By Vikrant Rana , Devika Mehra and Avik Gopal
A prenuptial agreement, often referred to as a “prenup”, is a legally binding contract entered into by a couple before they get married. This agreement in general outlines the financial and property-related terms and conditions that will apply in the event of a divorce, separation, or death. A concept evolved from the West, prenuptial agreements are designed to protect the individual rights and assets of each spouse and specify how the couple’s financial matters will be handled during and after the marriage giving each spouse a pre-defined terms for their relationship. In today’s world, prenuptial agreements are becoming more common and relevant due to the increasing number of divorces between individuals with significant assets or property.
Validity of Prenuptial Agreements in India
In India, there are no specific legal provisions that govern prenup agreements. They are relatively uncommon in the country as they often run counter to traditional Indian customs and perspectives on marriage that is based on the personal laws based on which marriages are performed in India.
Marriages under the Indian personal laws are regarded as sacraments, and historically, any agreement that seemed to promote separation or contravene personal laws was deemed invalid.
Initially, the Courts were against prenups being executed between spouses and held that they run against the Indian Contract Act, 1872 for being against the Public Policy of India. The courts were of the view that prenups were the agreements/contracts that allowed parties to agree to let go of the rights were granted to them through the respective personal laws.
In the case of Krishna Aiyar v. Balammal, the husband had sought the restitution of conjugal rights after his wife refused to live with him, resulting in a compromise agreement. This agreement stipulated that the wife should return to her husband, with the provision that if she ever wished to live separately in the future, the husband would pay her Rs. 350. However, when the wife did not return, the husband initiated another suit for conjugal rights. One of the defences raised was the existence of this agreement, which was ultimately deemed invalid by the Madras High Court as it ran counter to Hindu law and public policy, rendering it unenforceable. Such a clause violates the right to conjugal rights of a spouse.
In another case in the Calcutta High Court, wherein the pre-nuptial agreement controlled the rights of the husband which were conferred upon him by Hindu law, the Calcutta High Court held that the agreement was in violation of the public policy of India.
“Time has come to make compulsory prenuptial agreement”
A Family Court Judge of the Patiala House District Courts in a recent judgment, bearing HMA No. 181/2023 [names concealed owing to confidentiality of parties] made a glaring observation stating “Time has come to make compulsory prenuptial agreement to be executed before appointed authority after counselling of the parties about the possible rigsk of marriage going haywire for variety of reasons and making it mandatory to report breach every time breach occurs under intimation to the party allegedly at fault, making it further clear that if breach not reported he/she would not be heard later on that he/she did not report thinking that she/he would improve.”
In the aforesaid, the Hon’ble Court granted divorce on no-fault basis to the parties who had been fighting before Court for over seven years. The Hon’ble Court made the observation that since both parties had levelled allegations against the other while pressing for a divorce, it would be cruel to not grant divorce to the parties, and the same must be granted without going into which party was at fault for the breakdown of marital relations.
The Hon’ble Court even highlighted the critical analysis that may follow this judgment stating that people may see this decision as an attempt of the Courts to break away from its responsibility to adjudicate after analysing or sifting through evidence.
“Spirit of the Family Court Act is also to bring out settlement between the parties, which means putting quietus to their dispute. In the present case if prayer of husband or wife is accepted holding the other spouse guilty of matrimonial offense, the person against whom findings would go will take the matter to higher forum thus drag the other into rigmarole of further round of litigation with added agony and harassment. Similarly, refusal of their respective prayer, if they failed to prove their allegations, would also lead to law induced mental cruelty as discussed above.”
Court further kept both parents as the legal guardians of their daughter for school, academic and extracurricular purposes and directed the mother to get the name of the father added in the daughter’s school records.
Evolving Precedents- Acceptance of Prenuptial Agreements
As time has evolved, the Courts have come to accept such agreements to be valid in certain cases after perusing the purpose and intention behind forming such agreement.
In the case of Pran Mohan Das v. Hari Mohan Das, the Calcutta High Court ruled that a prenuptial agreement was valid, emphasizing the principle of “part-performance of a contract,” which prevented the plaintiff from reclaiming the property. Additionally, since the agreement in question wasn’t a marriage brokerage contract, it was not considered contrary to public policy.
In the case of Mohd. Khan v. Mst. Shahmal, the husband agreed to live as a khana damad in his wife’s father’s house, with a condition that his departure would lead to divorce and require him to compensate for wedding expenses. After fleeing for four years, he came back and was asked to pay the expenses of the wedding. The husband challenges the agreement to be invalid. The Jammu & Kashmir High Court upheld the agreement’s validity, citing the common practice of khana damad and stating it did not violate Muslim Law, as the husband failed to fulfil his obligations.
In a recent case of the family court of Mumbai granted divorce to a husband (Petitioner) on the basis of the intention behind the Prenuptial Agreement dated July 22, 2016 that the parties had executed prior to their marriage. The Court noted that the agreement was executed by the parties when they were older and that they had anticipated scenarios in which they agreed to separate mutually in case the circumstances went south. The court finally held that the wife (Respondent) and her mother had subject the Petitioner to cruelty and witnessed that the agreement had been executed to prevent future litigation and granted the divorce. Further, the court was also of the opinion that the Family Courts Act empowers the Courts to admit and consider such documents that assist in disposing the case.
Relevance of Prenups in India
- Asset Protection- Individuals often come into a marriage with significant assets, prenuptial agreements can protect these assets from being subject to division in the event of a divorce. This is especially important for individuals who have family inheritances, businesses, or valuable properties.
- Changing Marital Dynamics- As marriage dynamics evolve, with both spouses often contributing to household income and finances, prenuptial agreements can reflect these changes and provide a fair framework for wealth and asset management.
- Clarity and Transparency- Prenuptial agreements promote transparency and open communication about financial matters before marriage. Discussing financial expectations and responsibilities can reduce misunderstandings and conflicts during the marriage.
- Financial Independence- Prenups allow each spouse to maintain financial independence. They can specify how finances, including income, expenses, and assets, will be managed during the marriage, preserving financial autonomy for both parties.
- Alimony and Maintenance- Prenuptial agreements enable couples to predetermine the terms of alimony or spousal maintenance. This can prevent protracted and costly legal battles over financial support in the event of a divorce.
- Protection of Children’s Interests- In cases of second marriages, prenuptial agreements can ensure that assets are preserved for the children from previous relationships, thus safeguarding their financial interests.
|Country||Validity of Prenuptial Agreement|
|Australia||Also known as binding financial agreements, first became enforceable in Australia in 2000 with the enactment of the Family Law Amendment Act 2000.|
|Brazil||Prenuptial agreements are normally enforceable in Brazil under Article 256, II of the Civil Code.|
|Canada||Prenuptial agreements are enforceable in Canada under the Family Law Reform Act, 1978|
|China||Prenuptial agreements are enforceable in China under Article 19 of the 2001 Marriage Law.|
|France||The French Civil Code contains rules about matrimonial property and marriage contracts under Articles 1387 to 1581
These agreements must not breach public morality or other provisions.
|India||Prenuptial Agreements are only valid in the state of Goa under the Portuguese Civil Code|
|Japan||Article 755 of The Japanese Civil Code provides the provision that authorize prenuptial agreements. Article 756 of The Japanese Civil Code provides that registration is needed in order to bind third parties but not in order to bind the spouses themselves.|
|United Kingdom||There is still no legislation in England that authorizes or upholds such agreements. However, the English Couts have allowed prenuptial agreements to be considered in determining how to divide spousal assets fairly.|
|United States||Agreements are held to be valid under The Uniform Premarital Agreement Act, 1983. The law governs prenup agreements. It has been adopted by various states and the law may differ from state to state.|
From a bare perusal of the above table, one can see that most the countries around the world have declared prenuptial agreements to be valid agreements and have given them due importance as and when needed. However, the essence of such arrangements is yet to be properly recognized by the Indian judicial system and accepted by the Indian society. Nonetheless, Courts have started to consider them to be valid to understand the intention of the parties to the marriage.
Lately, marriages and relationships have come to split easily and hence, it is a sensible for the parties to execute a prenuptial agreement before getting married. While the western countries have accepted prenuptial agreements as legally valid agreements, India has to pull up its socks realize that pre-nuptial arrangements are in the public interest and it is high time that legal backing is given to these agreements.
 Section 23 of the Indian Contract Act, 1872
 Hindu Marriage Act, 1955 and the Muslim Personal Law (Shariat) Application Act, 1937
 Krishna Aiyar v. Balamma, AIR 1968 Mad 201
 Tekait Mon Mohini Jemadai v. Basanata Kumar Singh, (1901) ILR 28 Cal 751
 Pran Mohan Das and Ors. vs Hari Mohan Das And Anr., AIR 1925 Cal 856
 Mohd. Khan v. Mst. Shahmali, AIR 1972 J&K 8
 Section 14 of the Family Courts Act, 1984