court in discharge of its
function. Though role of counsellors is completely unclear under the Act.
Whether they are to counsel litigants prior to the filing of the cases or after,
and whether the judge and the counsellor can assist simultaneously or not, are
some of the grey areas where the Act seems to have lacunae.
The framework of Family Court Act makes it overtly possible that there is a
shift from formal adjudication of disputes based on rights to conciliation of
disputes based on the needs of the individuals concerned as well as those of the
There had been presumption and later manifestation to the notion that
family disputes are well-suited to alternative forums because the conflicts
often involve a complex interplay of emotion and legal complainants. This has
led to moulding of structure of Family Courts in India as per the flow of
Encouraging a simplified procedure for matrimonial remedies is, therefore,
imperative for sustaining a healthy perception of marriage which is free of any
discrimination and violence.
There is the assumption of equality between the parties to a dispute.
has nowhere taken into consideration the basic discrepancy of power between men
and women. When two unequally placed persons are brought to the negotiating
table, it is only natural for the stronger of the two parties to take advantage
of the situation.
The concept of consent note has though created a bulwark for
women, so that the remedy decided or the justice by the court could channel
through her consent. A mediation process ensuing in a mutually agreed terms or
consent terms, can also prevent unnecessary harm to men as well. A frivolous
petition by the wife to implicate husband due to personal grudge towards him,
can also provide husband to effectively phase out the differences and his
innocence in a mediation and conciliation process.
The consent note could be attributed as the most efficacious means for
resolution of disputes under Indian circumstances. Pinpoint scrutinization of
matrimonial cases in India reflects that parties have often resorted to the
signing of consent terms during the pendency of the matter or during the
mediation process, exhibiting inclination for the resolution of matrimonial
dispute by an amicable and peaceful solution.
This disposition of the parties
could be imputed to the myriad of benefits derived from signing of the consent
terms. Mainly among them include, preclusion from incurring expensive litigation
costs, outwitting societal taboo and disreputation, avoiding disgrace towards
Though signing on consent terms could also be reckoned as the only option
available to the parties in matrimonial disputes as a remedy. This encompasses
in its expanse the aspect of prenuptial agreements, which are not given legal
sanctity in India as of now. The prenuptial agreement could provide for all
possible contingencies and possible problems that may arise in future of the
The agreement which is concluded before the marriage itself have found
great significance, especially in Western and European countries. The main
reason for this could be attributed to the open acceptance of contractual nature
of marriage, giving validity to accord of prenup.
Though in India, where sacred
character of marriage is a heavyweight quality that cannot be overlooked to the
contractual nature. In Indian society, signing on prenups is considered or
assumed by the society as prognostication of breakdown of marriage, and also
reflection of lack of faith or trust in the other marital partner.
prenuptial agreements in Indian society. Notwithstanding, the legal system of
India has also not recognised such agreements branding them as against public
policy and/or violating other personal laws.
The deliberation on prenuptial agreement is thus a grey area in India, and
parties could not beforehand decide to have rights and obligations under
marriage. They are instead left with the only alternative of consent note, whose
clauses are agreed after the marriage has already taken place, and that too,
when a dispute has arisen.
This is a lacuna in Indian legal system, though
mechanism of Family Courts has sought to fill this gap. The Family Court Act,
1984 provides for establishment of Family Court with peaceful, equitable and
amicable solution to matrimonial disputes as their objectives. The courts have
been provided aid through counsellors to reach a just and fair settlement of
issues. Also judges and counsellors have been provided legal freedom to conduct
the proceedings in an informal and conducive manner. This is a stimulating force
to better govern matters of matrimonial nature.
The researcher after having deeply analysed realm of consent note or consent
terms and the flexibility it renders in resolving marital affairs under Indian
circumstances, concludes that consent note could be an effective means to reach
a settlement and an amicable resolution of matrimonial disputes.
As it requires
consent of both the parties at dispute, the resolution through a conciliatory
process and its outcome is much more acceptable to the married couple than a
court decree given in absence of such consensus. The mechanism of a consent
could also be utilised to better support the rights of the economically
disadvantaged party, usually women.
Though, consent note is a restricted option
under Indian legal system for mutually resolving matrimonial conflicts. A
solution of a similar kind known as prenuptial agreement is not given legal
sanctity in India. There is sufficient proof to establish that these agreements
can help reduce marital conflict and increase the stability of marriage.
concerning custody of children, divorce procedure or judicial separation were
earlier considered a taboo to discuss, as they had inherent character
implicating lack of mutual trust between both parties.
But the changing scenario
has led many to forego such notion, and place both parties in a better position
to resolve matrimonial disputes, though prenuptial agreements still need
validity under the Indian legal system. Though, the agreement signed between the
parties before the marriage could have scope under Section 10 of the Indian
Contract Act, 1872.
Deliberations need to be made in the sphere of premarital
agreements considering their pros and con, and subsequently if found assisting
in resolution of disputes, granting of legal validity to such agreement should
Family courts play a crucial role in assistance for resolution of dispute by
making every effort to try to strike out a settlement between the parties.
Though, the role of counsellors and judges needs a clear explanation regarding
conciliation between the parties.
Notwithstanding the powers of judges and
counsellors in Family Courts, an amendment in continuously transformative
institution of marriage, makes imperative for this legal mechanism and Indian
legal system, to adapt and modify itself with the changing characteristics of
marital relationship. Also, ADR mechanisms in India need appalling changes, to
gingerly phase out cases of matrimonial disputes.
- Sec. 8 and Sec. 9 of The Family Courts Act, 1984
- Ministry of Law & Justice, Governement of India, https://doj.gov.in/other-programmes/family-courts
- Vijender Kumar, Quest for Prenuptial Agreement in Institution of
Marriage: A Socio-legal Approach, 60 JILI (2018), pp. 406-426
- 2018 BHC 1806
- Sec. 13B of the Hindu Marriage Act, 1955: Divorce by mutual consent
- Supra note 6
- LQ 1945 HC 0107
- Sec. 40 of The Parsi Marriage and Divorce Act, 1936: Permanent alimony
- Supra note 9
- LQ 2010 HC 2358
- Siddharth Manocha, VIABILITY OF PRE-NUPTIAL AGREEMENTS IN INDIA,
LIVELAW.IN (July 29, 2019, 5:12 PM), https://www.livelaw.in/columns/viability-of-pre-nuptial-agreements-in-india-146762
- Supra note 3
- Vijender Kumar, Matrimonial Property Law in India: Need of The Hour,
57(4) JILI 521, 522 (2015).
- Dilshad Billimoria, PRENUPTIAL AGREEMENTS: BUILDING A SAFETY NET AROUND
ASSETS, LIVEMINT (Last visited on July 29, 2019), https://www.livemint.com/Money/ngLavHhlUeaCqDN2xoqa2K/Prenuptial-agreements-building-a-safety-net-around-assets.html
- Akansha Ghose and Pallavi Agarwal, Prenuptial Agreement: A Necessity of
Modern Era, 2(5) INT’L J. OF RESEARCH AND ANALYSIS 21 (2014)
- Supra note 3
- ILR (1901) 28 Cal 751
- Supra note 6
- (2004) SCC ALL 1711
- Supra note 6
- Indian Contract Act, 1872, Sec. 10
- Supra note 3
- Prenuptial Agreement, THE TIMES OF INDIA, January 11 2019. https://timesofindia.indiatimes.com/t10-jan-12-2019/7-prenuptial-agreement/articleshow/67492145.cms
- 2016 (6) BomCR 567
- Supra note 6
- Ministry of Law & Justice, Governement of India, https://doj.gov.in/other-programmes/family-courts. Sec.
9 of The Family Court Act, 1984
- Sec. 6 of the Family Courts Act, 1984
- D Nagasaila, Family Courts: A Critique, 27 ECONOMIC AND POLITICAL
WEEKLY 1735 (1992)
- Law Commission of India, Consultation Paper on Reform of Family Law, p.