As per the clauses of the Hindu Marriage Act, a marriage is a holy union and not a contract. Various precedents, including the Tikait v. Basant case, empower this definition, by upholding that according to Hindu law, marriage is a sacrament, and is deeply rooted in religion.
This definition alone defeats the purpose of a prenuptial agreement. However, certain judgments by the judiciary implicitly acknowledged that Indian marriages are in fact contractual. In the case of Bhagwati Saran Singh vs. Parmeshwari Nandar Singh, it was noted by the Allahabad High Court, that a Hindu marriage is not only a holy ceremony but also a civil contract of sorts. Moreover, in the Muthusami vs. Masilamani case, a marriage, among all religious things, is without a doubt a contract, entailing certain rights and duties. In addition to this, a few states, including Gujarat, Rajasthan, and Madhya Pradesh follow a protocol closely resembling a marriage contract, but for live-in or remarrying couples. In Gujrat, it is called Maitri Karar, while in the other two states, it is called Nata Pratha. The agreement under this can be customized as per the personal requirements of the individuals While it is largely regarded as a substitute to marriage for same-sex and interfaith relationships, the idea of the same resembles what we call “prenups”. Taking these instances into account, marriages have already been alluded to be a contract. What’s left is to give it a legal sanction, and make prenups valid, for the advantage of married couples, their families, and society.
However, Muslim and Christian laws, accept marriage to be a contract of sorts. Under Mahomedan law, when two people marry each other, they enter a civil contract, with both having certain legal powers and functions, which includes legalizing intercourse and breeding. Certain provisions of the law uphold the literal definition of a contract. For example, one of the to-be spouses has to make a proposal by saying “Ijab”, while the other will have to accept it by pronouncing “Qubul”. The marriage will only solidify when both parties are consenting. Moreover, at the time of divorce or death of a spouse, the law dictates that the shared property acquired by the couple shall be divided between the parties. It is nonetheless considered a sacred event. However, some jurists argue that Islamic marriage is purely contractual on a civil line, owing to some of the clauses of Muslim law.
Nevertheless, none of the marital laws in India speaks of a prenuptial agreement. A prenuptial agreement, or a prenup, is a legal contract signed by a couple, who are either about to get married or are in a civil union. The idea of the contract is to civilly allocate assets, liabilities, and other such entities, should the couple decide to part ways, without getting themselves involved in a legal battle for anything.
A prenuptial agreement offers countless benefits, to both the spouses and the society at large.
Prenup requires the couple to furnish complete information on their assets and liabilities. Owing to this, at the time of the divorce, or the death of one spouse, neither of the two are burdened with the loans and debts of the other.
Both the parties are prompted to disclose their real estate portfolio and information on their business ventures. The document then outlines how those would be divided among the two at the time of the divorce. So, in case the couple decides to get a divorce, litigation pertaining to the division of assets, and the whole baggage of trauma it can bring to the table could be avoided, saving both the spouses and their families from the financial burden of hiring lawyers.
If the couple has children, the prenup will state their fate, should their parents decide to part ways. Divorces are noted to be highly traumatic for children, even more so, when their parents are locked in a legal battle. A prenup can do some damage control in that regard, as who gets the custody of the child, will already be penned down on a legally sanctioned document.
It’s no secret that a lot of Indian women are persuaded to hang up the boots on work after marriage, and take up domestic chores, with the promise that the husband would provide for the family. This puts them at a massive financial disadvantage during a divorce, orchestrated by her in-laws, and enforced by the Government of India, who so far have refused to legalize Prenups. This contract ensures that in case of divorce, women get adequate financial aid to pick up the pieces and build an independent life for themselves, without needing to rely on the generosity of their husbands and his family.
With live-in relationships becoming a thing of the day and also receiving legal sanction, the possibility of exploitation and extortion is astronomical. Prenups can ensure that such an occurrence could be prevented, and more individuals are saved from the emotional, physical, and mental trauma of domestic violence. In case of a partner’s death, the other one could be compensated or looked after in terms of finances and assets, without dragging in-laws into the scene and adding a legal burden on them. To that end, the legalization of live-in relationships, go hand in hand with the legalization of prenups, to prevent domestic crimes or trauma from cropping its head.
Prenups can also benefit society at large, by decreasing the caseloads of domestic financial disputes, post-divorce. This will provide the family courts with an opportunity to focus on graver issues.
But since marriage in India is not a contract, a prenuptial agreement will become null and void, even though such a contract would fall within the scope of the Indian Contract Act, 1872. Under Section 10 of the act, a couple can sign such a contract if both the to-be spouses are willing to do so. But there’s a catch. Section 23 of the act pronounces prenuptial agreements null and void, citing it to be an immoral act, and against public policy. This contradictory loophole prohibits consenting couples to sign a prenup. This law is enforced in all the states of India, except Goa, where prenups are legal and quite common. The reason for this is that the state of Goa follows the directions of the Portuguese Civil Code of 1867. The Special Marriage Act does not give any legal backing to the prenups either, making it impossible for consenting couples to sign the document.
But there are a plethora of pitfalls of not making a prenup. For one, the allocation of property between the man and wife would be done as per the mandates of the state, and not the choice of the couple. Not only will this print a huge advocate’s bill, but also take a toll on in-laws. Additionally, if one of the spouses has enormous debt piled up, covertly or overtly, the other would be burdened with paying off the same, despite the financial status of the individual. If the idea of prolonged lawsuits, mental and emotional trauma, and being locked in a custody battle over children while it takes a toll on their future, doesn’t tickle your fancy, the notion of the pre-nuptial agreement is what you’re looking for.
A prenuptial agreement can provide numerous advantages to both, men, women, their families, and their children. But as things stand, thousands of financial disputes post-marriage are pending in Indian courts, causing distress to everybody involved. With the legalization of prenups, a ton of torment could be avoided, and a smooth sailing divorce, with the satisfaction of all parties involved, could become possible
