Validity of prenuptial agreements in India

A prenuptial agreement or also commonly known as a prenup is a contract that a prospective bride and groom or civil union between people who intend to marry enter into. The contract may contain various terms relating to different aspects of the relationship, however, it is most widely used for the setting down agreements regarding spousal support, division of assets and property, etc. in the unfortunate event of a divorce or breakup of marriage between the two parties. Prenuptial agreements are popular in different countries of the world governed by different laws. Many consider it a smart choice today for ensuring security of a couple’s respective assets even in the event of split which are mutually agreeable.

Which otherwise would be divided by the laws of the land which bind the marriage and dictates the divorce as well. Socially, there is a negative perception over getting a prenuptial agreements. People believe that such agreements undermine the sanctity of marriage or that it is made by people who want an easy way out of marriage, are cynical or just outright mean. However, many celebrities have been on the news about having prenuptial agreements and a lot of people now find it prudent to have agreement which guarantees individual freedom and in fact a symbolism of trust between the two people who are going to get married.

The development of prenuptial agreements in India is at its nascent stage and its current stage uncertain. There is no specific legislation governing prenuptial agreements and in the absence of it, there is a need to find its mention in other legislations. Since the subject matter is marriage, it is obvious to start from looking through the different personal laws which govern them as India also currently does not have a uniform civil code. The Christian Divorce Act of 1869 mentions consideration of pre-marital agreements is any exist. On the matter of termination of marriage and division of assets in that respect, the code directs the judge to consider the terms of any such pre or post marital agreements. The State of Goa, the only state in India to have a uniform civil code permits the examination and reliance to be placed on prenuptial agreements in any, under family law for the division and distribution of land. Similarly, the Special Marriage Act of 1954 also accepts a prenuptial agreement to be a legally binding document provided that it is provided with proper documentation. Largely however, apart from the above few examples, there is no special legislation which dictates the realm of marriage agreements. The next best legislation which might be used to examine the validity of prenups in Indian might be the Indian Contract Act, 1872. The Indian Contract Act under section 10 provides that a valid agreement is one which is made between two consenting individuals on mutually agreed upon terms, for a consideration and a lawful object. Judicial decisions have over the years, refused to consider the validity of a prenuptial contract declaring to be against public policy and therefore a void contract under section 23 of the Contract Act.

In Hinduism for example, marriage is considered as a sacred bond. However, there have also been judgements in recent times where fair agreements have been upheld. In the case of Thirumal Naidu v. Rajammal Alias Rajalakshmi[1], the prenuptial agreement stated that the married couple was to live separately. This went against the claim of restitution of conjugal rights. The court held that a Hindu marriage is sacramental in nature and not in the nature of a contract. Moreover, a prenuptial agreement envisaging future separations is against public policy and therefore invalid. There has been an emphasis that contractual agreements cannot override Hindu personal laws and traditions this will also amount to going against public policy. In cases where the courts have upheld the validity of terms of prenuptial contracts is mostly when it is related to property protection. In the case of Sandhya Chaterjee v. Salil Chandra[2] the Calcutta HC discussed the validity of a marital contract based on public policy as against the freedom of two individuals to enter into a contract. Ghosh and Kar make the same point in their paper and conclude that the trend till now in upholding the validity of a prenuptial contract has been with reference to other legal principles such as property law or by creating exceptions to the existing jurisprudence on the issue, not by itself[3]. Similarly, in Islam, even though marriage is in the nature of a civil contract, it has been upheld by the court that terms of contract which go against Islamic law or places unreasonable restrictions only on one of the spouses, or if the interpretation of such contracts results in the conclusion that it goes against public policy, they have been held to be invalid. For example, in the case of Khatum Bibi v. Rajjab[4], the court held that restricting the liberty of movement of the spouse was against public policy and also against Mohammedan law. It seems that what constitutes as public policy according to the judiciary largely depends on the religious law, tradition and practice. In that regard, in the case of Mohd Khan v. Shahmali[5], it was decided by the High Court of Jammu and Kashmir held that if the contractual terms directed for the husband to stay at the wife’s maternal home, then the husband is bound to do so as it is common culture in Kashmir valley.

Based on the above mentioned cases, it seems that in Hindu marriages, the judiciary is only inclined to consider prenuptial agreements when it is in regards to property. While accepting that Muslim marriages are essentially a contractual union, they are more open to accepting prenuptial agreements. However, it is still in a restrictive sense where terms of nikahnama are given a strict interpretation and anything which goes against public policy is rejected. . The question arises whether the court considers a marital agreement itself objectionable or whether it objects to the inclusion of certain provisions which it believes might ‘encourage’ future separation. This simple difference could mean a world of a difference.

Indians have been reported to have the lowest divorce rates[6]. Whether credit goes to Indian traditional values which strongly believe in preserving the sanctity of marriage or the societal pressure to put family before individuality, is debatable. However, the courts certainly have been reliant the same view in issues of divorce, evidenced by the ‘conditions’ that need to be proved for getting away from a partner. Even in current times, irretrievable breakdown of marriage is not a good enough reason for a married couple to breakup according to the lawmakers or the judiciary. In the backdrop on this understanding, it is not difficult to see why acceptance of prenuptial agreements maybe be seen as a tool which encourages future separation and therefore against ‘Indian traditions’. Individual autonomy and freedom is highly treasured and protected and the judiciary in India has always been a supporter of upholding them. If right to marry is considered as a fundamental right under article 21 of the Indian Constitution as an extension of protection of life and personal liberty[7], one must be allowed to separate on their own terms as well without unnecessary judicial intervention trying to resolve the problems in a marriage. Some have proposed the validation of a sort of ‘toned down’ version of prenups where priority is given property division related agreements for the time being. However, I believe that if we are going to ask for legalization of prenuptial agreements, then all provisions, provided they are not unlawful, must be considered and given full effect when a couple decided to separate. This may include provisions which trigger separation based on one partner’s actions. Separation proceedings are not after all automatically triggered and requires an individual to proactively file for it. Therefore, there remains the option to work on the relationship of the couple deems fit and withdraw proceedings at any time if an understanding is to be reached. Making prenuptial agreements legal and valid not only makes it easier for the parties involved in the separation but also the job of the judiciary becomes far less complicated. The institution of marriage and its value has undergone a sea change. The courts’ bias of being more accepting of contractual terms in Muslim marriages based on the understanding that in essence it is a contract is wrong. Even in Islam, marriage is a sacrosanct contract and therefore cannot be equated to a regular contract[8]. Hindu marriages have also been considered as a sacrament civil contract[9] and under Christian personal law there already exists mention of application of prenuptial agreements even though sacrosanct nature of marriage is considered equally important[10]. Therefore, marriage now being seen as having an underlying contractual essence has moved it away from its religious sacramental element.It is my opinion that sanctity of marriage is unlikely to be impacted adversely with the introduction of prenuptial agreements as contracts within marital relations.  

[1] Thirumal Naidu v. Rajammal Alias Rajalakshmi, (1967) 2 MLJ 484

[2] Sandhya Chatterjee v. Salil Chandra Chatterjee, AIR 1980 Cal 244

[3] Amrita Ghosh & pratyusha Kar, ‘pre-nupital agreements in India: An analysis of law and society’ 12 NUJS L. Rev. (2019)

[4] Khatun Bibi v. Rajja, AIR 1926 All 615

[5] Mohd Khan v. Shahmali, AIR 1972 J&K 8

[6]  Anila Kurian, ‘India last in divorce. Good or bad?’ (Deccan Herald, 14 February 2019)

[7]  Shafin Jahan v. Ashokan K.M and ors. (2018) 16 SCC 368

[8] Sirajmohammad Khan v. Jan Mohammad, AIR 1981 SC 1972

[9] B. Muthusami Mudaliar v. Masilamani, 5 Ind Cas 42

[10] Peter Philip Saldanha v. Anne Grace Saldanha, (1930) 32 BOMLR 17

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