For all his vision and ambitions, Jef Bezos (Amazon Founder) with a net worth of
$137 Billion approx., may not have ever imagined that he would be divorcing his
wife, MacKenzie Bezos one day. With no Pre-Nuptial agreement between the couple,
Mackenzie Bezos could now get almost half of the fortune as alimony making her
the richest women in the world.
To combat this millennial yet contemporary issue where divorces between spouses
end up in unjustified distribution of assets, societies came up with a contract
called Pre-nuptial, Pre-marital Agreement also called a Prenup. It is a
contract entered into by couples who intend to solemnize their wedding whereby
applying various terms and conditions on their marriage and providing safeguards
for themselves in case a situation of dissolution arises.
The first recorded prenup goes back two millennia and was written with
hieroglyphs. While divorce, separation and alimony seem like modern problems,
they very well could have existed hand-in-hand with the practice of lifelong
commitment. Likewise prenuptial agreements have their roots in ancient
civilizations, though they were not always as fair and exhaustive as they are
While in the millennial era, the trend of a prenup is popular among the rich and
famous couples of Hollywood, Indian society is no more oblivious to it. However,
since the marriages in India are considered a sacred union between the two
individuals, prenups being a polemic concept, it becomes challenging to weigh
them in contractual terms. In addition, opting for such agreements invites for
social stigma and implies lack of trust between the families.
However, with the changing times as there is a rise in the number of love
marriages over arranged marriages, where both spouses are financially
independent and desire to be insured against any ambiguity, prenups cannot be
considered a taboo anymore.
A prenup is beneficial in the following ways:
a. It provides for full disclosure of financial status of both spouses and
prevents the possibility of marital frauds, wherein either of the spouses hides
his/her real financial background from the other spouse.
b. It removes ambiguity and pre-determines the quantum of maintenance and/or
alimony to the wife and children at the time of separation or dissolution of
marriage. This is beneficial for male spouses as majority of the alimony laws in
India are bent in favour of female spouses and instead of having a practical
arithmetic formula to determine the quantum of maintenance and/or alimony, the
court decides the quantum depending on various factors like income of the
spouses, standard of living, conduct of the applicant etc.
Therefore, the sum
reflects the discretion of the court and can be meager or excessive. Whereas, on
the contrary, a pre-nuptial agreement provides for predetermined distribution of
assets safeguarding their future after divorce.
c. Since most of the financial issues are already outlined in a prenup, the
couple is saved from legal hassles, bitter negotiations and harassment that go
into sorting out financial matters, post breakdown.
d. It provides for pre-negotiated custodial rights of children, at the time of
separation or dissolution of marriage.
e. It also provides protection to husband against false prosecutions or
allegations by the wife.
While the advocates for Prenuptial Agreements in India claim them to be
women-liberating documents as they financially secure the female spouses by
providing terms stating pre-negotiated distribution of assets, however, it has
its own shortcomings. The first set of problems stems from the very diverse
system of Indian matrimonial laws given the fact that marriages in India are
governed by Personal Laws of the parties to marriage.
Due to the absence of a
Universal Civil Code governing marriages in India, each religion’s marital code
has its own set of rules, leading to diversity in the way marriages dissolve and
distribution of assets, custodial rights of children, and other issues that are
dealt with. Thus, no contract template can possibly adequately manoeuvre the
complexity of this legal web.
Presently, there is no particular law which talks about legality or
enforceability of pre-nuptial agreements in India, except for Goan Law which
recognises pre-nuptial agreements. The general view still remains that they
cannot be legally enforced, and merely indicate the intent of parties.
Government’s position emerged from a Stakeholders’ meeting held in March, 2019
convened by The Ministry of Women and Child Development to deliberate on whether
such agreement should have a legal standing. As some commentators noted, much of
the discussion hinged on how Western societies had integrated the concept of prenups into their marriage laws. Ultimately, the meeting ended with no clear
determination other than that more research into Western prenups was
The courts in India have held Prenups to be unenforceable under Section
23 of the Indian Contract Act as being in contradiction with the personal laws
and therefore being opposed to public policy.
In Tekait Mon Mohini Jemadai v. Basanta Kumar Singh, where there was an
ante-nuptial agreement on the part of the husband providing that he will never
be at liberty to remove his wife from parental abode.
In Krishna Aiyar v. Balammal,
where there was an agreement between the parties which provided for a future
separation, the courts refused to uphold their validity.
In CIT v. Shanti
Meattle, the Allahabad High Court while deciding
the validity of an agreement between the parties to live apart was held
unenforceable because it brought to an end all marital rights which a husband
can exercise in relation to his wife.
However, this does not devalue the importance of prenups. Recently, The High
Court of Bombay at Goa, in the matter Sunita Devendra Deshprabhu v. Sita
Devendra Deshprabu took the Pre-nuptial agreement into consideration for
deciding the issue of separation of assets among the parties.
Having no landmark authority on the validity of the Pre-nuptial agreements in
India, the same are not considered per se invalid, however, they can at best be
an indication of the intent of the parties.
As the next generation becomes more aware of their rights and women becoming
less tolerant in any misbehaviour in relationships, there is a sharp rise in
divorce cases in India. Thus, if pre-nuptial agreements are given validity in
India through legislation or by the courts recognising them as valid contracts,
various benefits as stated above can be derived by the couples. Moreover, in
case of NRI marriages where the female spouse are often victims of a fraudulent
marriage and end up being deserted with no means of support, a prenuptial can do
wonders by creating a balance in favour of the deserted spouse.
 Just Because Prenups Are Western Doesn’t Mean They’re Good for Women
published on theswaddle.com on April 9,2019.
 ILR (1901) 28 Cal 751
 ILR (1911) 34 Mad 398
 (1973) 90 ITR 385 (All)
 [2016 SCC online Bom 9296]
Written by: Advocate Siddharth Manocha
Can be reached at: New Delhi (NCR) Office, A-147, GF & LGF, Defence Colony, New Delhi-110024
Phones: 011-46025335 , Mobile: +91-9999810767
- To File Mutual Consent Divorce in Delhi and NCR
Contact Adv.Tapan Choudhury at Ph no: 9650499965 (Available
- To File Mutual Consent Divorce in Pune
Contact NirDita Law Firm at Ph no: 8851978611 (Available