Pre-Nuptial Agreements: Validity in India

Pre-Nuptial Agreements and its validity in current times in India. This research article tries to dive into the nuances of a pre-nuptial agreement. It looks at the meaning of The laws of different religions, such as Hindu Marriage Act, Muslim Marriage Act, Christian and Parsi Marriage, deal with provisions and valid grounds of marriage, which also includes provisions and valid grounds and acceptance of Pre-Nuptial Agreements. We also look at the conditions for enforcement of marriages with Pre-Nuptial Agreements and the importance of the same.

Key Words: Pre-Nuptial Agreements, alimony, divorce, Personal Laws, Enforceability by Courts

Meaning of Pre-Nuptial Agreement

Pre-Nuptial Agreements, are the agreements entered into by spouses, either at the time of marriage or before marriage. They are also between Prospective Spouses and Live-In Partners. These agreements contain provisions on financial distribution in cases of divorce, grounds of Judicial Separation, grounds of Maintenance, and other related provisions. It is a private agreement between spouses. It also states the monetary liabilities of respective spouses, in cases of death or divorce. This document is signed, registered, and notarized. It contains sections on punishments for forfeiture of assets and adultery and guardianship after dissolution of marriage. Pre-Nuptial Agreements are valid in some countries including; Australia, Canada, Brazil, South Africa, Sweden, Thailand, China, Finland, France, Russia, etc.

Reasons for entering into Pre-Nuptial Agreements:-

1. Saves divorce litigation costs of both parties.
2. Saves one party from the others financial burdens.
3. It leads to a better and more peaceful division of property.
4. Alimony and maintenance is already decided by the party themselves and not by the court.
5. It leads to better decisions on guardianship of children after marriage.

Valid Essentials for a Pre-Nuptial Agreement:-

1. The agreement must be in writing
2. It should be clear and fair
3. It should be mutually signed between both the parties, applying consensus-ad-idem (meeting of mind in the same sense)
4. Free consent of both the parties is required
5. It should be duly certified and notarized
6. It shall be signed by both the parties and their attorneys, mostly in presence of witnesses
7. The assets and liabilities of both parties should be annexured
8. The clauses should be reasonable and mutually beneficial to both the parties
9. It should contain a clause of severability
10. It should be true in all respects.

Validity of Pre-Nuptial Agreements in India:-

Section 23 of the Indian Contract Act (“ICA”), lays down what considerations and objects are lawful and what are not. According to it, consideration or object is lawful, except for when, it is obtained by fraud, forbidden by law, if permitted would be unlawful, involves or implies injury to the others person or property, immoral or opposed to public policy. And every such agreement, with such a consideration is said to be void.

Hence, pre-nuptial agreements are not valid in India, on the grounds of being opposed to Public Policy, and thereby violating Section 23 of the ICA. Pre-Nuptial Agreements, can be said to be detrimental to one party, because if one party is financially stable at the time of making the agreement, and agrees to compensate the other party at the time of divorce, but later becomes financially weak, it is a huge disadvantage to compensate the other party. The ICA also prohibits contracts allowing parties to agree and sign away rights that have been given to them through the various personal laws. And these agreements, speculate and talk about provisions of divorce, which is again opposed to public policy. These agreements are said to only have a persuasive value, only indicative of the intention of the parties, getting married as to alimony and maintenance or division of assets. The court has the discretion of considering it or not, but it is not mandatory for it or it is not bound to follow the contract.

Section 10 of ICA deals with what agreements can be considered as contracts. They are considered as contracts, if made with free consent of parties competent to contract, with a lawful consideration, and are not expressly void. But, is shall not affect any of the laws already present in India, requiring the contract to be made in writing, or in the presence of witnesses, or any law relating to registration of documents.

[1]In the case of Kumar Singh and Krishna Aiyar v Balammal, the High Court, held pre-nuptial agreements as non-executable and invalid.

[2]In the case of Sunita Devendra Deshprabhu v Sita Devendra Deshprabhu, the court allowed the pre-nuptial agreement for the division of assets. The courts considered a pre-nuptial agreement at the time of divorce, to look at the intentions of parties at time of marriage, and look at the conduct of marriage before enforcing it.

In India, except for when the marriage is registered under the Special Marriage Act, marriage and divorce are exclusively governed by personal laws. The courts look at the statutes of the different personal laws, for granting divorce, awarding maintenance, allowing custody of children, etc. A wife, can also seek maintenance under Cr.P.C. Section 125 and under Section 20 of Protection of Women from Domestic Violence Act.

The various provisions of Pre-Nuptial Agreements that can be overruled by the courts are:-

1. Agreements promoting divorce or separation
2. Spousal Waivers
3. Waivers of Counsel Fees, Temporary and Permanent Alimony
4. Agreements not supporting child custody, child support and maintenance
5. Regulation of conduct during marriage
6. Where the religious upbringing of children have been mentioned
7. Enforceability of no child provisions
8. Limiting the grounds of divorce
9. Provisions requiring the spouses to marry
10. Severability

The two exceptional conditions where Pre-Nuptial Agreements are considered valid are; they are legal in Goa as it follows the Portuguese Civil Code, 1867 and if the marriage is solemnized under Special Marriage Act, 1954, with the due registration of all documents of declaration at the office of the registrar. The Pre-Nuptial Agreements, were also more common in Muslim Personal Laws, in terms of Mahr. Mahr is a sum of money paid by the husband to the wife. The Allahabad High Court, in the case of, Akileh v Elchahal, held the validity of Mahr as a Pre-Nuptial Contract, and that marriage is a valid and adequate consideration for upholding a Pre-Nuptial Contract, thereby the contract being valid and enforceable.

Conclusion:-

Hence, as seen above, Pre-Nuptial Agreements, can be considered as hassle-free and easy mode of initiating a marriage, and grounds of divorce, alimony and maintenance. But, it is to be kept in mind that, Pre-Nuptial Agreements, are held to be invalid in India, according to Sections 10 and 23 of the Indian Contract Act. At the same time, Goa and Special Marriage Act, do allow for the culmination of the same. Muslim Personal Law also allows for Mahr Contract as a Pre-Nuptial Agreement, but the women at the same time can approach the court for maintenance, alimony and custody of the children at the time of divorce.

This article is written by Samyukta Parameswaran, Symbiosis Law School NOIDA, 3^rd Year, B.A. LLB.

[1] Dwivedi, P. (2020) prenuptual agreements in India, Lawbriefcase. Available at: https://lawbriefcase.com/prenuptial-agreements-in-india/ (Accessed: February 2, 2023).

[2] Dwivedi, P. (2020) prenuptual agreements in India, Lawbriefcase. Available at: https://lawbriefcase.com/prenuptial-agreements-in-india/ (Accessed: February 2, 2023).