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Analysis of Prenuptial Agreement in India

Prenuptial arrangements are now commonly used around the globe as an effective tool for determining spousal rights in the sense of marital survival as well as in the occurrence of dissolution of marriage. Yet, India has shown its unwillingness to attribute legal standing to such instruments. It is possible to characterize the Indian stance on prenuptial agreements as uniquely ambiguous.

Prenuptial arrangements are slowly picking up fame among the adolescent who endeavors to tie down their accounts and attempt to work out the best arrangement for both in an instance of a likely termination of their conjugal relationship. Even though increasing separation rates are perceived to be a factor that impacts spouses to consent to prenup arrangements, the changing mentality towards marriage and the ascent in ladies' freedom and monetary status can likewise be responsible for the expanding acknowledgment and utilization of prenuptial arrangements.

The Meaning and History of Prenuptial Agreements

A prenuptial, a premarital agreement or antenuptial arrangement is an agreement made before the marriage between two parties. The substance of a pre-marriage arrangement may vary greatly, but it usually comprises clauses specifying the division of properties, responsibilities and custody issues in case of a separation or lawful divorce and the death of a spouse.
Prenuptial arrangements date back to ancient Egypt.

In fact, one of the oldest known prenups is over 2,000 years old. At that point, pre-marital arrangements were not agreements written by lawyers to represent each partner's interests. Rather they were written or oral contracts establishing the property that is to be added to the partnership by each party. They were used to determine the bride's dowry and the bride's wealth. Women were not given the right to own land for thousands of years. Prenuptial provisions were made with the passing of time to ensure a woman had legal rights over the land of her husband until she died. The very first instance of this happened 2,000 years ago in an ancient Hebrew marriage contract called a ketubah.[1]

Legal Status of Prenuptial Agreements in India

In today's Indian society, there has been a shift from a hierarchical society to a society that places more emphasis on individual freedoms and choices, thus the concept of prenups is gaining popularity in India although the legal standing of such agreements is still not clear.
  • With respect to Indian Contract Act, 1872:
    Despite fulfilling the requirements under Section 10 of The Indian Contracts Act,1872, which states that All agreements are contracts if they are made by 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[2] courts have been declined to provide legal force to these agreements on the basis of certain terms that violate public policy under Section 23 of The Indian Contracts Act,1872 which states that The consideration or object of an agreement is lawful, unless…the Court regards it as…opposed to public policy[3] provides for such agreements to be considered void.
     
  • With respect to Special Marriages Act,1954:
    If the marriage is solemnized under the Special Marriages Act,1954, a prenup agreement is considered legally binding provided it is submitted with relevant documents to the registrar.
     
  • With respect to Divorce Act,1869:
    Only Section 40 of the Divorce Act of 1869 (one of the few personal law codes that govern Christians) provides a special mention to pre-marital agreements. This section specifies, before ruling on the termination of the union, that the District Court will examine "the existence of pre-marital or post-marriage agreements." The State of Goa, the only one with a uniform civil code, permits prenuptial arrangements under family law for the distribution of land.[4]

Reluctance to Accept Prenuptial Agreements in India

In India marriages have a sacred status ascribed to them. It is treated as a religious bond between a husband and wife. Hence, such agreements do not find social acceptance. The attitude of Indian couples and the viewpoint of Indian courts makes obvious that the concept of prenups in India has been consistently resisted.
  1. Impact on Marital Sanctity:
    The concept of marriage as a sacrosanct institution is the main obstacle to the legal acceptance of premarital arrangement. In keeping with the conventional Hindu law referred to in the sacred Scriptures, marriage was considered to be a sacred institution that forms the foundation of the Indian family. This outdated view of marriage can promote ideas that demonstrate that the inclusion into the larger concept of a marriage of pre-marriage contracts, which are essentially contractual, would eliminate their sacred character. Moreover, the inclusion in Indian marriages of prenuptial arrangements may be brought into question since prenuptial arrangements may theoretically allow partners to consider termination of marriage before, they have the marital bond itself which in turn may contribute to the dissolution of marriages. It may also encourage spouses to settle for termination of marriage rather than attempting to work together to mitigate their disputes, thus eliminating the resolution of disagreements between the spouses from the private sphere and into the court's public domain.
     
  2. The Possibility of misusing emotional affinity:
    Pre-marital arrangements may likewise confront obstruction in India because of their alleged ability to be utilized to the weakness of men or women who look to utilize marriage as a method for acquiring wealth, which may lead their life partners to go into pre-nuptial arrangements that provide them with significant sums of allowance and other financial advantages which will accrue after divorce or separation. The arrangements in such cases can place people in a weak position, making it simpler for the other to misuse their spouses for their own bit of leeway.
     
  3. Concerns on public policy:
    Prenuptial relationships lack legal protection in a country like India where marriage is still considered to be a sacrament and not a contract. In anticipation of the possibility of pre-divorce as a taboo subject, they are often known to be "opposed to public policy". Certain clauses in prenup agreement like separation clause and no child clause violates section 23 of ICA, which makes the contract void. There is a belief that prenups be born of mistrust or bad confidence in the longevity of marriage in society. In addition, prenups themselves can trigger a conflict that can even lead to separation before marriage also knowing that there is a fast and simple way out, couples can also feel less likely to fight for marriage in difficult times.

Case Laws Pertaining Prenuptial Agreements in India

The case laws suggest that a substantial number of instances have been brought before the Indian courts in cases concerning pre-nuptials in the context of Hindu marriages. The legal understanding trend in relation to those arrangements should be followed.
  1. Tekait Mon Mohini Jemadai v. Basanta Kumar Singh (1901)[6]
    In this case, the husband and his parents had signed a prenuptial agreement as a minor. The arrangement claimed that the husband will never have the right to make his wife leave from the paternal home, and would comply with his mother-in-law's orders. Subsequent to living for around 15 years, he left his in-laws house because of such inconsistencies and requested that his wife stays with him in his house. The Calcutta High Court expressed that the Hindu law forces an obligation upon the spouse to live with her better half any place he chooses to remain. On the off chance that there's any understanding which expresses that the spouse won't be at freedom to dispose of his significant other from her parent's home to his own home and on the off chance that such an arrangement is allowed, at that point it'll defy the Hindu law, consequently such an arrangement is void according to the law and the court would not maintain the legitimacy of the prenuptial agreement.
     
  2. Bai Fatima v. Ali Mohammed Aiyab (1912)[7]
    In this case, an agreement was made between the husband and wife providing for certain maintenance given to the wife in the occurrence of a future separation between them.
    The High Court in Bombay held the agreement which provides for and encourages potential spousal separation is against public policy and therefore must be held void and refused to maintain the legitimacy of the prenuptial agreement
     
  3. Bai Appibai v. Khimji Cooverji (1934)[8]
    In this case, a prenuptial understanding was endorsed between the couple expressing that the couple ought to live in Bombay after marriage. It likewise referenced the spouse would be given an ornament if she married her husband. The Bombay High Court ruled that the arrangement did not infringe public policy because it did not limit any spouse's permanent residence in Bombay. Therefore, in the view of the statute, the court ruled that a marital arrangement was enforceable and legitimate.
     
  4. Mohammed Khan v Mst. Shamali (1971)[9]
    In this case, a prenuptial agreement was endorsed between the couple where the spouse had consented to live in his dad in-law's home, and neglecting to do so he would need to pay an amount of cash as use towards the wedding expenditure. It also claimed that failure to satisfy this criterion eventually results in divorce. For 4 years, the husband ran away and refused to satisfy the marital criteria. The High Court of Jammu and Kashmir ruled that it did not conflict with public policy nor with Muslim rule. The Court then accepted the contract's legality.
     
  5. Sunita Devendra Deshprabhu v Sita Devendra Deshprabhu (2016)[10]
    A prenuptial agreement was signed in May 1951 by Raghunath Deshprabhu and Sita Deshprabhu, citing clauses concerning the allocation of properties. Raghunath Deshprabhu died in November 1987. Sita Deshprabhu dies after filing a suit. In the sense of the deal, it was held that there were no previous rights. The arrangement between the pair was submitted that they had decided on the wealth splitting plan. The High Court of Mumbai then found the prenuptial agreement to settle before the opposing parties on the distribution of properties.

The increasing prevalence of prenuptial agreements makes the Indian administration aware of the role these agreements play in governing marital relations. To discuss the viability of these agreements being legally binding, the Minister for Women and Child Welfare, under the leadership of Maneka Gandhi met in September 2015. However, sources say that the pertinent central government departments consider it too premature to submit prenuptial arrangements in compliance with legal status.

Global Scenario of Prenuptial Agreements

Prenuptial agreements continue to gain popularity in different countries of the world. Laws differ between states and countries in terms of the material they may contain and under what conditions and situations a prenuptial agreement may be considered unenforceable, such as an agreement signed under deception, hardship, or without proper disclosure of assets. To name a few:
  1. United Kingdom:
    Until recently the English courts held that prenuptial and postnuptial agreements would not be implemented on the ground that they opposed the public policy. There is still no law in England that authorizes or upholds such agreements. However, the English judiciary has established radically new laws on almost all aspects of the financial effects of marital separation, including the effect of marriage contracts. Currently, in Radmacher Si v. Granatino, the Supreme Court of England, ruled that "decisive weight" should be given to a pre-nuptial agreement signed by a German heiress and her French husband prenuptial agreements were no more than proof of the intent of the parties. The new ruling retains the strong position of the English courts in examining pre-nuptial arrangements for justice in a much more interventionist fashion than the courts in most of the rest of the world. The ruling would not actually make prenuptial arrangements binding. It guides judges to maintain fairness on a case-by-case basis
     
  2. Singapore:
    Traditionally Singapore has adopted the English law that prenuptial arrangements cannot be implemented. However, in its 2009 judgment, the Singapore Court of Appeal ruled that it would generally enforce international prenuptial agreements. The Court held that the Singapore courts should give a significant (even critical) weight" to the terms of a pre-nuptial agreement between foreign nationals that are regulated by and legal under foreign law, unless the terms of the pre-nuptial agreement violate Singapore's public policy. It is also necessary to remember that the court has confirmed that, as with any other contract, the validity of the pre-nuptial agreement should be regulated by its "proper" rule.
     
  3. Italy:
    Prenuptial agreements signed under international law, which are legal under that law, can be enforceable in Italy unless they are unconstitutional on grounds of public policy. Prenuptial agreements in Italy must be signed before a notary, except that if the spouses want a regime of absolute exclusion of the group of land, the spouses may at the time of their marriage, make a declaration before the person who performs their marriage, which must then be annotated on the marriage certificate. Reference to foreign law is allowed only provided the prescribed guidelines are complied with, including the condition that the contents of foreign law be expressly laid down in the contract.

The Pros and Cons of Prenuptial Agreement

A prenuptial agreement has its own positives and negatives. Few have been listed below.
Pros:
  1. The agreement protects the rights of both children and grandchildren from a previous marriage.
  2. It lays down a complete, clear, and transparent view of liability of both the partners.
  3. Protecting the assets of spouses in case of separation
  4. Advance settlement of maintenance, alimony, settlement, court charges, etc. and any further costs involved in the process of separation.
  5. Protection against Domestic Violence Act, 498A and also protection against false prosecution against the same.
  6. Clarifying the financial rights of the spouse clearly with proper transparency
Cons:
  1. Preparation of such agreements encourages divorce.
  2. Such agreements can also add a No Child provision if the husband or wife opts for the same.
  3. Such agreements can lay down the religion which is to be followed by the child who is being raised.
  4. Such agreements may also require the spouse to follow a code of conduct.
  5. It also provides a cap to get a divorce and can also reduce the grounds.
  6. Comes with terms and conditions applied which is never fruitful for married life.
Conclusion
In the current world, as relationships split easily, it's a smart choice to get a prenup. While the idea of such agreements is very common in western nations, it has yet to be completely adopted in India. The essence of such arrangements has yet to be recognized and deciphered by the Indian Community. Such agreements have been on the trend since 2016 and are more common in capitalist families and wealthy families.

More people are attracted to this in the metropolitan cities as they feel that such a pre-planned agreement reduces their risk of marital life issues and also covers all the unwanted complications that come from time to time. It must be seen that pre-nuptial arrangements have little that violates Indian ethos or public policy considerations, and it is in the public interest to give legal force to these "need of the time" agreements.

References
Case Laws:
  • Bai Appibai v. Khimji Cooverji, AIR 1936 Bom 138.
  • Bai Fatima v. Ali Mohammed (1912) 14 BOMLR 1178, 17 Ind Cas 946
  • Mohammed Khan v. Mst. Shahmali, AIR 1972 J&K 8.
  • Sunita Devendra Deshprabhu v. Sita Devendra Deshprabhu (2016) SCC Online Bom 9296.
  • Tekait Mon Mohini Jemadai v. Basanta Kumar Singh (1901) ILR 28 Cal 751.
Online Sources:
  • The long and strange history of prenuptial agreements | Keith B. Schulefand, Esq. Keith B. Schulefand, Esq., https://www.schulefandlawoffice.com/blog/2018/03/the-long-and-strange-history-of-prenuptial-agreements/ (last visited Nov 15, 2020)
    Prenuptial Agreement: Legal Angle Lexlife India, https://lexlife.in/2020/05/14/prenuptial-agreement-legal-angle (last visited Nov 19, 2020).
Statutes:
  • Indian Contract Act, 1872, §10, Acts of Parliament, 1872 (India).
  • Indian Contract Act, 1872, §23, Acts of Parliament, 1872 (India).
  • The Divorce Act, 1869, §40, Acts of Parliament, 1869 (India).
End-Notes:
  1. The long and strange history of prenuptial agreements | Keith B. Schulefand, Esq. Keith B. Schulefand, Esq., https://www.schulefandlawoffice.com/blog/2018/03/the-long-and-strange-history-of-prenuptial-agreements/ (last visited Nov 15, 2020).
  2. Indian Contract Act, 1872, §10, Acts of Parliament, 1872 (India).
  3. Indian Contract Act, 1872, §23, Acts of Parliament, 1872 (India).
  4. The Divorce Act, 1869, §40, Acts of Parliament, 1869 (India).
  5. The Indian Contract Act, 1872, § 23 states that The consideration or object of an agreement is lawful, unless … the Court regards it as … opposed to public policy.
  6. Tekait Mon Mohini Jemadai v. Basanta Kumar Singh (1901) ILR 28 Cal 751.
  7. Bai Fatima v. Ali Mohammed (1912) 14 BOMLR 1178, 17 Ind Cas 946
  8. Bai Appibai v. Khimji Cooverji, AIR 1936 Bom 138.
  9. Mohammed Khan v. Mst. Shahmali, AIR 1972 J&K 8.
  10. Sunita Devendra Deshprabhu v. Sita Devendra Deshprabhu (2016) SCC Online Bom 9296.


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