What is pre-nuptial agreement?

Pre-nuptial agreement are gaining their popularity in all over the world between young people, who want to protect their asset and reaching to a safe side if in future case their martial bond going to end. There are rising in case of divorce and its bad consequences in current time this is also the reason for people opting for a pre-nuptial agreement. With the modernity of the society in India this agreement going popular day by day.

A pre-nuptial agreement is a type of agreement in which two people who want to marry or going to marry soon make an agreement with mutual consent of each other in which they make certain provision to setting the distribution of their property, asset, liabilities, and also the issue relating to the children, if any situation come which end their marriage.

Overview of pre-nuptial agreement in India:

The progress in the Indian society has results to come many social issue for the women which are necessary to solve for interpretation a suitable democracy in the country in the post independent era. These issue also make the judicial process more accessible and more participating in nature and Indian judiciary always take the first step in the development of the Indian society through their acceptance and judgement. even in many cases the give direction to the legislature to make a necessary law on a issue.

The progression in the judicial system with the social activism make a women more independent and give inner strength to them, Thus a women being capable to walk out from a bad marriage. There has been a tradition in the Hindu society that a women is always blamed for the divorce, however the modernization of the society mke a women more regressive on this social stigma of divorce.

Current status of pre-nuptial agreement in India:

India do not have any law on the pre-nuptial agreement. such agreement are not generally accepted by the Indian people because in India marriages are seem to a belief which is created by the god in the heaven and they do not considered the marriage as an agreement, nevertheless the global people accepted this agreement very commonly and also in Indian society divorce is seen as a big thing. there are also no significant law on this topic in India. the supreme court is quite active in the matter concerning to divorce, has taken no stand on the matter of pre-nuptial agreement. it is not possible to assured that such agreed term will be upheld in the Indian court.

However in India, Islamic marriage which was governed by muslim law has pre-nuptial type agreement in which the both parties signed a agreement in which they have some provision to settle the wife property or money if the marriage is going to end known as mahr.

With respect to Indian law:
As per custom and tradition of Indian society a marriage is a religious bond between two soul and they were created by the god and the judiciary preserve this on several cases like Krishna Aiyar Vs Balammal Case. The court also seen the Hindu marriage as a sacramental rather than a contractual agreement.

With respect to Indian contract act 1872

Although, this agreement fulfilling every requirement of section 10 of Indian contract act 1872, but the court declined this agreement on the basis of its violating the public policy under section 23 of ICA,1872 so it deemed to be void, the judiciary not declear whole agreement to void, there are some clause of agreement like separation clause, child clause these clauses are violating the public policy because divorce and separation of family treated as a disaster in the Indian society, the supreme court made certain patent case for them.

What ought to be law on Pre-nuptial Agreement?

The first argument itself fragile in the validity of the pre-nuptial agreement under the as holy nature of the Hindu marriage law are turn a lot in past few year to include some contractual element. In Hindu dharma divorce and love marriage are not allowed because the Gandharava or present day love marriage are socially disproved as per the Hindu dharma.

The whole concept of the Hindu marriage is based on shastric tradition which only allow the marriage between same religion identity and caste and disapproved the intercaste and Sagotra marriage. however in the present day, Hindu marriage law do not exist in its pure form because there are something change as per the modernization in the society and it�s exist in quasi-sacramental form.

However the main focus of this article is about the validity of this agreement in India and is this agreement violates the public policy?

The section 23 of ICA said that wherein the object of or consideration of an agreement is opposed the public policy, the agreement is said to be unlawful and become void and unforceable. However the ICA or any legislative enactment does not provide any definitional interpretation on the basis of public policy. As a result of this, legal position is setteled in this agreement which patently violate the public policies as they harm the public good.

Changing the Judicial position in India with Respect to Pre-nuptial Agreement

We review some important cases with regard to the religion communities and looked the interpretation made by court on pre-nuptial agreement.

In tekait [2]Mon Mohini Jemadai vs Basanta Kumar Singh the parents of the husband and he itself signed a pre-marital agreement when he was a minor stated in the agreement that he would live in his mother-in-law house after the marriage through out their life but after the 15 years the husband left the house of his mother in law because of some issue and demanded the wife too to left their house and live with him in his residence.

The Calcutta high court held in this case that a pre-nuptial agreement was opposed the public policies and it was also meant that this agreement permanently control the right of husband was whole life as per granted in Hindu law, which is as per the court instigate the couple to separation of their marriage in the future and court held that the pre-nuptial agreement is invalid in this case. [3]

In case of [4] Krishna Aiyer Vs Balammal, Krishna Aiyer (plantiff ) filed a petition for restitution in its marital right, after some day of filing the suit they both are compromised to stay with each other and then the husband also promise the wife to pay some money or marital property in the event if there is separation take place between them in future, however the wife after this agreement never returned to hiss marital life, thus this agreement is not fall under the categories of pre-nuptial agreement.

In this case Madras High Court referred the Mon Mohini Case and declared the agreement is void as it was against the marital obligation under Hindu law. The court held that in this case that the agreement was against the public policy because the future separation clause was mentioned in the agreement.

As the court established in earlier cases, in refusing the pre-nuptial agreement the Indian court gave the reason that it hurt the public policies. in the above cases the impletation of public policy by the court in two different ways. first pre-nuptial agreement override the right and liabilities provide under the Hindu personal law and the custom and tradition under the Hindu law also stuck down on the ground of public policy. second, pre-nuptial agreement in which certain clause maintain for separation or future separation of a marriage also interpretated as against the public policy.

View some more cases about pre-nuptial agreement validity

In the case of [5]Pren Mohan Das Vs Hari Mohan Das, a person agreed to married to a women on the promise of women�s father gift a house to his daughter. after the marriage the plaintiff shifted the possession of the house through the unregistered gift. the couple maintained the possession of house for some year and then sold the house to the other person. the plaintiff later sued the couple for recovery of the house. The court held that the house is a gift given by plaintiff at the time of marriage thus this pre-nuptial agreement is valid on the principal of part.

In the case of,[7] Commissioner of Income Tax vs Mansukhari More, the Calcutta high court held that the transfer of the property in a pre-nuptial agreement is justified if it is for accomplishment of the commitment.

In the case of [8]Sandhya Chatterjee vs Salil Chandra Chatterjee, this case help in understanding that how a logical contract between a husband and wife will not opposed the public policy under the pre-nuptial thus enforceable. In this case Calcutta high court referring the case of printing and Numerical registering co. vs Samposan held that declearing a contract to invalid under the tab of against the public policy, court also considered that the public policy in term of voluntary contract between the adult person, thus it is observed that with the modernization in the society, law also have to change with the society to fulfilling the purpose of justice and a wife can demand for separate maintenance when she was not satisfied with the marriage and this is not considered against the public policy.

The above cases show that with time as the society change the judiciary also changed their direction in Hindu marriage law and pre-nuptial agreement, in most cases the judiciary not validated the pre-nuptial agreement by themselves, instead of doing this judiciary adopt some method to interpretation the pre-nuptial agreement in India. they by enforcing the term of pre-nuptial agreement with other legal principal and by creating some exception within purview of the judicial precedent which have a view that pre-nuptial agreement as invalid due to they are against the public policy.

Conclusion
Pre-nuptial agreement have popular in across the globe like in most of the western countries, this agreement gives you stability in life if something happen in the martial life and the marriage going to end but in India thing are going to different they connect their marriage with their ethics and custom, they belief in god and god created this marriage in the heaven soo they do not even thought about their marriage going to end.

They don�t think their marriage as a contract because of this they are not able to get these benefit which is provided by this agreement and also the legislative and judiciary also think in the same ways. People are not aware about that this agreement is not going to contradict their custom and ethics and also not hurt the public policy. This agreement give stability especially to the women if there is end in their marriage. this agreement is completely in the public interest to provide them legal support if the marriage is going to end and this agreement is need of the time for India as well as the world also.

REFERENCES:

• PAUL R. Amato, the impact of divorce on men and women and united state, 25 J. Comp. Family Studies 207, 209, (1994)
• Reeta Sonawat, understanding Families in India : a Reflection of Social changes, 17(2) TEORIA E PESQUISA (2001)
• Anand Giridharadas, with India�s New Affluence comes the divorce Generation, N.Y. Times, feb 19, 2008 available at http://www.nytimes.com/2008/09/19/world/aisa/19iht divorce.110178.html.
• Divorce rate of India increasing, jan 9,2017 available at http://marriagelane.com/divorce-rate-in-India-increaseing

Are pre-nuptial agreement valid and enforceable in India ? THE ECONOMICS TIMES, 13oct, 2014, available at economictimes.Indiatimes.com/analysis/are-nuptial-agreement-valid-and-enforceable-in-India/articleeshow/44782040.cml ?

End-Notes:

1. Indrani Basu, What do morern, financially -independent India. women look for in a marriage ? HUFF POST (3 MARCH 2018 ) Available at https://huffingtonpost.in/2016/03/08/ India-women-marriage _n_9401650.html
2. Tekait mon Mohini jemadai vs basanta kumar singh AIR 1901, ILR28, Cal 751
3. Tekait mon Mohini jemadai vs basanta kumar singh AIR 1901, ILR28, Cal 751
4. Krishna Aiyar vs. Balammal, 1911, ILR 34 Mad 398
5. Pren mohan Das vs Hari mohan Das, AIR 1925, Cal 856
6. Pren mohan Das vs Hari mohan Das, AIR 1925, Cal 856
7. Commissioner of Income tax vs mansukhari Das, 1988, 174 ITR, Cal 703
8. Sandhya Chatterjee vs Salil Chandra Chatterjee, AIR 1980, Cal 244