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Prenuptial Agreements in the Indian Context: A Departure from Traditional Marital Norms

Prenuptial agreements, colloquially termed as "prenups," have long been a staple in Western societies, offering couples a means to delineate the allocation and distribution of assets and properties in the event of divorce or separation. However, in the Indian context, the validity and applicability of prenuptial agreements remain shrouded in ambiguity and legal uncertainty. This article aims to dwell in on the legality and validity of the prenuptial agreements in the Indian context along with the challenges it puts forth before this tremendously potent economy.

Understanding Prenuptial Agreements

Simply put, a prenuptial agreement is a contractual arrangement entered into by prospective spouses prior to marriage, outlining the division of assets and property post-marriage. Its primary purpose is to preemptively address potential conflicts and uncertainties regarding asset distribution, especially in cases involving jurisdictional disputes between countries.

Validity in India: A Legal Void

Despite the prevalence of prenuptial agreements in other jurisdictions, India lacks specific legislation governing their validity and enforceability. Indian courts have historically exhibited reluctance in upholding prenuptial agreements, citing concerns that such agreements contravene public policy. This reluctance stems from the perception that prenups undermine the sanctity of marriage and perpetuate inequalities, particularly regarding financial matters.

Applicability to Assets in India: A Legal Quandary

In practice, assets and properties agreed upon in prenuptial agreements are often distributed according to the terms laid out therein. However, the absence of legal provisions recognising prenups pose challenges in enforcing these agreements in Indian courts. Section 23 of the Indian Contract Act,1872, explicitly lays down that agreements must not be in violation of public policy.

As infamous for being in derogation of the public policy, prenups do not have legal enforceability in India. The underlying impression which is so subtle is the presumption that the marriage will not last. While the Indian courts have considered the agreements in certain cases and parties may voluntarily adhere to the terms of the agreement, its enforceability remains uncertain and subject to judicial interpretation.

Pros And Cons Of Prenuptial Agreements: The Indian Context

Weighing the Benefits and Drawbacks of Prenuptial agreements, commonly known as prenups, offer couples a way to establish financial and property arrangements before marriage. While these agreements can provide clarity and protection, they also come with potential drawbacks. Let's explore the some of the pros and cons of prenuptial agreements:


  • Clarity and Certainty: Prenups outline the division of assets and liabilities in the event of divorce or separation, providing clarity and certainty for both parties.
  • Asset Protection: Prenuptial agreements can safeguard pre-marital assets and protect inheritances, businesses, and investments from being divided during divorce proceedings.
  • Debt Protection: Prenups can specify how pre-existing debts will be handled, preventing one spouse from being saddled with the other's liabilities after marriage.
  • Customization: Couples have the flexibility to tailor prenuptial agreements to their specific needs and circumstances, addressing concerns such as spousal support and property rights.
  • Avoiding Lengthy Legal Battles: By establishing clear guidelines upfront, prenups can help avoid costly and protracted legal battles during divorce proceedings, saving time, money, and emotional stress.


  • Perceived Lack of Romance: Some view prenuptial agreements as unromantic or indicative of a lack of trust, potentially straining the relationship before marriage even begins.
  • Complexity and Cost: Drafting and negotiating a prenup can be complex and costly, requiring legal expertise and comprehensive financial disclosure from both parties.
  • Enforceability Challenges: Prenuptial agreements may face challenges to enforceability in court, particularly if one party alleges coercion, duress, or unconscionability at the time of signing.
  • Potential for Inequity: Prenups run the risk of being unfairly biased towards one party, especially if there is a significant power imbalance or one spouse lacks adequate legal representation.
  • Limitations on Future Financial Rights: Prenuptial agreements may restrict or eliminate certain financial rights, such as spousal support or equitable distribution, which could leave one spouse financially vulnerable in the event of divorce.
Navigating the Legal Landscape
The absence of specific legislation governing prenuptial agreements in India underscores the need for clarity and legal reform in this area. As societal norms evolve and globalisation fosters cross-border marriages, the recognition and enforcement of prenuptial agreements become increasingly pertinent.

The enforcement of prenups often give rise to matters of private international law, making it difficult to enforce as jurisdiction of one country might accept the agreement and enforce it whereas, the another would refrain form acknowledging and enforcing such agreements. Addressing the legal void surrounding prenups requires legislative intervention and judicial scrutiny to ensure equitable outcomes and uphold the principles of justice and fairness.

In This Regard, Let's Unpack A Few Cases:
  • In the case of Sunita Devendra Deshprabhu v/s Sita Devendra Deshprabhu, heard in the High Court of Bombay at Goa, the matter revolved around a prenuptial agreement entered into by Raghunathrao Deshprabhu and Sita Devendra Deshprabhu. The agreement outlined provisions for the separation of assets between the parties. Following the death of Raghunathrao Deshprabhu on November 10, 1987, Sita Deshprabhu also passed away. It was argued that the prenuptial agreement governed the distribution of assets as there were no pre-existing rights established. The court, in considering the issue of asset separation, referred to the prenuptial agreement between Raghunathrao and Sitadevi. Notably, the judgment did not address the validity of the prenuptial agreement itself.
  • In the case of Tekait Mon Mohini Jemadai v/s Basanta Kumar Singh [(1901) ILR 28 Cal 751], the dispute centered around a prenuptial agreement stipulating that the husband was not permitted to relocate his wife from her parental home. The court observed that Hindu law mandates a wife to reside with her husband wherever he chooses to live. Consequently, an agreement preventing the husband from moving his wife from her parental home to their own would contravene Hindu law. The court deemed such an agreement unlawful and therefore void, ultimately refusing to uphold its validity.
  • In the case of Krishna Aiyar v/s Balammal Madras High Court [(1911) ILR 34 Mad 398], the agreement was made post-marriage and pertained to the separation of the husband and wife. As the parties were Hindus, the court applied Hindu law to assess their marital obligations. The central issue was whether an agreement between spouses to live separately was valid under Hindu law. The court concluded that such an agreement was prohibited by Hindu law and against public policy, rendering it unenforceable. Consequently, the agreement was declared invalid by the court.

Conclusion: Toward Clarity and Certainty
Prenuptial agreements represent a departure from traditional marital norms, offering couples a mechanism to proactively address financial matters and mitigate potential disputes. In the Indian context, the absence of legal clarity surrounding prenups underscores the need for legislative reforms and judicial guidance to navigate this complex terrain. As India embraces progressive legal frameworks and adapts to changing societal dynamics, the recognition and enforceability of prenuptial agreements will play a pivotal role in promoting marital autonomy and safeguarding individual rights.

However, it is pertinent to note here that, since India bases its law over morality, it has a long way till its acceptance of prenuptial agreements. An agreement that predetermines the division of assets between man and wife, is negatively construed as an indicator of a short-lived marriage. It portrays ,indeed, marriage as a contract rather than a sacred institution, which is contrary to the beliefs of people in India. Change is inevitable, yet it would be worth seeing the the progress of the legislation on this subject.

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