Contracts are an intrinsic part of the human life. They are involved in almost
all of our day-to-day activities. Explaining in the words of Hugh E. Willis,
when there is a promise or a set of promises which create a legal obligation and
has to be performed and if in any case this obligation is not adhered to, the
law provides remedies for the same. The origin of a contract is from an offer
which is a promise with a condition that the offeree can either agree to or not
and if he/she agrees then an agreement is formed between the two parties.
All these terms related to contracts and formation of contracts have been best
defined in the 1872 act named Indian Contract Act.
Section 2(d) of the act says that when a promise is in place and as a result of
such promise the promisee does has done or refrained from doing something or
does something or refrains from doing something or promises to do so in the
future, this can be a called a valid consideration for the promise. This
presence of a lawful and valid consideration makes the set of promises an
agreement as put in section 2(e). As clearly put in section 2(h) an agreement
which the law can mandatorily enforce is called a contract.
Before we delve further into our topic, we must give a close look to one of the
most important sections of the Indian Contract Act, Section 10, which explains
all the essentials that are required to make any agreement a contract. It says:
All agreements are contract if they are made with the free consent of parties
competent to contract, for a lawful consideration and with a lawful object, and
are not hereby expressly declared to be void.
The essentials for making an agreement a contract as explained by the
above-mentioned section are:
- There should be a freely obtained consent of all the parties of the
- The parties must be of a legal competency where the law permits them to
give their consent for an agreement.
- The agreement should have been formed for a lawful object only. If the
subject matter of the agreement itself is not lawful then the agreement
cannot become a contract.
- The consideration that has been agreed upon by the parties in such
agreement must be lawful and must hold some value in the eyes of the law.
Now that we have dealt what the terms ‘Agreement’ and ‘Contract’ actually mean,
we can delve into the topic of this project which is prenuptial agreements and
their validity in Indian context.
As defined by Black’s Law Dictionary, Prenuptial agreements which are also
called antenuptial agreements are agreements that are entered into by parties
before their marriage to decide and resolve all issues of property, support and
asset division between them in case the marriage ends by way of divorce or is
caused by a spouse’s death.
In a world where rate of divorces is at an all-time high, the prenuptial
agreements have become an extremely important tool for avoiding future conflicts
among spouses. Despite this, the position of prenuptial agreements in India is
not well defined. There is an absence of a clear legislation on this matter and
there is no clear stance of the courts or of the policy makers of the nation. In
this paper, an attempt has been made to critically analyse this position and the
conflicting views regarding prenuptial agreements.
Rules and Acts that govern marriages in India
The Hindu Marriage Act
The Hindu Marriage act, 1955 is a parliament act enacted to govern marriages in
Hindus and also other religions, namely Buddhists, Jains and Sikhs, and also the
marriages of people who have converted to any of these religions. This law came
as a replacement of the Sastrik Law and the addition made here was that this act
also governs the separation and divorce of these religions.
Muslim Personal Law
The Muslim personal law which, as the name suggests, is not a parliamentary law,
governs the Muslim marriages and also the succession and inheritance processes.
The divorce and separation are covered in a separate act of 1939 named
Dissolution of Muslim Marriages Act
Special Marriage Act
The 1954 Special Marriage Act which originated in the late 19th century is a
legislation that governs the marriages of all Indians living in India or abroad
irrespective of their personal faith and religious beliefs. A noteworthy point
here is that in any marriage solemnized under this act, none of the Personal
laws can be said to be applicable.
Status of Prenuptial Agreements in context of Public Policy
With modernisation in the Indian society a lot of changes were witnessed and one
of these changes was seen in the status of women. Women became more empowered
and self-reliant enough to have the capacity to leave a marriage that is not
working due to some issue. At the same time the social stigma about divorces has
decreased for all the genders over the years and this has led to an increase in
the number of divorce cases and this makes the prenuptial agreements quite
Prenuptial agreements make the entire process of division of assets
between separated spouses much smoother and save the parties from the trouble of
going to the courts for years and spending lots of money as legal fees.
Prenuptial agreements have not been mentioned specifically in any of the
personal laws and there is no specific legislation regarding it.
The Dissolution of Muslim Marriages Act
deals with the rights that Muslim
women have after getting a divorce and section 40 of the Divorce Act
which applies to Christians mentions explicitly that if a prenuptial agreement
exists then the district court may take it in consideration if it deems fit to
do so while discussing separation of spouses.
Contrary to this, in Hindu belief,
marriages are considered to be of sacrosanct nature and not of a mere
contractual nature and this makes the entire process relating to prenuptial
agreements more complex. As prenuptial agreements are of contractual nature, we
can take it to be governed by the Indian Contract Act of 1872 but there is a
Section 23 of the act talks about what considerations or objects
cannot be called lawful and its clause 5 mentions that if the object of the
agreement is found to be against public policy in the eyes of the law then it
shall be termed unlawful. Due to this very reason, the Courts have time and
again declared prenuptial agreements to be void on account of being opposed to
public policy but it is noticeable that this has been happening mostly in cases
where the personal law does not prefer separation of spouses, like in Hindu law.
In Jewish religion where the ‘Ketubah’ marriage contract is necessary for all
marriages, the groom specifically signs a prenuptial agreement to safeguard the
financial condition of the wife in the unfortunate event of separation or death
of the husband. In the Islamic religion too, marriages are regarded to be
civil contracts and thus Islamic marriages may have specific prenuptial rights
with the only condition being that both parties must give their consent for the
Despite this, the underlying statement remains that any such agreement must not
be opposing public policy and this makes it important for us to see what
judicial proceedings say about this via different cases decided by the courts
over the years.
Judgements on Prenuptial AgreementsWhere Prenuptial Agreements were held to be invalid:
- In Tekait Mon Mohini Jemadai v. Basanta Kumar Singh case of the
Calcutta High Court, the husband had signed a prenuptial agreement that he,
along with his parents, would live is the house of his mother-in-law forever but
some differences arose between the two families after the couple had been
married for 15 years and thereafter the husband moved out and demanded that his
wife should also leave her house and should come to live with him. When Mon Mohini challenged this in court, the HC held that as this prenuptial agreement
made an attempt to control the rights of the husband given to him by the Hindu
law, this agreement was against the policy and thus was declared to be void.
- In Krishna Aiyar v. Balammal, the couple was already separated but
the husband desired to get back together and so for restitution of his marital
rights he filed a suit. Soon after, the couple decided among themselves that
they would start living together and the husband that in the event of any future
separation he would pay an alimony amount to the woman. This agreement was held
to be not prenuptial as the wife never returned to living a married conjugal
life. More importantly, another point that the Madras High Court brought up was
that it referred to the Mon Mohini case and reiterated that such an agreement
was against the marital obligations that are envisaged in the Hindu law and that
this agreement was void as it talked about a future separation and this was said
to be against public policy.
- In Sribataha Barik v. Musamat Padma, the main issue of contention
was just like the ‘Mon Mohini’ case. In an agreement before the marriage the
husband had promised that he would reside in his wife’s mother’s home but after
a few years he decided to leave the house and live in his mother’s house which
was also in the same village. When challenged in the Orissa High Court, the
court referred directly to the Mon Mohini case and declared that this agreement
was against the provisions of both, public policy and the Hindu law and thus was
invalid. The court also passed the decree that the wife and their child must
reside in the husband’s house.
- In the case of Bai Fatma v. Ali Mahomed Aiyab, an agreement had been
formed between a Muslim man and a Muslim woman that said that in the event of
their separation in the future, the husband would pay a pre-decided amount to
the wife as maintenance. The Bombay High Court referred to English law here and
held that this agreement by its language anticipated and to a certain extent was
encouraging future separation and that was clearly against public policy which
made the agreement invalid.
A point to be noted here is that right now the stance of the same English law,
which was referred here to declare the agreement invalid, is that prenuptial
agreements should be encouraged as they give autonomy to the parties involved
which is of great value and also that such agreements save a lot of time for the
Where Prenuptial Agreements were held to be valid
- In Pran Mohan Das v. Hari Mohan Das, a man agreed to
marry a woman in return for a promise made by her father that he
would gift a house to his daughter. The delivery of house was
completed at that time and the couple acted as the home owners for
some time, after which they sold off the house. The father sued them
for this but the Calcutta high court pointed out that as there is
the estoppel of past performance applicable here and more importantly as the
nature of this agreement was not such that it could be held to be
against public policy and thus the court said that the prenuptial
agreement stands valid.
- In yet another case presented before the Bombay High Court, Bai
Appibai v. Khimji Cooverji, the court went against the judgements of the ‘Mon Mohini’ case and the
‘Krishna Aiyar’ case and
said that those would not be valid because although Hindu law
regards the husband as a God figure for the wife, it does not permit
the husband to abandon his wife and child or treat them poorly.
These cases can not be said to be in violation of or opposed to public policy as
here the husband was the one who had deserted the wife. Thus, the
court ruled in favour of the wife’s demand of the separate residence
and maintenance but in doing so it added a condition of chastity for
the wife, which did not make much sense there.
- In the case of Mohd. Khan v. Mst. Shahmali, the would-be
husband had agreed to live as a khana damad in the house of her
wife’s father. Another condition attached to this was that if the
husband would leave the house then it would lead to becoming a valid
ground for divorce and also, he would pay to some money in order to
compensate the wife’s father for the money spent on the ceremonies
in their wedding.
Later on, the husband refrained from performing his obligations and fled the
house for four years. When this case was brought Jammu & Kashmir High Court, the
court said that as Muslim law itself talk about the concept of khana damad and it is also a vey common practice in the region, so this agreement could not be held invalid.
The court also held that even though this agreement seems to be
against Muslim Law provisions by talking about a possible future
separation, it is not and thus is as a valid ground for divorce because here
the husband had refrained from performing his part.
An analysis of all the afore-mentioned cases clearly indicates how there is no
fixed position of the courts of India when it comes to prenuptial agreements.
The entire burden of determining whether a prenuptial agreement is valid or not
has been put on the principle of public policy which is a very vague term. The
application of ‘public policy’ is so subjective that even similar set of facts
end up getting non-uniform judgements, even by the same courts in some cases.
Change is an intrinsic part of this world and changes never exist in isolation.
There is always a series of changes caused by one single one of them. Now the
change in status of marriages is not a very small one. It has serious
implications and one of these implications is that a lot of modern-day marriages
end up in divorces. Even in these conditions, India does not a single
legislation dedicated to prenuptial agreements which prove to be a very
significant part of any divorce these days. This absence of legislation and
policies eventually leads to a lot of ambiguity and non-uniformity.
Administering justice in case of prenuptial agreements by the help of the
‘public policy’ clause of the Indian Contract Act has proved to be quite a
far-fetched and vague approach. The need of the hour is deliberation, policy
making and legislative action on this subject. Countries like England were far
quicker than us to adapt to these changes for the couples’ good as well as for
the greater good. It’s high time we adapt to these changes and India brings
forth a law dedicated specifically to prenuptial agreements and covers each and
every aspect of it.
- Hugh E. Willis, Restatement of the Law of Contracts of the American Law
Institute, 7 ILJ. 429, 430 (1932).
- The Indian Contract Act, 1872, No. 9, Acts of Parliament, 1872 (India)
- Black, H. and Graner, B., 2004. Prenuptial Agreements. In: Black's Law
Dictionary, 8th ed. [online] West Group, p.3744. Available at: [Accessed 11
- Aggarwal, N., 2016. Marriage Registration Laws In India - Complete Legal
Guidelines. [online] iPleaders. Available at: [Accessed 11 January 2021].
- Vakilsearch. 2016. Muslim Marriage Law In India: Formalities, Polygamy,
Divorce, Remarriage - Vakilsearch. [online] Available at: [Accessed 11
- Supra note 7
- Supra note 3
- My Jewish Learning. n.d. The Ketubah, Or Jewish Marriage Contract - My
Jewish Learning. [online] Available at: [Accessed 11 January 2021].
- Tekait Mon Mohini Jemadai vs Basanta Kumar Singh, (1901) ILR 28 Cal 751
- Krishna Aiyar vs Balammal, (1911) ILR 34 Mad 398
- Sribataha Barik vs Musamat Padma, AIR 1969 Ori 112
- Bai Fatma vs Ali Mahomed Aiyab, (1912) 14 BOMLR 1178
- Radmacher v. Granatino, (2010), UKSC 42
- Pran Mohan Das And Ors. vs Hari Mohan Das And Anr., (1925) AIR 1925 Cal
- Bai Appibai vs Khimji Cooverji, (1936) 38 BOMLR 77
- Mohd. Khan v. Mst. Shahmali, AIR 1972 J&K 8