Importance of a Prenuptial Agreement and its Validity in India.
Updated: Jun 16, 2021
1. WHAT IS A PRENUPTIAL AGREEMENT?
A pre-nuptial agreement is kind of a agreement of contract entered between the couples before the marriage ceremony. It is a signed, registered and notarized document that usually outlines the distribution of assets, liabilities and issues relating to custody of children in the event of annulment of marriage. Such an agreement also specifies in clear terms about the expenses made during the wedding and further contains a list of the articles or gifts brought at the time of the marriage and the items given to the wife by the husband (and vice versa). The various clauses of a prenup include issues like distribution of assets/property acquired jointly or individually during the subsistence of the marriage, the custody of any children, the division of liabilities concerning taking care of the child, setting up an upper limit of alimony, outcomes of infidelity and alike.
Various societal notions and tags attached with Prenups are no longer considered insulting or unromantic because of the steep rise in divorce rates seen across the globe due to various social factors in society. Even though, in India, where marriage is considered a religious union and where a bride’s family often has fewer bargaining powers than the groom's, Prenups are usually unpopular.
In India usually society perceive prenups as an agreement made to control spouses and label them as business deal which is the reason why couples and their families feel uncomfortable entering into such agreements. Also, people think that such an agreement are only for rich and educated class of society. But, much less these people know that, prenups add a different angle and security to a wedlock. Getting a prenup executed will saves one from an unnecessary complex divorce battle and lengthy fee of your Counsellor.
2. IMPORTANCE OF A PRENUPTIAL AGREEMENT
In modern times where divorce takes place faster than marriage, prenuptial agreements are considered to be an important tool. With dating apps websites, the modern generation is open to meet & network with new people. While this opens door to find the right match, it also exposes them to harsh and bitter realities of betrayal or rejections. Dating someone, keeping a secret affair with a new person has become so easy and open that even married people do not refrain from doing it, and sometimes the other person ( the one dating the married person as well as the one in marriage but not dating) does not even get slightest of the real idea/identity of the adulterer. Also, at times either partner had been involved into multiple dating previously and has fallen into marriage because of peer pressure or parental pressure, but continues to date or have an affair post marriage with any of his/her past relationships. These kinds of scenarios increase the complexities between the spouses and more for the person who has been genuine and honest in that marriage.
In this regard, prenuptial agreements can be of immense assistance in planning for such an eventuality, if it were to unfortunately arise, with negotiated terms clearly describing the obligations of the spouses both during the marital period and post-termination of marriage.
Undeniably, prenuptial agreements are basically about money. The purpose of getting into a prenuptial can be manifold:
a. To decide the fate of finances and personal liabilities in case of dissolution of marriage. Prenuptial agreements allow couples to write a "road map" that structures their finances according to a mutually predetermined plan.
b. Prenups can also be useful to check misadventures under Section- 498A of IPC and under the Domestic Violence Act, since it contains specifies in clear terms about the expenses made during the wedding and further contains a list of the articles or gift brought at the time of the marriage and the items given to the wife by the husband (and vice versa).
c. In addition, prenuptial agreements enable an individual to protect a family business or specific property.
d. The agreement proves to be very helpful in facilitating the process of seeking maintenance speedily and also prevents the parties from spending exorbitant fees of advocates.
e. Both parties are also financially secured even in situations where either of the spouses passes away.
f. The agreement protects and secures the child’s future even if both parties decide to go for divorce or mutual separation. It also guarantees custodial issues and remarriage rights and it ensures spousal support, maintenance and alimony.
The prenuptial agreement, hence, reduces conflict between both the parties and help in minimizing disputes post termination of a marriage or in other cases of happening or non-happening of an event during the continuance of a marriage.
3. VALIDITY OF PRENUPTIAL AGREEMENT IN INDIA
The Indian legal system does not yet recognise prenups as legal agreements. At present in India, there is no categorical law governing prenups.
Having said that, there are three main views about the validity of prenups in India-
i. They are governed by the law of contracts and not matrimonial laws. They require the same condition as for any other contract under Section- 10 of the Indian Contracts Act, 1872.
ii. The other view is that for prenups to be legally valid, they should not be against the ‘public policy’ as mandated under Section 23 of the Indian Contract Act.
iii. Prenups are also considered binding if the marriage is solemnised under the Special Marriage Act, provided the said agreement is submitted along with other documents before the Registrar.
4. PRENUPTIAL AGREEMENT IN HINDU MARRIAGE
According to Hindu marriage Act, 1955, a Prenuptial Agreement is not valid, since, the nature of marriage among Hindus is sacramental not contractual.
Case laws indicate that there have been various instances where cases involving prenuptial agreements entered into, in the context of Hindu Law, have come forth for interpretation before Indian courts.
Invalid Prenuptial Agreement. (Hindu Marriage)
In Tekait Mon Mohini Jemadai v. Basanta Kumar Singh, parents of the husband and the husband himself signed a pre-marriage agreement when he was a minor stating that he would reside in the house of his mother-in-law and would abide by her instructions. Yet, after living for about 15 years as such, the husband left his mother-in-law’s residence on account of the arising of some differences and demanded that his wife resides with him in his own residence. The Calcutta High Court relied on the Sheonarain case to hold that this premarital agreement was opposed to public policy as it was meant to permanently control the rights of the husband, granted by the Hindu law, which as per the court could instigate future separation of the couple. The Court thus, declared the prenuptial agreement invalid.
In the case of Krishna Aiyar v. Balammal, a petition was filed by the husband for restitution of marital rights. Shortly after filing the suit, the couple compromised to stay together and the husband then promised to pay some alimony to the wife in the event of future separation. However, the wife never returned to conjugal life after the agreement. Thus, the agreement was not prenuptial. Nonetheless, it is worth noting that the Madras High Court referred to the Mon Mohini case and declared the agreement in question to be void stating that it was against public policy as future separation was envisaged in the agreement.
Valid Prenuptial Agreement (Hindu Marriage)
Even though there have been cases that opposed the validity of the prenuptial agreement in the context of Hindu Marriage, there have been many cases that ruled in favour of prenuptial agreements.
In Pran Mohan Das v. Hari Mohan Das a person agreed to marry a woman based on the promise of her father gifting a house to his daughter. After the marriage, the plaintiff father shifted the possession of the house through unregistered gift. The couple maintained possession of the house for several years and sold it to some other persons. The wife’s father later sued to recover the house. Here, the Calcutta High Court held that the prenuptial agreement was good and valid and the principle of ‘part-performance of a contract’ stopped the plaintiff for recovery of property.
In Sunita Devendra Deshprabhu v. Sitadevi Deshprabhu, the prenuptial agreement was among the documents considered while deciding on a dispute regarding the separation of assets.
A review of these case laws relating to Hindus indicates that with the passage of time, the decisions of Indian Courts have slowly but steadily changed their direction. Yet, it is interesting to note that courts in most cases have not accorded validity to the prenuptial agreements by themselves. Instead, they have adopted two methods to interpret prenuptial agreements before them as valid—first, by enforcing the terms of the prenuptial agreement alongside other legal principles, such as those pertaining to property law, and second, by creating exceptions within the broader framework of judicial precedents which have viewed prenuptial agreements as invalid due to their conflict with public policy.
5. PRENUPTIAL AGREEMENT IN MUSLIM MARRIAGE
While marriage is a ‘civil contract’ for Muslims, there have been many instances in which Indian courts have given an interpretation in relation to prenuptial agreements.
Invalid Prenuptial Agreement (Muslim Marriage)
In the case of Bai Fatma v. Ali Mahomed Aiyab, the issue was whether the agreement between a Muslim husband and his wife, providing for payment of specified maintenance in the event of future separation was valid. The court observed that an agreement providing for and thereby, encouraging future separation between spouses must be pronounced void on account of being against public policy.
In Khatun Bibi v. Rajjab, a husband sued his wife for restitution of marital rights. The wife argued that she had divorced her husband due to non-fulfillment of the prenuptial agreement which stated that the ‘would be’ husband must stay with his wife in his mother-in-law’s house and would not live in any other place without the permission of his prospective wife or mother-in-law, and in case of any deviation, the mother-in-law might arrange remarriage of her daughter to someone else. The High Court of Allahabad held that binding the liberty of the husband was against public policy. Moreover, it was observed that premarital agreement forcing the husband to reside in the mother-in-law’s house for the entirety of the marital relation was invalid in Mohammedan Law.
Valid Prenuptial Agreement (Muslim marriage)
In Buffatan Bibi v. Sheikh Abdul Salim, the plaintiff husband sued the wife for the restitution of conjugal rights. The wife alleged that since the husband had failed to fulfill the terms of ‘kabinnama’ duly executed by the plaintiff as a prenuptial agreement, she had divorced herself and was not his wife anymore. The Calcutta High Court observed that Mohammedan law allowed a person to confer his power of repudiation of marriage to his wife. It held that as part of the ‘kabinnama’, the husband had authorised the wife to stay in her father’s house in case of animosity and conferred on her the power to get divorced if he failed to maintain her for six consecutive months, and this was in the nature of a valid agreement.
The case of Mohd. Khan v. Mst. Shahmali, is thought-provoking, so far as matters related to a prenuptial agreement, Islamic law, and public policy are concerned. The case was that the marriage had taken place following a prenuptial agreement where the defendant husband had agreed to live as a ‘khana damad’ in the house of the plaintiff’s father and would have to pay a sum of money as expenditure towards the marriage ceremony if he leaves. As per the terms of the agreement, non fulfillment of this condition would automatically lead to divorce. The husband ran away from the house for four years and did not fulfill the marital obligations. The question to the appellate court, the High Court of Jammu & Kashmir, was whether the agreement was unenforceable as per Muslim law and public policy. The High Court observed that the practice of ‘khana damad’ in the Kashmir valley was usual, with the practice being voluntary, where the 'khana damad' customarily enjoyed several amenities, and a substantial sum of money was generally spent by the father-in-law for the marriage. Therefore, payment by the son-in-law as per the terms of the agreement would not be opposed to public policy.
Abdul Moin vs Mst. Rafia Bano, stated the condition of prenuptial agreement, any condition that is allowable in Islamic law is allowed to be entered, as long as both parties agree.
Initially, a prenuptial agreement was not valid under Muslim law, but in later cases courts have adopted more liberal approach, with taking in account of the circumstances in which the prenuptial agreement was entered and courts have also respected the decision of married couples as to the manner in which their financial affairs should be regulated.
6. PRENUPTIAL AGREEMENT UNDER INDIAN CONTRACT ACT
To ensure that a prenuptial agreement is enforceable in the court of law, it must be a valid contract under the Indian Contract Act, 1872. If both the adult spouses sign an agreement with a mutual understanding of the terms of the agreement and with free consent, and if the agreement is free from ambiguity and the clauses are fair to both the parties, then the courts can consider such agreement.
At the same time, to ensure the validity of a Prenuptial Agreement the clauses or the conditions laid down therein should not oppose the public policy. Despite fulfilling all the requirements for a valid contract under Section 10 of the Indian Contract Act, 1872, if the terms of the agreement oppose the public policy then the agreement is deemed to be invalid. Section 23 of the Indian Contract Act, 1872 expressly states that any contract which violates the public policy is deemed to be unlawful and invalid.
Prenuptial agreements have been on the government’s agenda for more than three years, ever since the Marriage Laws (Amendment) Bill was introduced. Maneka Gandhi, the minister for women and child development, has been keen to give prenuptial or pre-marital agreements legal validity as contracts. On November 23, 2018, her ministry has called for a consultation with legal experts and other stakeholders to discuss the possibility of bringing about a law that would legitimise these pacts between spouses.
Right now, it is a reality that only the elites get into prenups so that their financial assets are looked after. Most of our country is poor and the masses do not opt for premarital contracts. But prenups will definitely cut short acrimonious battles in court and save the court’s time in matrimonial proceedings.
However, if the terms of property division and maintenance are clearly spelt out in a legally valid prenup, it could ensure that women get the assets and support they are entitled to without going through lengthy litigation.
In modern times where the dissolution of marriage is practiced swiftly, a prenuptial agreement is a wise choice. Although, a prenuptial agreement can only be deemed to be valid on following certain terms and conditions. There is no express provision in India stating the validity of the prenuptial argument but fulfilling all the conditions mentioned under Section 10 and Section 23 of the Indian Contract Act, 1872 is a must.
 Tekait Mon Mohini Jemadai v. Basanta Kumar Singh, (1901) ILR 28 Cal 751.  In Sheonarian v. Paigi, the defendant wife that the plaintiff husband had acted in contravention to their prenuptial agreement, based on which she had agreed to marry him, and hence he was not allowed to enforce his conjugal rights, was not entertained by the Allahabad High Court and in fact seen as ‘absurd’  Krishna Aiyar v. Balammal, (1911) ILR 34 Mad 398.  See Tekait Mon Mohini Jemadai v. Basanta Kumar Singh, (1901) ILR 28 Cal 751.  Pran Mohan Das v. Hari Mohan Das, AIR 1925 Cal 856  Sunita Devendra Deshprabhu v. Sitadevi Deshprabhu, 2016(6) BomCR 567.  12 NUJS L. Rev. 2 (2019), “PRE NUPTIAL AGREEMENTS IN INDIA: AN ANALYSIS OF LAW AND SOCIETY” by Amrita Ghosh & Pratyusha Kar.  Bai Fatma v. Ali Mahomed Aiyab, (1912) 14 BomLR 1178  Khatun Bibi v. Rajjab, AIR 1926 All 615  Buffatan Bibi v. Sheikh Abdul Salim, AIR 1950 Cal 304.  Mohd. Khan v. Mst. Shahmali, AIR 1972 J&K 8.  Muin-Ud-Din v Musammat Jamal Fatima, (1921) ILR 43 All 650, upheld the validity of prenuptial agreement which had provided that the husband would pay the maintenance in addition to dower debt in case of dissension between spouses.  See Bai Fatma v. Ali Mahomed Aiyab, (1912) 14 BomLR 1178  Abdul Moin vs Mst. Rafia Bano 2014 (05) Suit no. 125/2012  Supra at 7.  § 10 of Indian Contract Act, 1872 “What agreements are contracts. —All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.” (Valuable inputs and research in this article has been done by Mr. Kaif Mohammad, Ms. Anuja Mishra, and Ms. Shivangi Chawla, during their internship with S&D Legal Associates)