Prenuptial Agreement: in Indian Context: Importance of Prenuptial Agreements

Prenuptial Agreement: In Indian Context
INTRODUCTION
Prenuptial Agreement (also known as premarital agreement) “is a contract between two
individuals entered into prior to their marriage. A typical prenuptial agreement decides the future
of assets like property that both the persons have brought into the marriage, and the assets that
they've acquired together. This agreement includes provisions for division of property,
guardianship rights and spousal support and responsibilities that arise from the marital
relationship of a husband & wife and that otherwise would be regulated in accordance with the
relevant laws.
This concept which is so seemingly new in India is quite old actually. It traces back to more than
2000 years ago, the Ketubah which was the ancient Hebrew marriage contract is one of the first
legal documents giving financial and legal rights to women. In Europe it was in France where the
customary prenuptial derives from the dowry, first recorded in the ninth century.
Originally the prenuptial agreements served to protect wives, assuring them of some property in
the event of divorce or a husband's death but in present scenario prenuptial agreements are
equally important to husbands as they are for wives. Owing to increasing rate of divorces couples
can use the prenuptial agreements as insurance. It is something which they don’t hope to use in
future but also don’t want to be without it.
Importance of Prenuptial Agreements
 A prenuptial agreement can ensure that your partner is marrying you for who you
are, and not for your money.
 Prenuptial agreements ensures speedy maintenance, and expensive advocate fee can
be avoided.
 Prenuptial agreements can help couples, especially women, in the case of illness if
either of the parties wants to divorce.
 Wives, generally give up their career to raise children, can feel financially more
secure.
 Provision for maintenance after the death of a spouse can be ensured.
 It protects the future of children in case of separation of parents.
 A prenuptial agreement can help in avoiding embarrassing situations such as sharing
intimate details of marriage and photographs during the court proceedings.
 A prenuptial agreement ensures support from the spouse regarding monthly
maintenance or alimony, if any.
Although, prenuptial agreements are not very popular in India but is used to avoid financial
disputes at the time of separation. Couples today also want to avoid financial entanglement and
trauma that follows a divorce as well as the tedious legal procedure which makes them inclined
to favorably consider such agreements before marriage.
The real benefit of a prenuptial agreement applies to any relationship: upfront & honest
communication. The main point behind it is to discuss and plan now, while you are most in love
and most in tune with each other and not later, when you are not in love anymore and argue it
out, and these become power issues as much as financial or social issues.
Enforcement of Prenuptial Agreement

In India, There is no particular law, which talks of legality or enforceability of prenuptial
agreements in India. Prenuptial agreements in India are not binding. They fall into the category
of a contract and for it to be legally binding, it has to satisfy the conditions of a valid contract
under the Indian Contract Act, 1872. But this does not devaluate the importance of prenuptial
agreements overall. The court might take the prenuptial agreement into consideration for
understanding the intention of the couple. Prenuptial agreement has persuasive value, which have
helped the court in reaching a proper settlement in cases for divorce.
Goa is the only Indian state where a prenuptial is legally enforceable, as it follows the
Portuguese Civil Code, 1867. A prenuptial agreement may be signed between the two parties at
the time of marriage, stating the regime of ownership. If a prenuptial has not been signed, then
the marital property is simply divided equally between the husband and wife.
List of Judgements where prenuptial agreements directed court to arrive at proper

conclusion
 In the case of Sunita Devendra Deshprabhu v. Sita Devendra Deshprabu. The Bombay
High Court took into consideration the prenuptial agreement for deciding the
separation of the asset.1
 Anjali Sharma, a middle aged business woman, forbade her husband to remarry post-
divorce and also claimed custody of all the pets bought during the course of marriage
with the help of a document called a pre-nuptial agreement. 2
 Jayanth Krishnan had an inter-faith wedding. But before the couple got married, they
signed a prenuptial agreement stipulating that neither would force the other to change
his or her religion in the future. However, two years down the line, Krishnan's wife
started putting pressure on him to change his religion. Krishnan promptly sought a
divorce. When the lawyer produced the prenuptial agreement to defend his client's
decision at the Coimbatore Family Court, it was upheld by the judge.3
 Several courts have used prenuptial agreements to arrive at proper conclusion and to
see the intentions of the couple at the tie of marriage. Though, these agreements are
not legally binding in India but these agreement surely have a persuasive value which
could strengthen the case.
Judgements where Prenuptial agreements are declare as invalid
 In the cases of Tekait Mon Mohini Jemadai v. Basanta Kumar Singh4 and Krishna
Aiyar v. Balammal.5 The indian judiciary held these agreements as invalid
agreements.
1
2016 SCC OnLine Bom 9296 : (2016) 6 Bom CR 567
2
https://www.telegraphindia.com/1120404/jsp/opinion/story_15332562.jsp
3
Ibid.
4
ILR (1901) 28 Cal 751
5
ILR (1911) 34 Mad 398
 Pre-nuptials are not tenable or executable in a court of law. However, they can at best
be an indication of the intent of the parties.
Implementation of Prenuptial Agreement
In India, prenuptial agreement can only be implemented if section 23 of Indian Contract Act,
1872 is amended which declares any agreement relating to marriage as void. There are loopholes
in the Indian Legal System, but they are not foolproof. If a person breaks a prenuptial agreement
signed on a stamped and notarised paper, it becomes a case of fraud. And fraud is a ground for
divorce under the Marriage Act. This has been held in two or three cases but the document is not
watertight under Indian Law.
Prenuptial agreements are important instrument in protecting the interests of women who are in
live-in relationships or marriage. By signing this agreement, a woman would be able to get
financial support without going through the tedious and expensive process of divorce which may
act as a drain on her resources and she may not end up with anything.
There have been quite a few attempts in past to make prenuptial agreements as legaly binding,
The Ministry of Women and Child Development has drafted National Policy for Women 2016
and proposed a review of all personal laws so as to remedy their inherent gender bias.
Legalization of prenuptial agreements for the security of divorced women could be an important
part of Matrimonial laws. This is because divorce cases in India run for several years and in this
acrimonious legal battle women can often end up losing their rightful share. If the terms of
property division and maintenance are clearly spelt out in a legally valid prenup, it would ensure
that women get the assets and support they are entitled to without going through lengthy
litigation.
The concept of Preneuptial agreement is a practical concept and like every other concept have its
own pros and cons but its pros have far more weightage then its cons. Some people question the
need of these types of agreements and consider it against traditional Indian values and policies.
But, it is also a fact that marriages don’t work for everyone. It cannot be further more proved by
the increasing % of divorces in India, Almost in every metropolitan of India the percentage of
divorced increased by double. It shows that it is a high time for our legislature to take these
problems in there consideration and deal with it accordingly

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Prenuptial Agreement: In Indian Context

Importance of Prenuptial Agreements

Enforcement of Prenuptial Agreement

List of Judgements where prenuptial agreements directed court to arrive at proper

Judgements where Prenuptial agreements are declare as invalid

Implementation of Prenuptial Agreement

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