Continuous Evaluation III

PRE-NUPTIAL AGREEMENTS IN INDIA: A SOCIAL INQUIRY

By: Vaishnavi Tiwari and Harmanjot Kaur

INTRODUCTION

Pre-nuptial agreements hold a uniquely ambiguous position in the Indian legal

framework.

A pre-nuptial agreement is a contract between the spouses which is signed prior to marriage
to provide for everything each party will receive in case a marriage dissolves. 1 It determines
the state of finances and personal liabilities in case a marriage hits rock bottom. In the literal
sense, they are instruments of concretizing spousal relations, assets and delineating mutual
rights post-marriage, though metaphorically they have been subject to societal ostracization
for disvaluing Indian tradition and sentiment. In the discourse on pre-nuptial agreements in
India, societal perspectives have taken up the forefront.

As much as we understand of marriage to be a private affair or at least hope for it to be left to

the domain of its stakeholders, this is only a dreamy state of affairs! Marriage, as opposed to
the western idea of it, hold immense sacramental value in the Indian society. This
presupposition acts as one of the reasons of the subsequent resistance towards pre-nuptial
agreements with complete disregard to the certainty it may yield if coupled with legal
advances. The benefits of a pre-nuptial agreement are manifold, but owing to the lethargy of
the policy making process in the country and to the underlying assumptions we as society
hold in the form of it acting as invading the Indian social fabric contribute to the nascence of
pre-nuptial agreements in India.

The idea of a pre-nuptial agreement is illustrative of the strides we are taking as a society; not
only in the form of moving away from a doctored idea of a blissful continuance of marriage
but also in the form of recognising the changing attitude towards it coupled with the
increased need to secure financial independence and engage with debates on independence of
women2 in line with Sustainable Development Goals of 2030.
1
Amrita Chakravorty, Pre-nuptial agreements in India, INDIA FILLINGS,
https://www.indiafilings.com/learn/prenuptial-agreements-in-india/.
2
Hillary Hoffower, Pre-nups aren’t just for the rich or famous – more millennials are signing them before
getting married, and you probably should too, BUSINESS INSIDER (Sep. 30, 2018, 21.06 IST), Prenups aren't just

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In this article, we shall attempt to address questions relating to the ambiguity of the legal
status of pre-nuptial agreements in India; how far is the Indian State equipped to welcome an
idea like this (if at all) and the idea of pre-nuptial agreements in India in convergence with
the Global Goals of 2030. In pursuance of the same, we deliberate upon the position of the
women in the Indian society, the assumed financial dependence and other prevailing
prejudices with an attempt to understand how far would acceptance to a pre-nuptial
agreement in an Indian household fight these assumptions.

RESEARCH QUESTIONS

In this article, we aim to understand and answer the following questions:

- How far is the Indian society suited to accept the idea of pre-nuptial agreements,
- What is the legal veracity of pre-nuptial agreements in India?

for the rich or famous - more millennials are signing them before getting married, and you probably should too
| Business Insider India.

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PRE-NUPTIAL AGREEMENTS IN THE INDIAN CONTEXT

Pre-nuptial agreements in the Indian society is not an entirely alien thought to put forth,
however religious diversity makes it a complicated topic to deliberate over since Indian
society with its ambitious political ideals still struggles with gender inequality coupled with
negligible dissociation between marriage and religion. In a country like India, even registered
marriages performed in courts hold religious sanctity and are seen as a manifestation of the
holy union, therefore, a contractual agreement in the nature of pre-nup is looked down upon
since it stands at crossroads with the values that Indian society wishes to propagate.

It is pertinent to note that even though Indian society envisages marriage as a sacred union,
there is a growing trend among working couples to formulate an understanding between
themselves about the wealth, financial assets and liabilities which resonates largely with a
pre-nuptial agreement.3 It is a concept birthed by the rationalist and individualistic view
professed by the Western society and according to legal experts, as many as 20% of
marriages in metropolitan cities in India4 have caught up with this concept and insist on there
being some form of protection of their wealth before they get married, even after it is evident
by the wording of the provisions of the Indian Contract Act, 18725 and through judicial
precedents6 that pre-nuptial agreements are practically untenable in the Indian context.

The question whether the Indian state is likely to embrace this concept is a different inquiry,
first it is important to deliberate over the factors that play an important role in this inquiry.
Gender inequality has been a crucial social issue in India for centuries. It results in unequal
distribution of resources and opportunities and while it impacts the lives of both the genders,
statistically it is women that have been the most disadvantaged. When it comes to societal
institution like that of marriage, the union between the husband and the wife is viewed
through a patriarchal lens which requires women to be submissive, if not docile, which results
3
Neha Pandey Deoras, Pre-nups: Growing trend among working couples, REDIFF.COM (July 12, 2012 12:14
IST), https://www.rediff.com/business/slide-show/slide-show-1-pre-nups-growing-trend-among-working-
couples/20120712.htm#1
4
ibid.
5
Section 23, Indian Contract Act, 1872
What considerations and objects are lawful, and what not.—The consideration or object of an agreement is
lawful, unless— it is forbidden by law ; or is of such a nature that, if permitted, it would defeat the provisions
of any law; or is fraudulent ; or involves or implies, injury to the person or property of another; or the Court
regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an
agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.
6
Tekait Mon Mohini Jemadai v. Basanta Kumar Singh, (1901) ILR 28 (India).

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in the marriage becoming a heavily lopsided affair where the male assumes the role of the
decision maker when it comes to finances. However, with growing rates of literacy in
congruence with an increase in the rate of divorces 7, there is a certain shift that the Indian
society witnesses as well. Modernisation, educational and financial empowerment of women
coupled with changing notions of marriage itself have together contributed towards the
dilution of the stigma that surrounds divorce and independence of women. Pre-nuptial
agreements as a growing trend among working couples in India suggests that this shift is
primarily because there is a strong need felt to reduce inequality between the two genders by
a compelling want to demarcate the rights of the couples in terms of property.

Therefore, although the institution of marriage is now being looked at from a rationalist point
of view, it is pertinent to see the strata of society that attempts to normalize such agreements.
It is generally the elite section of the society, where values of literacy and business have
permeated enough to make them look after finances and avoid traumatising confrontation in
the event of divorce while the majority of the Indian society still lags behind and cannot
possibly embrace the thought of any contractual obligation in an apparent unequal union.

LEGAL VERACITY OF PRE-NUPTIAL AGREEMENTS IN INDIA

The social map of matrimony is rapidly changing in India as a result of increased

introspection, economic advancement and rapid modernization.

“Around five years back, Maneka Gandhi, who was the then Minister of Women and Child
Development, recommended D.V. Sadananda Gowda, then Minister of Law and Justice, to
make pre-nuptial agreements mandatory before marriage.”8 Such recommendation is fuelled
7
Neetu Chandra Sharma, Non-marriage rare in India but divorces double in past two decades, LIVE MINT (25
Jun 2019, 11:45 PM IST), https://www.livemint.com/news/india/non-marriage-very-rare-in-india-but-divorces-
doubled-in-past-two-decades-report-1561486297890.html
8
Pre-nuptial agreements are not valid in India, LIVE MINT (May 7, 2021, 6.21 PM IST),
https://www.livemint.com/money/personal-finance/prenuptial-agreements-are-not-valid-in-india-

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by a concern of the long standing ambiguity as to the legal status of pre-nuptial agreements in
India, legislative absence of a law relating to or regulating the same and the precarious
position women are left at once a marital relationship comes to an end.

India does not have a specific legislation governing pre-nuptial agreements, if at all they were
to be considered, they would fall under the ambit of Indian Contract Act, 1872. 9 It is
therefore, not surprising that courts have generally preferred to declare prenuptial agreements
as void on account of being against public policy.10

PERSONAL LAWS AND PRE-NUPTIAL AGREEMENTS: AN INTERPLAY

There is some certainty as to the position of a pre-nuptial agreement in a Christian marriage

and in Islam, but the same cannot be said for a Hindu marriage owing to the familial and
sacramental value attached to it.

Section 40 of the Divorce Act, 1869 applies to the dissolution of Christian marriages; it
acknowledges the existence of a pre-nuptial agreement and the role it can play while passing
a decree on the settlement of property on divorce. 11 Under Islamic Law, marriage is a seen as
a civil contract and thereby, the nikahnama, a pre-nuptial agreement is recognised as an
essential feature of marriage. Such an agreement holds complete legal ground unless is
contrary to public policy or any grounds which would render any contract, like a pre-nuptial
agreement, void.

Pre-nuptial agreements stand on a sloppy ground under Hindu personal law. If we consider
the strict binary of marriage as sacrament versus marriage as contract, it becomes relatively
easy to discard pre-nuptial agreement as either valid or enforceable. But this is too simplistic
a view to adhere to for a number of judicial interventions stand in way before we completely
overlook the legal veracity of it. The courts are divided on the opinion of validity or
invalidity of pre-nuptial agreements under Hindu law. When the judiciary seeks to sets aside
a pre-nuptial agreement as invalid and unenforceable, it is mainly grounded on reasons like
being opposed to public policy or agreements that contain clauses for either party to relegate
their rights as are entitled under Hindu personal law and encourage future separation.

11620391177175.html.
9
Diva Rai, Validity of Pre-nuptial agreements in India, IPLEADERS (Jan. 29, 2021),
https://blog.ipleaders.in/validity-of-pre-nuptial-agreements-in-india/.
10
supra note 6.
11
Amrita Ghosh and Pratyusha Kar, Pre-Nuptial Agreements in India: An Analysis of Law and Society, 12 NUJS L.
REV., 6 (2019).

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Whereas, whenever the courts have upheld these agreements as valid and enforceable, they
have not been accorded recognition only by themselves but in convergence with other legal
principles like that of property law12 or to uphold substantive rights.

The precarious position of a pre-nuptial agreement in the Indian landscape is a cause of worry
if nothing else. Whilst the instrument is not popular in India, it aims to reduce trauma at the
time of separation and avoid financial disharmony. Codified personal laws have come a long
way from classical Hindu laws to adapt to the changing ideas in the Indian society. Classical
Hindu law provided for unrestricted bigamy, prohibited inter-caste marriage and had unequal
norms for dissolution of marriage. Whereas, the statutory Hindu law provides for monogamy,
puts no bar on inter-caste marriage and provides for uniform laws of dissolution. This shift is
paradigmatic! If normalcy is to be brought in the societal perspective towards pre-nuptials
agreements in India, marriage has to be seen differently and more rationally, as detached
from emotion. The statutory Hindu law has taken strides to match the contemporary debates
on gender, financial independence and the position of women in the society and clearing the
air regarding the legal validity of pre-nuptial agreements is only a step towards the same
direction.

Discrediting the idea of pre-nuptial agreements in our country is often based on the archaic
idea of marriage and society. There is no definitive judicial pronouncement which deals with
demystifying the idea of pre-nuptial agreements in India, its legal veracity, nature, scope and
extent. Such legislative void can only be hoped to be filled with by the introduction of
relevant legal provisions in personal laws.

OBSERVATIONS

Pre-nuptial agreements have been met with great resistance in the Indian society. It is
commonplace for couples in Western countries to sign such agreements prior to marriage to
ensure amicable separation. The same cannot be said for India as the Indian society looks at
marriage as a form of holy matrimony with excessive reliance on the traditional and emotive
aspect of it. In the few instances when pre-nuptial agreements have been seen as valid, such
validity is not ignorant of the indigenous understanding of marriage. Though rare, pre-nuptial
agreements are not unheard of the country yet there exist no explicit legislation governing

12
Amrita Ghosh and Pratyusha Kar, Pre-Nuptial Agreements in India: An Analysis of Law and Society, 12 NUJS L.
REV., 60 (2019).

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pre-nuptial agreements in the country. Legislative lethargy is a result of social and cultural
underpinning towards marriage and the consequent fear of backlash. If pre-nuptial
agreements were to be given legal force in India, it would mean to go against the accepted
notion of marriage as a sacrosanct union. In the void of a concrete legal provision, pre-nuptial
agreements become instruments of misunderstanding the actual intent of drawing it up and
the subsequent disregard of it.

Pre-nuptial agreements find some recognition in Christian marriages under section 40 of the
Divorce Act, 1869, in the form of nikahnama under Islamic personal law and are absent from
the purview of Hindu law. A number of judicial pronouncements exist to render pre-nuptial
agreements both, valid and invalid and the resultant ambiguity that marks it. The courts have
on occasions upheld pre-nuptial agreements to ascertain the delineation of assets after the
dissolution of marriage without engaging in the question of its validity 13 while on some other
instances have expressed disdain as the agreements have been seen as opposed to public
policy14 and resulting in curtailments of rights and liberties of the parties or encouraging
future separation.15

The Ministry of Women and Child Development had urged the Centre to consider imparting
legal recognition to pre-nuptial agreements in the year 2018. 16 Three years since and there is
no sign of legislative intent to assume importance to the question of legal validity of pre-
nuptial agreements in India. This requires extensive social conditioning, disengagement with
archaic ideas of marriage and gender and reception of the changing dynamics in the Indian
landscape.

PRE-NUPTIAL AGREEMENTS THROUGH THE LENS OF SUSTAINABLE

DEVELOPMENT GOALS

Although pre-nuptial agreement is a concept that originates from the values of the Western
society and is taken rather cynically in a traditional society like India, it can have several
advantages that are in line with the Sustainable Development Goals as envisaged by the
United Nations. The 2030 Agenda adopted by the UN aims to promote gender equality (5th
SDG), reduce inequalities and other deprivations (10th SDG) and encourage the creation of

13
Sunita Devendra Deshprabhu v. Sita Devendra Deshprabhu, (2016) S.C.C Bom 9296.
14
Krishna Aiyar v. Balammal, (1911) ILR 34 Mad 398.
15
Thirumal Naidu v. Rajammal Alias Rajalakshmi, (1967)
16
Mannat Singh, Pre-nuptial agreements in the era of millennials: The Indian perspective, SHE THE PEOPLE
(Aug. 9, 2021), https://www.shethepeople.tv/law-and-her/prenuptial-agreements-indian-perspective/

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balanced and sustainable communities (11th SDG). Keeping in mind these three goals, pre-
nuptial agreements are resultantly advantageous since they ease the process of maintenance
and legal separation, make both the parties actualize financial security, guarantee
maintenance, alimony and the actual spousal support needed, secure the custodial and re-
marriage rights of both the parties, thereby, helping place both the genders at the same
pedestal and since they secure the rights of a woman resulting out of a marriage, a pre-nuptial
agreement significantly helps reduce inequalities. While, in the context of Indian society it
can be contested whether such agreements must necessarily lead to the creation of sustainable
communities, since these agreements might also possibly sow the seeds of mistrust against
apparent clarity coupled with the fact that they attempt to actualize contractual obligation
prior to marriage which is a value that is the polar opposite of sanctity and trust in the union
represented by the ideals of Indian culture (excluding Islamic and Christian values), but
nevertheless, the overall shattering of gender stereotypes/ norms that surround the institution
of marriage must lead to better engagement of women and pre-nuptial agreements might
prove to be helpful to address the same.