Critical Analysis of Public Policy

KIRIT P.
MEHTA SCHOOL OF LAW
SCHOOL OF LAW, NARSEE MONJEE INSTITUTE OF

MANAGEMENT STUDIES, BENGALURU
A CRITICAL ANALYSIS OF
UNLAWFUL AGREEMENTS
CONTRACT LAW- I
Batch 2021-2026
SUBMITTED TO: SUBMITTED BY:
Prof. Alisha Thomas Full name – Nitya Jhanwar
Assistant Professor of Law SAP ID – 81022100108
NMIMS (SOL), Bengaluru BBA.LL.B. 1st Year
1
Contract research paper
KIRIT P. MEHTA SCHOOL OF LAW
Table of contents
SR. NO CONTENTS PG. NO.
1 Abstract
2 Introduction
3 Literature review
4 Statement of problem
5 Rationale of study
6 Research objectives
7 Research questions
8 MEANING, SCOPE, NATURE OF

UNLAWFUL AGREEMENTS
9 Judicial precedents
10 Critical analysis
11 Suggestions
12 Conclusion
13 Bibliography
2
Abstract
This study is a critical analysis of section 23 of the Indian Contract Act,1872, with specific
focus on agreements which infringes public policy. Although section 23 deals with the
illegality of both the object of the contract and the consideration for it. The “object” and
“consideration” may in some cases be the same thing but sometimes they are different. This
study will focus on the current status of prenuptial agreements in respect of public policy.
The Indian Contract Act is the regulatory framework for the contract related work. A further
Case laws will be utilised to demonstrate the different scenario of prenuptial agreements and
also status of it in different countries. This study will reveal whether do we need more laws in
regards of prenuptial contracts or not.
Keywords: prenuptial agreements, public policy, section23, Indian contract Act of 1872
3
Introduction
In this paper we will talk about definitions for the phrase’s unlawful consideration and object:
In order to be regarded a lawful agreement, a contract must contain both a valid objective and
a valid consideration. Only then may the contract be considered a legally binding agreement.
When it is determined that either the subject matter or the consideration of a contract is
invalid, the agreement in question is said to be void. Section 231 of the Indian Contract Act
makes it very plain that the consideration or object of a contract must be a valid consideration
or object, and if it is not, the object and consideration are invalid. If this is not the case, the
contract is said to violate both the object and the consideration. These issues are made up of
the consideration for the agreement, the objective of the agreement, and the fundamental
essence of the agreement itself. When an individual engages into agreements, section 23 2
restricts that individual's freedom, and in addition to the other criteria listed in it, that
individual's privileges are made subject to the overriding concerns of public policy. This is in
addition to the requirements outlined in Section 233.
WHAT CONSIDERATION AND OBJECT ARE UNLAWFUL?
I. FORBIDDEN BY LAW
 It's illegal to use something as a consideration or an object of a contract if the law
forbids it. They're no longer legal. As a result, any contract based on such an
agreement is invalid.
II. DEFEAT ANY LAW
 This implies that in the event that the contract is an attempt to circumvent the purpose
of the law. In the event that the courts conclude that the true aim of the parties to the
agreement is to violate the terms of the law, then the contract will be null and void.
III. FRAUDULENT
 A lawful consideration or object can never be fraudulent. Agreement with Unlawful
fraudulent considerations or object is void by nature.
IV. INVOLVES HARM TO ANOTHER PERSON OR PROPERTY
1
The India Contract Act, 1872, § 23, Acts of Parliament, 1872 ( India)
2
Supra 1
3
Supra 1
4
 As a legal phrase, "damage" refers to the wrongful hurt done by one person to another.
As a result, it would constitute illegal consideration if the contract's object or
consideration caused harm to another person or property.
V. IMMORAL
 If a judge or jury finds anything to be immoral, then it is immoral in and of itself.
VI. PUBLIC POLICY
 Certain transactions are prohibited in the name of public policy for the benefit of the
community. Public policy is used in this context, but not in the broad meaning. The
freedom to join into contracts would have been furthered if such were the case. As a
result, public policy is only considered and employed as an object of law in very
specific circumstances.
5
LITERATURE REVIEW
ARTICLES
1. Pankhuri Pankaj, Unlawful Consideration and Unlawful Object under Contract
Law, LEXPEEPS, 2020. 4
 This article summarises some of the most important parts of the Contract Law about
"unlawful consideration and unlawful object." It does this by referring to the Indian
Contract Act of 1872.
 It says that a contract is only valid if it has a legal object and a legal consideration.
 If either of the two is missing, the whole contract is considered to be invalid. It also stats
that to keep society fair, it's important to follow the rules, and a goal cannot be pursued if
it involves an illegal object or illegal consideration that would hurt society.
2. Planning for love: The policies of prenuptial agreements

 This article challenges the stereotypes that define the role of prenuptial agreements in
contemporary American society.
 Specifically, this article questions the assumption that only the rich, the selfish, or the
mercenary can bene fit from a prenuptial contract.
 Allison Marston examines the increasing use of prenuptial agreements over the past
twenty years and describes the types of people who should consider drafting them.
 Ms. Marston summarizes the law about prenuptial contracts and the kinds of
provisions that courts will and will not enforce.
 Nevertheless, this note acknowledges that many prenuptial agreements have been
signed that disproportionately hurt one of the marital partners.
3. Harsimran Singh, Section 23 Of Indian Contract Act – Lawful Considerations And
Objects, Mondaq (2015)5
4
Pankhuri Pankaj, Unlawful Consideration and Unlawful Object under Contract Law, LEXPEEPS, 2020
5
Harsimran Singh, Section 23 Of Indian Contract Act – Lawful Considerations And Objects, Mondaq, (l ast
visited June 11, 2022), https://www.mondaq.com/india/contracts-and-commercial-law/447438/section-23-of-
6
 This article discuss how section 23 is vast and subject to meticulous scrutiny by the
court of the consideration and object of an agreement and the agreement itself.
 Also, we can conclude in order to file a complaint under section 23, it is essential to
demonstrate that the agreement's subject matter, consideration, or the agreement itself
is unconstitutional.
4. B.V.R. Sarma, Lawful objects and considerations under Section 23 of Indian
Contract Act 1872 – An analysis, MANUPATRA, (2020)6
 This article deals with the concept of immorality being susceptible to change as the
social environment evolves.
 In circumstances when courts address the immorality of contracts, it says that the
plaintiff must maintain a cause of action without demonstrating that he committed
illegality in connection with that cause of action.
 If he is able to establish his claim without depending on the illegal contract, the court
can enforce his rights.
 The extent of immorality will change as the times do, and the court will decide the
illegality of contracts under Section 23 based only on the facts of each instance.
BOOKS
1. Furmston & Michael, Cheshire, Fifoot, & Furmston's Law of Contract,

(OXFORD UNIVERSITY PRESS 2016)7
 In this book, the author has provided a detailed view of unlawful agreements.
 He has also proved the point with different case studies and judgements concerning
unlawful agreements.
2. Volume 1, MOITRA, MOITRA’s Law of Contract and Specific Relief
(LexisNexis 2016)8
indian-contract-act-lawful-considerations-and-objects
6
B.V.R. Sarma, Lawful objects and considerations under Section 23 of Indian Contract Act 1872 – An analysis,
MANUPATRA, (2020)
7
Furmston, Michael, Cheshire, Fifoot, & Furmston's Law of Contract (OXFORD UNIVERSITY PRESS 2016)
(Furmston, 2016)
8
Volume 1, MOITRA, MOITRA’s Law of Contract and Specific Relief (LexisNexis 2016) (moitra, 2016)
7
 In this, the author talks about injunctions in detail. In which he explains who has the
right to establish the injunctions, the author tells us that the relief of injunctions is
discretionary.
 Under which criteria the agreements become unlawful.
3. Avtar Singh, Contract & Specific Relief Act (EBC 2018)9

 In this book, the author has provided a detailed view of an agreements against public
policy with the help of different case law and examples.
 In light of Indian Contract Act, he explained the Literature review of many judge and
what has been said by them.
 He has explained under which section of Indian Contract Act does unlawful
agreements comes under and what is mentioned in these sections.
4. Volume 1, PC Markanda, The Law of Contract 1963-1964 (LexisNexis 2018)10
 In this, the author has defined various scenarios which turn agreements unlawful
under sections 23 of the Indian Contract Act.
5. Pollock & Mulla, The Indian Contract & Specific Relief Acts (LexisNexis 2017)11
 In this author has explained marriage brokerage contracts under public policy
essential.
 He has explained about section 23 of Indian Contract Act.
STATEMENT OF PROBLEM
Prenuptial agreements are becoming more popular as divorce rates continue to rise. The
validity of such agreements remains a question in India because of the lack of legislative
action and the ambiguity of the judiciary's view on prenuptial agreements. This paper
proposes some model clauses that can be adopted while taking into account the diversity of
personal laws governing marriage and divorce in India.
HYPOTHESIS: Do Indian laws need to be strengthened when it comes to prenuptial

agreements or not?
9
Avtar Singh, Contract & Specific Relief Act (EBC 2018) (singh, 2018)
10
Volume 1, PC Markanda, The Law of Contract (LexisNexis 2018) (Markanda, 2018)
11
Pollock & Mulla, The Indian Contract & Specific Relief Acts (LexisNexis 2017) (Mulla, 2017)
8
RATIONALE OF STUDY
In recent years, prenuptial agreements have been increasingly common among young couples
looking to safeguard their assets and negotiate the best deal for themselves in the event of
their marriage breaking down. Prenuptial agreements are becoming more popular as divorce
rates continue to rise, but the changing attitudes toward marriage and the increased
independence of women can also be attributed to the rise in prenups.
Such agreements are becoming more common in Western nations, but Indian couples who
want to follow this trend face difficulties because of the lack of prenuptial agreement law in
India. Despite the numerous advantages of prenuptial agreements, the validity of prenuptial
agreements remains a question in India because of the lack of legislative action and the
ambiguity of the judiciary's view on prenuptial agreements.
The purpose of this paper is to propose some model clauses for prenuptial agreements that
can be adopted while taking into account the diversity of personal laws governing marriage
and divorce in India in order to address the issue of ambiguity surrounding these agreements.
Part II of the study will focus on the judicial positions taken by various high courts and the
Supreme Court on prenuptial agreements. Different courts' perspectives on prenuptial
agreement handling in India will be compared and contrasted in this part, which will focus on
growing trends.
Afterwards, we address some of the criticisms that prenuptial agreements may encounter
from a societal standpoint in Part III, which includes our counter arguments. Prenuptial
agreements have been regarded viable around the world for a variety of reasons, and in Part
IV, we examine the many types that have been implemented in various foreign countries. A
model nikahnama is based on the experiences of Indian society and the customs around the
world, and we give two sets of terms for use in prenuptial agreements on an Indian-wide basis
in Part V. The concluding observations in this section are our thoughts on the execution of
prenuptial agreements in the Indian context, which we discuss in detail.
RESEARCH OBJECTIVES
 To know public policy

 Observation in English law for public policy
 The different heads of public policy
9
 To know prenuptial agreements

 To find out the Indian cases which adopted English view
RESEARCH QUESTIONS
 What are the different heads of public policy?

 What is marriage brokerage contracts?
 What are prenuptial agreements?
 What is the status of prenuptial agreements in India?
 What is the status of prenuptial agreements globally?
10
MEANING, SCOPE, NATURE OF UNLAWFUL AGREEMENTS
i. OVERVIEW OF PUBLIC POLICY
An agreement is deemed illegal by the court if it is deemed to be against public policy.

"Public policy" in its broadest sense indicates that courts may at times decline to uphold a
contract because of considerations of the public good. Courts normally enforce contracts, but
public interest reasons may lead them to deviate from that role and refuse to enforce a
contract. The judiciary, not the executive, has the responsibility of interpreting the concept of
public policy. When the Registration Act of 1908 was amended by a state legislature, the
Registrar was given the authority to deny registration for certain powers of attorney that
authorised the agent to transfer real property.
Some public policy-related observations from the perspective of English law:-
If a contract appears to be contrary to public policy in England, it is quite well-established.

As a result of state policy, "contracts of marriage brokerage," "creations of perpetuities,"
"contracts in hindrance of trade," "gambling or wagering contracts," and "assisting the King's
adversaries" are all prohibited. To determine whether a contract falls into one of these pigeon-
holes, the courts use established public policy principles and apply them to a variety of
situations. It's possible to change established categories of public policy to better fit the
changing environment, though." Can a court, on the other hand, manufacture a new public
policy chief?
Lord HALSBURY argues that public policy has no more open categories.
In his response, he added, "I deny" that "any court can construct a new head of public policy".
Judgments of the highest calibre have expressed their concerns about the dangers of
unrestrained judiciary in this area." According to a judge who was protesting against
government policies, "it's like riding an untamed horse; you never know where it's going to
lead". In addition, there are a few alternative viewpoints. " In my opinion, the word "public
policy" is an unsatisfying one. "Common law has ruled that certain kinds of contracts are
invalid because of this. However, this part of the law should not be expanded, since judges
should be trusted more to interpret the law than to explain what is called "public policy." In
the particular situation, it's difficult to determine which side would win in a convenience-
11
balance analysis because "public policy' is always an unstable and treacherous ground for
judicial decisions." However, the rule does exist. When the harm to the public is basically
unquestionable and does not depend on the idiosyncratic interpretations of a few judges, as
Lord ATKIN12 put it, "the theory should only be applied." Indian cases adopting the English
perspective.
Heads of public policy
1. EXCHANGE WITH THE ENEMY
To trade with an enemy of the king, a person who is loyal to an enemy government, requires
the permission of the king. A declaration of war imposes a prohibition on commercial
intercourse and correspondence with citizens of the enemy's country, and such intercourse,
unless authorised by the Crown, is illegal. “Even if the enemy is not a participant to the
transaction, the doctrine applies to all contracts that include or tend to support the enemy.”
2. PUBLIC OFFICE TRAFFICKING
It is against public policy to enter into an agreement with the intent of inducing a public
official to engage in corrupt behaviour. As an example, if a quantity of money was given to a
charity in exchange for a knighthood for the plaintiff, the arrangement was found to be void
and the money could not be recovered. In the same way, an agreement to bribe a member of
Parliament's decision-making is null and void. It is also against public policy to sell public
offices, i.e. make appointments in exchange for money. The sale of a Shebait's office was
found to be void. Admission to prestigious educational institutions is subject to a tuition cost,
which is against public policy. The Supreme Court has characterised it as irrational, unfair,
and unjust.
3. CONTROL OF JUSTICE ADMINISTRATION
An agreement intended to impede the administration of justice is clearly in violation of the

rules of public policy. In the following forms it can appear:
(a) TAMPERING WITH THE COURSE OF JUSTICE

(b) THE PROSECUTION IS STIFF
(c) MAINTENANCE AND POSSESIONS
12
Fender v. St John Mildmay, (1938) AC 1
12
4. MARRIAGE BROKERAGE CONTRACTS
An arrangement to help someone get married in exchange for money is known as a "marriage
broker contract." These agreements are null and invalid. Agreements for the sale of girls are a
common example. Bride price is a well-known Indian ritual that involves giving a dowry to
the parents of a young lady.
5. DEALINGS THAT AREN’T JUST, REASONABLE, OR CONSENSUAL
Public policy may also be opposed in the case when the parties are not economically equal
and there is a substantial disparity between their negotiating power, and where the contract
signed with one of the parties is perceived to be unjust.
ii. OVERVIEW OF PRENUPTUAL AGREEMENTS
In recent years, prenuptial agreements have been increasingly common among young couples
looking to safeguard their assets and negotiate the best deal for themselves in the event of
their marriage breaking down. Prenuptial agreements are becoming more popular as divorce
rates continue to rise, but the changing attitudes toward marriage and the increased
independence of women can also be attributed to the rise in prenups.
Such agreements are becoming more common in Western nations, but Indian couples who
want to follow this trend face difficulties because of the lack of prenuptial agreement law in
India. Even though there are many benefits to prenuptial agreements, the validity of
prenuptial agreements in India is still a question without a clear answer. This is because
legislators haven't made any laws or policies about prenuptial agreements, and it's not clear
what the courts think about them.
The purpose of this paper is to propose some model clauses for prenuptial agreements that
can be adopted while taking into account the diversity of personal laws governing marriage
and divorce in India in order to address the issue of ambiguity surrounding these agreements.
Part III of the study will focus on the judicial positions taken by various high courts and the
Supreme Court on prenuptial agreements. Different courts' perspectives on prenuptial
agreement handling in India will be compared and contrasted in this part, which will focus on
growing trends.
13
Afterwards, we address some of the criticisms that prenuptial agreements may encounter
from a societal standpoint in Part IV, which includes our rebuttals. Prenuptial agreements
have been regarded viable around the world for a variety of reasons, and in Part V, we
examine the many types that have been implemented in various foreign countries. We
propose two sets of terms in Part VI, one for a model nikahnama and the other for prenuptial
agreements across India, based on Indian society's experiences and lessons learned from other
countries' customs. The concluding observations in this section are our thoughts on the
execution of prenuptial agreements in the Indian context, which we discuss in detail.
iii. OVERVIEW OF PRENUPTIAL AGREEMENTS IN INDIA
Numerous unique societal concerns have arisen because of India's rapid development, and
these issues have been addressed by the proliferation in the post-Emergency era of
constitutional interpretation, which has also made the judicial process more accessible and
participative. The Indian judiciary has often recognised these advances in Indian society by
accepting and incorporating them into various judgements. ' Legislators have been spurred to
action in many cases as a result of this, as well. As a result of such social and judicial
activism, laws like the Protection of Women from Domestic Violence Act, 2005 and the
Muslim Woman (Protection of Right on Divorce) Act, 1986 have been interpreted to justify
Muslim women's right to alimony even after the iddat period, and the Sexual Harassment of
Women at Workplace (Prevention, Prohibition, and Redress) Act have been enacted to
address the issue of sexual harassment in the workplace.
Women in India may have benefited from this advancement in the legislative arena and the
creation of new economic channels. Increasing numbers of women are able to walk away
from a poor marriage because they are financially secure and have a greater sense of self-
worth. Dissolution of marriage has long been stigmatised as the fault of the female partner.
As Indian society has rapidly progressed, women have been more likely to rebel against
traditional values, as evidenced by the rise in the number of women who want to share
household responsibilities and financial responsibilities with their husbands.
As a result of modernization, women's educational and financial empowerment, and the

changing definitions of marriage, divorce's stigma has decreased. With the rise of Mahila
Panchayats, or 'All Women Alternative Courts,' women have been able to voice their
concerns about their married situations in greater detail. Divorce rates have risen from 1 in
14
1000 ten years ago to roughly 13 in 1000 today, as a result of this. Divorce filing rates are
greater among women from higher socioeconomic levels, which may explain why they have
more options when it comes to pursuing legal action. Muslim women's low divorce rate (23.3
percent compared to 68 percent in the 2011 Census) is due to the State's failure to empower
Muslim women, Hasina Khan, the founder of the Bebaak Collective, a Mumbai-based
Muslim women's organisation, found.
Divorces often drag on for years in court as spouses haggle over matters like property
division, spousal support, and child custody because of the financial and emotional toll they
take on both parties. Couples planning to get married should consider the prospect of divorce,
even if it wasn't on their radar when they first got engaged. In this regard, prenuptial
agreements can be a tremendous help in preparing for such an eventuality, with written
clauses clearly specifying the obligations of the spouses both during the married period and
after the marriage has ended.
A. PRENUPTIAL AGREEMENTS FROM THE POLICY POINT OF VIEW
Prenuptial agreements, despite not being explicitly governed by Indian personal laws, have
been a part of Indian society for a long time now. When it comes to dissolving Christian
marriages, section 40 of the Divorce Act, 1869 13 specifies that district courts may consider
prenuptial agreements and the stipulations contained therein when making a property
settlement decree. Because Hindu marriage is viewed as a religious tie rather than a contract,
prenuptial agreements have not been as often accepted in the context of Hindu marriages.
The Indian Contract Act, 1872, could conceivably control a premarital agreement in the lack
of particular regulating provisions in Indian personal laws. That courts have decided to
declare premarital agreements unlawful because they are against public policy is no surprise.
Courts have exhibited this inclination against premarital agreements that appear to promote
separation or alter the personal law on the topic of marriage, in particular. The ramifications
of prenuptial agreements' contractual nature have already been examined in this work.
For this reason, we believe that prenuptial agreements should not be considered insulting to
the religious concept linked with marriage. This is especially true given the opposition to
prenuptial agreements due to the Hindu religion's view on marriage. A prenuptial agreement
13
Divorce Act, 1869, § 40, Acts of Parliament, 1869 ( India)
15
is similar to the Jewish Ketubah marriage contract, which stipulates that the husband-to-be
makes written promises to protect the wife's financial interests in the event of his death or
divorce before the wedding ceremony. The Islamic view of marriage as a civil contract makes
prenuptial agreements widespread practise in Muslim marriages as well. If both parties agree,
prenuptial contract requirements relating to Muslim marriage might include any condition
permitted by Islamic law. A well-known example of a term in a Muslim prenuptial agreement
is the agreement to pay Mahr Mu'ajjal or Mu'akhkhar, which is paid to the woman following
the separation or death of the husband.
This does not mean that a contract with an object or consideration contrary to public policy
cannot be legally enforced. As a result, it's critical to consider the numerous court rulings
declaring prenuptial agreements null and unenforceable for violating public policy, some of
which are detailed here.
Prenuptial and postnuptial agreements have been updated by Radmacher v. Granatino 14, a
Supreme Court of the United Kingdom decision, which stated that prenuptial agreements do
not conflict with the public policy' if they are signed by both parties, and should therefore be
enforced unless it would be unfair to either party. Because of this lack of clear demarcation,
the Indian position on prenuptial agreements is not as clearly defined as it is in the United
States.
B. PUBLIC RECEPTION TOWARDS PRENUPTIAL AGREEMENTS
There appears to be a trend in the judiciary toward recognition of prenuptial agreements, but
because public policy and legislation have not explicitly mentioned them, it is unclear
whether or not a prenuptial agreement will have legal effect.
Despite this, a growing percentage of wealthy couples appear to choose prenuptial

agreements over traditional marriage contracts. Almost 20% of marriages in cities like
Mumbai and Delhi are claimed to have prenuptial agreements, which are prearranged
agreements about the future dealings with cash, individual liabilities, and custody of children.
Despite the fact that prenuptial agreements may not be legally binding in most situations, the
parties involved believe that they place moral obligations on themselves and their future
spouses.
14
Radmacher v. Granatino, (2010) UKSC 42
16
The Indian government appears to be taking notice of the function prenuptial agreements play
in regulating marital interactions in light of current trends. Prenuptial agreements are being
discussed on a regular basis by the Ministry of Women and Child Development to determine
whether or not they should be given legal force. Reports, however, indicate that there is a
sense among the relevant Central Government departments that it is too early to proceed with
giving prenuptial agreements legal status and that further deliberation is required. As a result,
the extent to which the State is open to prenuptial agreements is currently unknown.
iv. ADDRESSING RESISTANCE TO PRENUPTIAL AGREEMENTS
Perceptions about prenuptial agreements will always influence how people react to them.
Prenuptial agreements have long been contested in India, as evidenced by the experiences of
Indian couples and the views expressed by Indian courts. Prenuptial agreements may not be
given legal value in some jurisdictions, as we'll discuss in this section. Following a review of
some of the most common arguments against prenuptial agreements, we will attempt to
disprove their premises in order to create an alternative narrative.
A. ON THE EFFECT ON THE SANCTITY OF MARRIAGE
Prenuptial agreements face a major roadblock because of Indian society's reverence for
marriage as a sacred institution. Marriage was seen as a sacred institution in Hindu tradition,
as reflected in the sacred books, and as such was seen as essential to the existence of a
civilised community in India. There may be some basis for the assumption that incorporating
prenuptial agreements (contracts) into the broader conception of marriage will diminish its
sacredness, given this archaic attitude. Even though prenuptial agreements may enable
couples to anticipate the end of their marriages before they are joined in the marital bond, this
could result in marriages being considered as more common in India rather than an exception,
which could lead to more divorces in India.
In addition, it may be argued that enforcing prenuptial agreements can give married couples
the impression that they have an easy way out if things go wrong. It is also possible that this
will lead them to choose divorce or separation rather than working together to resolve their
disagreements, transferring the resolution of marital issues from the personal realm to the
public arena of courts. The argument is that if a majority of couples choose to divorce
because of pre-negotiated terms of marriage and separation, the institution of marriage may
begin to lose its significance in society as a whole. To put it another way, in a dystopian
17
world, this may give credence to the idea that marriage is only an official legal contract
between two people, with no respect for the emotional and familial components that are
currently so important in weddings.
Understanding the evolution of Indian marriages may challenge this belief that the sacredness
of marriage is being eroded. The contractual aspect of marriage has been a feature of Islamic
law since its inception, and this fact should be kept in mind at the outset. However, it must be
borne in mind that even in Islam, marriage is a sacred bond. Thus, it is impossible to treat the
Islamic marital contract in the same way as a regular commercial contract. In addition to
being a sacrament, Hindu law now recognises marriage as a civil contract as well. Although
marriage is considered a sacrament by Christian canonical law 15, prenuptial agreements are
recognised and courts may allow for their application in certain circumstances. In view of the
fact that India's personal laws recognise marriage as a contractual relationship, it is suggested
that establishing prenuptial agreements as contracts within the married relationship will not
adversely affect its sanctity, as is the case with religious marriage.
Furthermore, in light of shifting attitudes in Indian society, prenuptial agreements should now
be viewed as risk prevention measures rather than ‘marriage breaking instruments,' in terms
of the worry that they will harm the marital relationship. Rather than serving as a barrier to
marriage, prenuptial agreements have been shown over the world to act as safety nets in the
event of a dissolution of the union. Indeed, prenuptial agreements may help improve the
marital life of a couple by establishing an effective communication and agreement on
sensitive issues, as well as full disclosure of each party's liabilities and responsibilities, prior
to the start of the marriage, which can lead to a better relationship.
B. ON THE POTENTIAL OF MISUSE OF EMOTIONAL AFFINITY
Prenuptial agreements may also meet opposition in India because of the perception that they
can be utilised against the male spouse. People who argue against the legal validity of
prenuptial agreements based on this reasoning may point out that couples who plan to use
marriage to accumulate wealth may persuade their fiancés to sign agreements that provide for
substantial alimony and other financial benefits that they will receive in the event of a divorce
15
Peter Philip Saldanha v. Anne Grace Saldanha, (1930) 32 BOMLR 17
18
or separation. Some people may also say that negotiations in these situations can put potential
husbands in a weak position, making it easy for brides to take advantage of their potential
husbands' feelings for them.
The husband or wife may be able to claim that he or she had consented to the conditions of
the contract when he or she signed it, as he or she discovered the ‘schemes' of their spouse by
the time they discovered the ‘schemes' of their spouse. Aside from that, it may be difficult to
establish the deceit to the court in order for the prenuptial agreement to be annulled or voided.
In addition, one may claim that prenuptial agreements may further harm the spouse in the
event of unforeseen events, such as those that were not anticipated at the time of signing. It's
possible that, for example, the wife who was earning INR 10 lakh a year at the time of the
marriage may quit her high-paying job, decreasing her annual income to INR 2 lakh. If the
prenuptial agreement is enforced, the woman may suffer as a result of her commitment not to
seek alimony in the event of a divorce.
The idea that prenuptial agreements can be misused can be countered using a three-step
counterargument. To begin, the mere fact that something has the potential to be abused does
not preclude its inclusion in the legal system. Furthermore, there is no evidence to suggest
that prenuptial agreements would be misused more frequently than other existing sections of
law or legal instruments, such as divorce decrees. Prenuptial agreements, if used correctly,
can be beneficial to spouses, as will be shown in Part V. Instead of denying prenuptial
agreements legal status, it is recommended that procedural protections be implemented, as
was done with Section 498A of the Indian Penal Code, 1860, to limit the likelihood of abuse.
Another benefit of legal recognition is that if prenuptial agreements operate according to

basic contractual principles, the interests of a spouse will be protected from possible abuses
of their terms by safeguards that allow for the cancellation of contracts due to extraneous
considerations like duress and deception as well as allowing for non-performance on grounds
of frustration. Third, judges are likely to limit the application of prenuptial agreement
conditions if they have an intrinsically harmful effect on spouses, given the special nature of
marital contracts in the societal context. It is possible that if the divorced wife is unable to
sustain herself because of a "no alimony" condition, the court may deviate from the
prenuptial agreement and order the ex-husband to provide financial assistance.
C. ON THE POSSIBILITY OF EXPLOITATION OF VULNERABLE WOMEN
19
Moreover, some critics of prenuptial agreements may consider prenuptial agreements as

means for husbands to exploit their women. The wife in Indian marriages is often thought to
have less agency and power than her husband, which may be relevant here. When it comes to
making decisions about their spouse, many families' environments restrict the freedom of
women. In a patriarchal society, women are seen as liabilities on the family, which may
enhance the chance for husbands to coerce their wives into starting marital relations by
consenting to repressive arrangements.
People who are against prenuptial agreements for this reason may also say that even if the
parts of prenuptial agreements that try to get around laws that protect women aren't allowed
to work, there's nothing to stop a husband from abusing his wife and shutting her up by
telling her she gave up her rights and protections under these laws when she signed the
prenuptial agreement. It might be too much to hope that women are always aware of the
nuances of the law when it comes to this. If a woman comes from a poor or rural background,
she may not be able to judge the validity of her husband's assertion if she has not obtained
adequate education.
In addition, prenuptial agreements may be utilised to circumvent the Dowry Prohibition Act,
1961, which prohibits the payment of dowry. It's possible to marry someone from a wealthy
family and get money from her family as a dowry, for example, but it's not always the case. A
prenuptial agreement could state that the money she receives as a wedding gift from her
family is being given to him voluntarily and that he has no claim to it. In this situation, it
could be argued that it would be hard for the wife to use the Dowry Prohibition Act to get
help with her in-laws' claim for money in the future. Prenuptial agreements might even allow
a groom to strike his fiancée during coitus for the sake of physical pleasure. A woman may
find it difficult to tell the difference between injuries suffered as a result of physical pleasure
and injuries that are the result of domestic abuse in such a situation.
Regarding the possibility of utilising prenuptial agreements as a tool for the exploitation of
women, our position is that this problem can be solved by instituting a presumption against
the legality of prenuptial agreements that contain conditions that are prima facie adverse to
the interests of the wife. This is especially true if it can be shown that the wife is in a weaker
negotiating position due to financial instability or other relevant causes. Agreements with
clauses that appear to promote or allow for occurrences that are otherwise statutorily
prohibited may likewise be subject to this presumption. The presumption against the wife's
20
lack of legal purpose can be rebuttable, like the presumption against legal intention in
domestic agreements. By shifting the burden of proving free assent and good faith to the
husband in some circumstances, the application of such a presumption could potentially
protect vulnerable wives from being exploited by prenuptial agreements, regardless of
whether they were agreed voluntarily or under duress.
D. ON PUBLIC POLICY CONCERN
Finally, because Indian courts heavily rely on prenuptial agreements for this reason, public
policy might be used to argue against their legitimacy. Even if prenuptial agreements were
determined to be lawful, it would be pointless if the agreements were found to be against
public policy, as this argument argues.
There are two possible ways to look at the public policy issue in light of the cases covered in
Part III of this paper: Prenuptial agreements have been held to be against public policy in a
number of judgments dating back to the 1970s and 1980s. The passage of several decades,
when seen in conjunction with the changing societal perspectives in India, should bear
witness to the evolution of public policy in India, according to our argument. Public policy
matters should be examined through a current lens, taking into account the social changes that
have occurred since the last time they were revaluated, at least.
But this argument is mostly based on common sense, so it can be argued against on the
grounds that just because public policy has changed doesn't mean that prenuptial agreements
aren't against the changed public policy. Legal precedents from earlier times nevertheless
hold true in light of similar factual conditions, despite the fact that they may appear out-of-
date given contemporary social developments. As a result, a second argument is required, in
that a review of the cases addressed shows that, except from a few decisions, prenuptial
agreements are not generally seen to be contrary to public policy. Prenuptial agreements have
been held to be against public policy based on the facts of each case, and courts have
generally rejected such agreements that contain coercive provisions or interfere with religious
rights. The inclusion of repressive conditions in prenuptial agreements should not be
considered as a threat to public policy as a whole, but rather as a threat to individual liberty.
v. THE STATUS OF PRENUPTIAL AGREEMENTS: A GLOBAL OVERVIEW
21
In the event of a divorce, prenuptial agreements can serve as useful frameworks for dividing
up a couple's financial and legal responsibilities in the future. Divorce cases can benefit from
the use of these documents as evidence. Despite the apparent advantages, the utility of such
agreements cannot be universally proven. Prenuptial agreements are currently held under a
variety of legal requirements depending on where you live. Analysis of prenuptial agreements
in five countries of study reveals some significant developments. As a result of the
revelations in this section, it is clear that no prenuptial agreement is hermetic and that no legal
jurisdiction has the same approach to solving the same basic family law issues.
Prenuptial agreements are examined in two countries, including China and Turkey. Countries
in which prenuptial agreements are widely used as a means of managing marital affairs were
chosen for this study. Some safeguards exist to protect the future spouses' autonomy or to
protect a prospective spouse from losing his or her rights due to the exercise of autonomy by
the other spouse in each state.
A. PRENUPTIUAL AGREEMENT IN CHINA
In China, prenuptial agreements are legally binding and must be in written to be valid.
According to Article 19 of the 2001 Marriage Law of the PRC16,
“The husband and the wife may conclude an agreement that the property acquired by them
during the period in which they are under contract of marriage and the property acquired
before marriage shall be in their respective possession separately or jointly or part of the
property shall be in their possession separately and the other part jointly.”
It's worth noting that China's divorce rate is on the rise. It is estimated that 1.9 million
couples divorced in the first half of the year 2017, which is a 10% increase over the same
period last year. According to research, less than 5% of couples in China use prenuptial
agreements each year. In the absence of a prenuptial agreement, in most situations, property
is shared equally in China's community property system. As a result of this, the use of
prenuptial agreements continues to be at a low rate among lower-middle-income couples.
Even if prenuptial agreements were more popular, the lack of detailed guidance on how to
use Article 19 in practise, what terms are crucial, and how the distribution of assets should be
16
Marriage Law of the PRC, 2001, Article 19, Acts of Parliament, 2001 ( India)
22
specified would be a factor. The Supreme People's Court of China's interpretation of the
marriage law, which says that a house bought before marriage is a personal property and will
be kept after divorce, but the mortgage amount paid by the non-mortgagor during the
marriage will have to be "paid back by the real-estate owner," can be seen as important
guidance about how to divide assets.
When it comes to raising a family in the Chinese culture, women play a pivotal role. In the
absence of this acknowledgement, the women of the family's intangible contributions to the
family's asset base are clearly problematic. Women in China have traditionally had a smaller
proportion of assets than men, which is compounded by the current judicial instruction of not
sharing property on divorce and instead giving assets to the individual whose name appears
on the deed. Prenuptial agreements are especially important for Chinese women because of
this disparity in the circumstances.
The status of prenuptial agreements in Hong Kong is less established than in mainland China,
and these agreements lack firm statutory footings in Hong Kong. As far as prenuptial
agreements are concerned, nothing is said in Sections 7 or 14 of Hong Kong's Matrimonial
Proceedings and Property Ordinance.
Similar to Hong Kong, prenuptial agreements are legal in India. Couples who have signed
prenuptial agreements in India may not be able to predict the court's decision in the event of a
divorce due to the lack of an Indian law governing them. While prenuptial agreements have
been legalised in China, they are only popular among the younger generation and those living
in major cities, while the older generation and those living in rural areas still rely on
traditional beliefs. In order to assess if the same tendency is duplicated in the Indian setting,
empirical information must be gathered.
B. PRENUPTIUAL AGREEMENTS IN TURKEY
Secular Turkey is home to about 99 percent of the country's population, most of whom are
Muslim. Turkey does not have a state religion, and the country's constitution guarantees
religious freedom and tolerance. Turkish law allows couples to enter into a prenuptial
agreement regarding their marital property before they are married. Turkish law governs the
allocation of marital assets in the case of a divorce or separation, and the marital asset regime
is divided into legal and contractual forms.
23
Assets obtained during a marriage are divided evenly between the spouses under the default
legal asset regime, which takes effect if no agreement is made. "Participation in acquired
property" regime is another name for this arrangement. Salary or wages, payments from
social security, disability benefits, and other assets obtained after marriage can all be
considered acquired assets in this case.
According to the Turkish Civil Code ("TCC"), the second category of premarital asset regime
comprises three subtypes from which the parties must choose in order to create a legitimate
agreement. These classifications are based on the regimes of property separation, property
sharing, and community property. A notary or marriage officer must witness the signing of
the prenuptial agreement in order for it to be valid under this regime.
Freedom of contract is one core concepts of Turkish law. However, such flexibility is
restricted by Turkish family law, as prospective spouses can only reach an agreement within
the scope of the regime of marital property. One of four options is available to the couple:
either a regime of separation of property with distribution (the most common) or a system
allowing each partner to participate in acquisitions (the least common). There are only two
options for spouses to choose from when it comes to property: either the legal asset regime or
one of the three types of contractual asset regimes.
TCC Articles 206, 209, and 210 provide that the court may enforce a separation of property
subtype scheme, but it can also be accepted by both spouses if they agree to it. Under this
system, the wife's assets and the husband's assets are treated separately. This regime is
governed by TCC articles 242 and 243, whereas articles 276 and 277 control the equitable
distribution of assets between spouses in the event of a divorce.
The "shared separation of property" subtype was invented by Turkish lawyers and derived
from the marital property regime of "participation in acquisitions" for separating property. As
indicated by TCC articles 244–255, the assets acquired or investments made by one spouse
for the future benefit of the family would be shared equally in event of divorce. This is
known as the "middle way."
Three sorts of assets are used in the community of property system subtype: the wife's, the
husband's, and the joint. Legally, spouses are not allowed to share property rights. Under
Articles 256 to 281 of the TCC, a couple can select the allocation of their personal and joint
24
property during a divorce or separation, allowing for a more equitable distribution of

property.
In India, prenuptial agreements are not legally binding in all cases when it comes to property
matters. Prenuptial agreements in Goa are limited to the split of property, just like in Turkey,
and other aspects of marriage agreements that fall under their jurisdiction are not addressed.
In the absence of prenuptial agreements, the TCC's legal asset distribution system is quite
similar to Goa's Civil Code's method of property allocation. Prenuptial agreements under
Goa's Civil Code cannot be readily changed or cancelled, but the matrimonial property
regime under TCC can be adjusted at any time before or during the marriage through an
agreement under the terms of the law. This is a fundamental contrast between the two.
vi. CONCEPTUALISING MODEL PRENUPTIAL AGREEMENTS FOR INDIA
Prenuptial agreements, by their very nature, are designed to allow spouses the ability to
manage their own affairs in the event that they are enforced in a given jurisdiction. This raises
the question of whether or not the 'autonomy' of spouses should be fully acknowledged or if
spouses should be "protected" if agreement provisions attempt to go beyond established law.
'Autonomy' in this case refers to the ability of the spouses to override the law's default rules
by signing a prenuptial agreement, while 'protection' refers to the presence of checks and
balances to safeguard individual safety.
Leong Wai Kum17, a famous family law professor, has skillfully raised issues about the
legitimacy of agreements like these, claiming
As long as the autonomy of couples, who are unquestionably adult individuals capable of
self-governance, is honoured, the question of how to keep them accountable to their
agreement becomes moot." The flip side of this coin is whether or not courts should enforce
an agreement between spouses if the terms of the agreement on property division or child
support are less than what a judge under existing law could order.
As a legal researcher and commentator on legal philosophy, Prof. Brian Bix has claimed that
"individuals know better than do other people (even those in government) what is in their
own best interests". Since spouses would have to live and work together for the duration of
17
Leong Wai Kum, The Law in Singapore on Rights and Responsibilities in Marital Agreements, 10 SING JLS
108 (2010)
25
their marriage, we argue that it makes sense to allow them to choose the conditions of their
partnership rather than relying on third parties, such as the State, to impose default rules. In
some cases, however, it may be useful to empower the government to mandate specific
special terms to provide equal bargaining power for both spouses in order to protect the
interests of both parties.
It is a well-known truth that the efficiency of a household is directly related to the

contributions made by each member of the couple. In reality, measuring the contributions of
each spouse to jointly created marital goods like children and the home is challenging
because chores (are) generally unmonitored and output realised long after the contributions
were made. As a result, people have an incentive to avoid working on these products." The
fact that people today are more aware than ever before of the roles they want to play in
marriage — and that includes judges — is important because it allows them to frame their
expectations for their spouses in a way that is most likely to produce the best results for their
marital relationship.
Because prenuptial agreements are designed to protect the individual's right to self-
determination, a legal guarantee that they are enforceable in India is warranted. In fact, this
view is backed by the fact that conventional public policy objections to prenuptial agreements
are now under judicial review in countries such as the United Kingdom (from which India
drew most of its public policy narrative against prenuptial agreements). For cohabiting
Indians who want to enjoy the benefits of a formalised marriage, the existence of a prenuptial
agreement may certainly be considered as being capable of pushing them to do so, given that
it provides a safety net that can assist alleviate their fears about future spouse claims.
Prenuptial agreements are legal in several countries, including but not limited to the United
States, South Africa, Australia, and New Zealand, but "the courts have kept complete
discretion to scrutinise" agreement conditions in each of these states. Because it is evident
that the exercise of one individual's autonomy can possibly limit the autonomy of the other
individual, the danger of opportunism exists in any form of contract, including prenuptial
agreements. This judicial perspective is noteworthy."
According to Professor Robert Leckey, "the possibility for substantial inequity in intimate
ties" is acknowledged in relational contract theory of marriage. "Prenuptial agreements
overwhelmingly harm women because of their lesser bargaining power," according to
26
scholars. If an adjudicating court, when evaluating prenuptial agreements, is exercising its

authority to identify such inequalities, it should try to provide enough protection to the weak
and vulnerable spouse.
In light of this, prenuptial agreements cannot be handled by either party in an absolute

manner, and at the same time, inflexible restrictions under the law governing such agreements
cannot be a fair alternative either. Our position is that the State should seek to develop a
hybrid legal status, ensuring balance between total autonomy and absolute protection, when
dealing with prenuptial agreements. Personal autonomy is required for prenuptial agreements,
but the law must also maintain "safety nets" to ensure that people in need are adequately
protected.
Even though prenuptial agreements have been the subject of long-running debate, the form
and content of such prenuptial agreements in the Indian context deserve more attention.
Therefore, in this section, we want to define the components of viable prenuptial agreements,
taking into account Indian difficulties. In this regard, we first examine the prospect of
negotiating the integration of conditions intended to benefit Muslim women into the
conventional form of the nikahnama, the Islamic premarital agreement. After that, we'll cover
the kinds of prenuptial agreement stipulations that prospective couples from various religious
communities might choose to include.
Contrary to other countries, Indian statute does not specifically mention prenuptial
agreements or the negotiated conditions included within. However, the Indian judiciary has
repeatedly given respect to these agreements and their negotiated provisions. The upshot of
this is that we are confident that, barring a prenuptial agreement that would be viewed as
violating public policy, courts will give due consideration to prenuptial agreements when
making marriage-related decisions, with the possibility for lower courts to take such
agreements into account at least as convincing evidence indicating the intentions of spouses.
A. VIEWING THE NIKAHNAMA AS AN INSTRUMENT FOR THE BENEFIT

OF MUSLIM WOMEN
The nikahnama has long been accepted in India as a prenuptial agreement because it is a
conventional and lawful prenuptial agreement for Muslim couples. A prenuptial agreement's
value can be hampered by the disparity in bargaining power between future spouses.
According to certain scholars, this hazard is also present in the nikahnama if the woman is
27
expected to be placed in an underprivileged position within the family. We contend, however,

that the situation can be rectified gently to give the wife with equal rights and safeguards
within the marriage by exploiting the contractual structure of the nikahnama. If the
nikahnama is properly constructed, it could serve as a model for prenuptial agreements for
members of other religious groups, if they are able to negotiate their particular laws to find
place for prenuptial agreements in their marital spheres.
In this perspective, it's crucial to consider how Muslim traditions see the wife's equality
inside the marriage relationship. According to Islamic law, a husband must "measure up" to
his wife in order to be considered "equal" to her in the eyes of Islamic law. For the sake of
equality, the husband's family must set the "standard for equality" in marriage, according to
this theory. A nikahnama should be gender-balanced to ensure that Muslim women have the
same rights as their husbands in marriage, according to certain Muslim authorities.
Their argument is that, because it is an agreement that outlines each spouse's rights in a
Muslim marriage, the nikhnama can help prospective spouses talk about and decide the
specifics of their future marriage, as well as give wives a way to confront issues of oppression
within marriage that are, in some ways, sanctioned by the religion. In addition, certain
Islamic scholars see the nikahnama as a symbol of Islamic women's autonomy and rights, and
believe that the parameters stated in it might enable Muslim brides to take charge of their
own destiny.
An explicit statement of the husband's duty to support his wife as a purpose of marriage is
common in a nikahnama, one of the many clauses that can be included in a Muslim marriage
contract. Scholars disagree, however, over the benefits to Muslim brides that are traditionally
absent from writings of modern Islamic law. Muslim marital contracts may include novel and
liberal terms that conservative scholars oppose, while progressive scholars support such terms
because they believe in the concept of individual autonomy and free consent in determining
and protecting rights or liabilities that arise from a contract.
For this reason, we are presenting alternative conditions that a Muslim woman can include in
her prenuptial nikahnama in order to protect her interests both during and after her marriage.
All of our arguments are predicated on the premise that, because nikahnamas are legal
contracts, only the husband's free assent and compliance with all other essentials of a
legitimate contract will make any of our proposals enforceable in court. We believe that the
28
nikahnama's contractual nature can expedite the process of ensuring that Muslim women are
awarded their full entitlements without fuss and their husbands are held to their word,
provided that the nikahnama's form and substance are modified.
29
JUDICIAL PRECEDENTS
According to an examination of these case laws pertaining to Hindus, the rulings of Indian
courts have gradually but consistently evolved. In most circumstances, courts have not
accepted prenuptial agreements as binding contracts on their own. Because prenuptial
agreements conflict with public policy, they have adopted two methods for interpreting them
as valid—first, by enforcing the prenuptial agreement's terms alongside other legal principles,
such as property law; and second, by creating exceptions within the larger framework of
judicial precedents that have viewed prenuptial agreements as invalid.
So, in order to find any trends in the judicial interpretations of the personal law of two major
religions, we look at the most significant instances involving Hindu and Mohammedan
personal law.
1. Prenuptial agreements in Hindu marriages
A look at Indian case law reveals that prenuptial agreements in Hindu marriages have come
up for interpretation in Indian courts on numerous occasions. It's worth keeping an eye on the
judicial interpretation of such agreements.
1.1. Invalid prenuptial agreements
In Sheonarain v. Paigi ('Sheonarain')18, the spouse of the plaintiff agreed to live with his
wife in her mother-in-law’s house prior to their marriage. But he left the house, refused to
return, and began living with a Muslim mistress who had taken him under her wing,
Afterwards, he sued for the return of conjugal rights in a court of law. Within one month
following her husband's restoration of "his caste," the Allahabad High Court ordered the
defendant to return to her spouse and granted the plaintiff's request for conjugal rights.
Notably, the High Court in this case rejected the defendant wife's claim that the plaintiff
husband had violated their prenuptial agreement, which was the basis for her consenting to
marry him, and so was not permitted to assert his conjugal rights.
In Tekait Mon Mohini Jemadai v. Basanta Kumar Singh (Mon Mohini) 19, the husband's
parents and he signed a pre-marriage agreement while he was a juvenile declaring that he
18
Sheonarain v. Paigi, (1885) ILR 8 All 78
19
Tekait Mon Mohini Jemadai v. Basanta Kumar Singh, (1901) ILR 28 Cal 751
30
would live with his mother-in-law and follow her instructions. Nonetheless, after roughly 15
years of living as such, the husband left his mother-in-home law's due to some disagreements
and asked that his wife live with him in his home. The Calcutta High Court used the
Sheonarain case and some foreign judgments to rule that the pre-marital agreement was
against public policy because it was intended to permanently control the husband's rights
under Hindu law, which, according to the court, could lead to the couple's future separation.
As a result, the prenuptial agreement was deemed void by the court.
As previously stated, Indian courts have consistently refused to enforce prenuptial

agreements due to public policy concerns. The use of the public policy argument in
dismissing prenuptial agreements has presumably taken shape in two ways, according to a
review of the aforementioned judgments. If you're looking to overturn the rights and benefits
afforded by Hindu personal law or tradition, then prenuptial agreements aren't going to work
for you. Prenuptial agreements that contain language the court considers to be unconscionable
because they encourage a couple to separate in the future have likewise been deemed
unconstitutional.
1.2. Valid prenuptial agreements
Prenuptial agreements have been ruled invalid in several Indian cases, but it's important
noting that some decisions have fought to uphold the constitutionality of prenuptial
agreements in Hindu marriages.
On the promise of her father, Pran Mohan Das v. Hari Mohan Das20 enticed him to marry a
woman he had never met. Immediately after the plaintiff's marriage, his father transferred
ownership of the house to the plaintiff's mother through an unregistered gift. They owned the
house for several years before selling it to someone else. Later, the husband's father filed a
lawsuit to reclaim the house. According to this high court, the prenuptial agreement is
legitimate and "part-performance of a contract" estopped plaintiffs from recovering their
property in this case. The arrangement in question was also not found to be against public
policy, as a marriage brokerage contract is.
20
Pran Mohan Das v. Hari Mohan Das, AIR 1925 Cal 856
31
The post-nuptial agreement case of Sandhya Chatterjee v. Salil Chandra Chatterjee 21 is

pertinent here because it illustrates how a rational contract between a husband and wife is not
against public policy and can be enforced in court. A court should take into account the
primary public policy concern of respecting adult-to-adult free and voluntary contracts when
determining whether or not a contract is invalid for being against public policy, the Calcutta
High Court said, citing Printing and Numerical Registering Co. v. Sampson22 as a
precedent. As a result, it was determined that the wife's demand for separate maintenance
when she was living independently was justified and not against public policy as time and
society progressed.
2. Prenuptial agreements in Muslim marriages
Despite the fact that marriage is a civil contract for Muslims, an investigation of Indian
courts' interpretation of prenuptial agreements in Muslim weddings reveals numerous
surprising conclusions.
2.1. Invalid prenuptial agreements
Bai Fatma v. Ali Mahomed Aiyab23 asked the Bombay High Court if a Muslim husband and
wife's agreement to pay stipulated maintenance in the event of a future separation was
legitimate. The court answered in the negative. The court ruled that an arrangement that
encourages future separation between spouses is unlawful because it violates public policy.
This court's decision was based on English law at the time. The Supreme Court of England in
the Radmacher case24, while upholding premarital agreements, has stated that "(t)he reason
why the court should give weight to a nuptial agreement is that there should be respect for
individual autonomy. When a married couple decides how their financial concerns should be
handled, the court should respect that decision."
Prenuptial agreement in Ahmad Kasim Molla v Khatun Bibi ('Kasim Molla') 25 stated that
if any harsh treatment was done to his bride, she could leave him, and he would be obliged to
give her a sum as subsistence allowance and house rent per month. The guy abused his wife,
and she left him for someone else. After that, the husband sent a talaknama to the wife, but
21
Sandhya Chatterjee v. Salil Chandra Chatterjee, AIR 1980 Cal 244
22
Printing and Numerical Registering Co. v. Sampson, (1875) 19 Eq 462
23
Bai Fatma v. Ali Mahomed Aiyab, (1912) 14 BomLR 1178
24
Radmacher v. Granatino, (2010) UKSC 42
25
Ahmad Kasim Molla v. Khatun Bibi, AIR 1933 Cal 27
32
she didn't get it. The High Court of Calcutta ruled that the talaknama was not necessary for
divorce to take effect, but that the iddat period would be calculated from the moment that the
bride learned of the divorce. In addition, the court ruled that because the bride could not be
proven to have been aware of the talaknama prior to the filing of the complaint, she was
entitled to interim support. Further, the Court noted that because the plaintiff husband had no
obligation to pay any post-divorce maintenance allowance, and because the parties were
referred to as bride and groom in the prenuptial agreement, the defendant wife was only
entitled to receive iddat expenses for the duration of the marriage. In contrast, Justice
Costello pointed out that the decision contained faulty law and made it clear that he had
strictly followed the legal points and was not constrained by the ethical components of the
case.
According to an examination of the aforementioned cases, public policy problems about

prenuptial agreements are not restricted to those entered into between Hindus. Courts have
the authority to nullify prenuptial agreements even when they are signed by Muslim couples
for reasons of public policy. Courts appear to have a tendency to invalidate those agreements
that appear to be encouraging separation between the spouses. In addition, marriage contracts
that restrict one spouse's freedom or violate Islamic law have been recognised as invalid. The
prenuptial agreement, the nikahnama, tends to have a tendency to be rigorously interpreted.
2.2. Valid prenuptial agreements
Prenuptial agreements entered into in the context of Muslim weddings are generally treated
positively by courts.
It was maintained by the Allahabad High Court in the case of Muhammad Muin-Din v.
Musammat Jamal Fatima (referred to as "Muin-Din")26 that a prenuptial agreement
stating that the husband would pay maintenance and dower debt if there was discord between
the couple was found to be legitimate by the Court. He sued her for return of their conjugal
rights in Buffatan Bibi v. Sheikh Abdul Salim ("Buffatan Bibi") 27. The plaintiff's wife
claimed that because her husband had failed to fulfil the provisions of the prenuptial
agreement signed by the plaintiff, she had divorced herself and was no longer his wife. The
Calcutta High Court noted that under Mohammedan law, a man might give his wife the
authority to repudiate their marriage. The court found that the husband's permission for the
26
Muhammad Muin-Ud-Din v. Musammat Jamal Fatima, (1921) ILR 43 All 650
27
Buffatan Bibi v. Sheikh Abdul Salim, AIR 1950 Cal 304
33
wife to live with her father in the event of enmity, as well as his grant to her of the right to
divorce if he failed to support her for six months in a row, were all part of the kabinnama.
This case involved a prenuptial agreement in which Sahebzadi Anwar Begum's wife agreed to
be paid a monthly amount as kharch-e-pandan by her husband, who afterwards withdrew the
money from her without offering any explanations. The plaintiff sought a declaration of her
prenuptial agreement right to receive monthly kharch-e-pandan. However, within ten days of
filing the suit, the husband conceded the full claim of the plaintiff, so the viability of the
claim was not decided therein. In light of the various legal interpretations, it appears,
however, that even if the claim had been rejected, the appropriate court would have
considered it.
An analysis of these cases reveals an Indian court's preference for enforcing Muslim
prenuptial agreements. It's worth mentioning that the British courts' longstanding stance on
public policy played a role in the original invalidation of such agreements. According to
historical evidence, in the late 19th century, it was widely accepted that preparing for
separation indicated an intention to separate in the future, and this affected the views of the
courts on public policy. The public policy concern has been approached more liberally in
later judgments, with courts taking into account the context in which a prenuptial agreement
was entered into and whether the rights of the spouses were inherently restricted.
3. PRENUPTIAL AGREEMENTS IN OTHER COMMUNITIES IN

INDIA
A look at the case of Mozelle Robin Solomon vs Lt. Col. RJ Solomon 28 is also required to
understand the legal status of prenuptial agreements in relation to other applicable legislation
in the context of prenuptial agreements. It was held that "Jewish marriage is a contract and
not a sacrament" in the case of Mozelle Robin Solomon v. Lt Col. R.J. Solomon 29, a review
of Jewish marriage and divorce law. Because prenuptial agreements are civil contracts, it is
argued that they might also be used to Jewish weddings in India, subject to broader public
policy issues, like Muslim prenuptial agreements, which are also in the form of a civil
contract. In terms of Christianity, the position is generally easy because it has previously been
established those prenuptial agreements between Christian married couples can be considered
28
Mozelle Robin Solomon v. Lt. Col. R.J. Solomon, 1979(81) BOMLR 578
29
Supra 20
34
by Indian courts when making orders on the settlement of property in divorce cases.
In Goa, a universal civil code based on the Portuguese Civil Code, 1867, means that personal
laws have no effect, and this should be taken into consideration. Under the Portuguese Civil
Code, a prenuptial agreement for property distribution is permitted. Unless they come to an
agreement, it's assumed that they've married under the doctrine of communioaverii. The right
of the wife to receive an equal portion of the property brought into the marriage by both
spouses is protected by the practise of property sharing.
35
CRITICAL ANALYSIS
Prenuptial agreements can include a wide range of clauses that could benefit a Muslim
woman in the long run, as demonstrated in the preceding section. The male fiancé, as a
contractual party, is expected to agree to these provisions as part of the nikahnama in order
for these advantages to be accrued. While this may be the case, it is crucial that Muslim wives
be granted the same contractual rights as their husbands to specify specific terms and freely
negotiate their nikahnama.
Although prenuptial agreements have a legal position in India, the inclusion of such clauses
in marital contracts by other communities, particularly Hindus, is dependent on judicial
kindness, due to the lack of a uniform legal status for prenuptial agreements. Prenuptial
agreements can be viewed as Memorandums of Understanding in which the spouses mutually
determine the rights and obligations they would like to respect throughout their marital life,
even if asserting that they are legal and enforceable contracts for couples from all non-Islamic
communities may be difficult at this stage.
Since Indian courts do not have a clear guideline on how prenuptial agreements would be
treated, it is understood that the execution of such articles may be heavily reliant on the trust
and respect between the spouses. As a result, given their importance in ensuring a happy
marriage, it is hoped that these two aspects of the prenuptial agreements signed by Indian
couples will assist them to fulfil their original intent.
So, we believe that having a prenuptial agreement drafted, regardless of its enforceability, can
allow couples to be open and honest about their expectations of one another, strengthening
their marriage relationship in the process. For married couples, we suggest that prenuptial
agreements or similar instruments could help them better define the boundaries of their
connection during their marriage and better divide their assets and privileges in the event of
divorce. According to a legal perspective, it is feasible to evaluate the case where the
prenuptial agreement's terms do not violate legal safeguards or create oppressive conditions
in a marriage, but the other terms do. If the contradictory clauses can be separated from the
rest of the agreement, it may be possible to hold the agreement to be legally binding.
A prenuptial agreement can be tailored to meet the specific needs of a couple by including a
variety of clauses, which we discuss in this section. This paper's previous sections will show
36
that the legality of prenuptial agreement terms in India is based on individual cases and on the
adjudicator's subjective interpretation of the facts, hence there is no simple formula for
determining whether an agreement's terms are legally binding in a court.
In this paper, we don't intend to rehash arguments for legal recognition of prenuptial
agreements, but we do concede that legal acceptance is a necessary condition for prenuptial
agreements to achieve their stated goals. Our goal is to provide an understanding of how
prenuptial agreements can benefit couples in India, should they be made legal. As a result, the
words listed below are meant to serve as an example of the types of provisions that a couple
contemplating marriage might consider inserting in documents they perceive as prenuptial
agreements and intend to be bound by.
1. Related to assets clauses
A household's net worth is heavily influenced by its possessions, both tangible and intangible.
Couples frequently combine their individual assets before getting married in order to create a
larger holding for their joint usage. During the course of a marriage, joint assets can be
formed or acquired, such as a combined bank account or a family home or car. Such property
can be shared by both couples during happy times in a marriage, but disagreements may
occur later if there is marital conflict, death of one spouse, or a divorce. Particularly if one
spouse pays much more to the jointly owned property than the other, this could be the case.
Prenuptial agreements should be drawn up by a couple before they get married in order to
avoid future disputes over the distribution, possession, or ownership of property that was
brought into the marriage by one spouse or acquired during the course of the marriage, both
individually and collectively. It is possible to give special attention to rules on the division of
property in the event of divorce. For those who prefer to preserve any of their personal
property separate from their marital assets, a prenuptial agreement might be a good idea. In
this regard, a smart approach would be to include a schedule to the prenuptial agreement that
lists any properties possessed prior to marriage that are to be preserved as separate property.
A spouse should also make sure that the separated property is not mixed in with marital
assets, in case the other spouse makes a claim on the asset in the future. Mr. X (to be married
to Ms. Y) may have an apartment in Gurugram that he wants to keep distinct from his marital
assets, thus he should not only declare this intent when he signs the pre-marriage contract, but
37
he should be sure to not utilise marital assets to enhance, enlarge or repair the property. Using
marital assets on separate property can result in the comingling of the two types of assets. If
this happens, one spouse's separate property may be subject to a claim from the other spouse,
as it can be hard to distinguish between what is truly his or her own as opposed to what has
been used to acquire marital assets.
Prenuptial agreements must also include details on how gifts, inheritances, and other forms of
property obtained during the marriage, as well as damages resulting from lawsuits or
settlements, would be handled. Due to the possibility that premarital property can be turned
into marital property later, either by agreement or by operation of law, clauses should be
included regulating the distribution of property value in the event of an increase in value
when assets are split up.
With this in mind, consider a scenario where the husband and wife each contribute INR 10
lakh toward the purchase of a famous painting valued INR 50 lakh. Assume, for the sake of
argument, that the husband enjoys art and takes care of the artwork. After ten years of
marriage, the couple decides to part ways, and the painting's worth has risen to INR 90 lakhs.
If a prenuptial agreement does not specify how jointly acquired marital assets will be divided,
it may be unclear as to who is entitled to the picture in question. Questions might arise about
how much each of them contributed to purchase price if they chose to sell painting and divide
proceeds amongst themselves, depending on their respective contributions or in some other
proportion. The spouse may be entitled to a share of the sale earnings equivalent to or greater
than his share if he can prove that the painting's value increased as a result of his care and
maintenance. If the couple had signed a prenuptial agreement outlining how their assets
would be divided, this matter would have been much easier to resolve.
Before getting married, couples should talk about how they want to pay off any future marital
debts, whether they want to pool their own finances or keep a portion of their earnings
separate for the marriage. Proper paperwork should be kept and reflections should be
included in the prenuptial agreement as to each spouse's contribution, as well as how they
desire to manage the joint finances after the marriage if money gained previous to marriage is
being utilised for this purpose. Determining how common home expenses will be paid and
how much of a burden each spouse will bear should also be included in the prenuptial
agreement.
38
Prenuptial agreements should specifically state that if either or both couples have an existing
business endeavour, then the business or any asset associated with it will not be considered
marital property, even if the other spouse wishes to acquire a stake in the business. These and
other assets owned by a married couple may also be subject to exclusionary clauses under the
terms of a prenuptial agreement depending on the personal preferences of the spouses
involved.
Prenuptial agreement clauses that stipulate that the gifts an Indian bride receives in marriage
are her stridhan, which means that she is entitled to all of them, and her husband and in-laws
are not entitled to any of them, are also important considerations for prospective Indian
brides. It is also possible to include sections specifying how property would be distributed in
the event of the death of one partner without any surviving children, which could serve as a
testamentary instrument under current will-related law.
As an added precaution, prenuptial agreements should require that both parties make an
honest disclosure of their financial assets and liabilities before the wedding. If both spouses
have access to this information, they can make an educated decision about their marriage and
the associated financial considerations, keeping in mind the other spouse's financial situation.
It is preferable to include a penalty clause that provides for a penalty if unreported assets or
liabilities, which were possessed at the time of marriage, are discovered.
2. Related to children’s clauses
Prenuptial agreements can also include provisions pertaining to children and matters
associated with them. A prenuptial agreement could protect the assets of a spouse's children
from previous marriages if one or both of the parties has children of their own. It is possible
for couples to ensure that their children from previous marriages will not be denied their
rightful share of their deceased spouse's assets by including specific clauses in their
prenuptial agreement, which can legally be regarded as testamentary pronouncements for the
purposes of succession in the event of the spouse's death during the course of marriage or
during the divorce proceedings. Prenuptial agreements may be able to provide terms for
children's inheritance, but they may not be able to include rules for child custody, visitation
rights, or child support that must be paid in the event of a divorce. Because custody and
visitation decisions are made based on the principle of the best interest of the kid, this is why.
Contracting or enforcing severe limitations on custody or visitation is not possible because
39
there is no formula that can be followed in all circumstances to objectively determine what
constitutes best interest. There are several factors that might influence a court's opinion of
who should have primary custody or who is a threat to the child's holistic development,
including the changing circumstances of both parents and the time period. This means that
prenuptial agreements cannot be used to limit judicial decision-making since such clauses
could be deemed unenforceable by a court of law.
The enforcement of such restricted clauses may be potentially injurious to the child's interest,
as it would allow even an abusive parent to have custody of a child merely because the
prenuptial agreement states so. In the case of visiting rights, prenuptial agreements should not
contain language that may impede the court's determination of whether a parent should be
granted such an opportunity, which is in any case a decision based on a variety of relevant
circumstances.
A prenuptial agreement should not attempt to control the amount of child support paid since
any cap, no matter how high or low, cannot accurately anticipate the costs that the couple's
children would suffer in the future because it is difficult to forecast how many children will
be born, when they'll be born, the rate of inflation at the time, and the particular
circumstances surrounding their birth. But prenuptial agreement clauses can be used to
specify the minimum threshold for the upkeep of children, by dealing with issues such as the
type of schooling to be provided, the nature of extracurricular activities that the children
should be able to participate in and by providing for the fulfilment of basic needs such as safe
living conditions, proper nutrition.
3. Spousal rights duties clauses
Couples should discuss how they want their marriage to work before getting married.
Allowing each spouse to make their own decisions at any time during the marriage can assist
ensure that their freedom of choice is not restricted. In a marriage, it might be helpful to talk
about the expectations each spouse has for the other and the terms they have agreed upon
regarding their respective rights and responsibilities.
It is possible for a couple to specify or exclude particular rights and responsibilities that each
of them has in connection to the marriage based on their individual needs. However, there are
a few that spouses should seriously consider including in their agreement, even if the
40
possibilities for provisions are numerous.
A language in a divorce agreement that provides for the payment of compensation for proven
marital cruelty or torture by either spouse may be an important safeguard against domestic
violence. As a means of deterrence, it is important to make sure that the amount indicated as
compensation is large enough to be perceived as a significant sum of money by the spouse on
whom it could potentially be applied. An emphasis should be placed on the requirement for
an allegation of cruelty to be proven legally before a compensation clause can take effect. As
a prenuptial agreement, it is recommended to include only the least amount of compensation,
so that the adjudicating court does not limit its ability to pay requisite compensation under the
Protection of Women from Domestic Violence Act, 2005. Using the prenuptial agreement as
a tool, spouses can specify the circumstances under which they are allowed to remove
themselves from their spouse's vicinity or cease association with their spouse with
"reasonable excuse," and are not vulnerable against their will to be returned by virtue of an
order of restitution of conjugal rights against their will.
As part of the prenuptial agreement, there may be clauses that deal with medical problems,
such as a description of the healthy spouse's obligation to pay for his or her partner's medical
expenses. Such clauses must also address the nature of duties in the event that a working
spouse becomes unable to earn the same amount of money as before due to a physical
condition that develops during the marriage. Also included should be provisions indicating
the amount of insurance coverage the couple will have together. They may also elect to set
aside a certain amount of money each month or year for medical expenses, and specify how
much of that money can be used to cover each other's medical expenditures in the event that
one of them suffers from a serious illness. People with chronic illnesses or disabilities
(physical or mental) at the time of marriage may find these clauses particularly important in
determining how medical bills will be handled after the marriage.
For married couples who intend to inherit assets in the future from a financially wealthy
family, it is recommended that they include sections defining the rights of their spouse to use,
hold or usufruct the inherited property, either alone or in conjunction with them. This
agreement may also apply to the manner in which one spouse receives government, job, or
private help and how that support is shared. Specify in the prenuptial agreement if a husband
or wife has a job or vocation that provides for preferred employment of a family member in
the event of their death, and the prenuptial agreement will be enforceable. The prenuptial
41
agreement can also be used to discuss the wife's need to change her surname after marriage.
However, under Indian Evidence Act, 1872, such evidence is not admissible, a penalty clause
can be included in prenuptial agreements to punish the couple if they violate their trust by
disclosing private communications between them or otherwise in a court of law. This type of
prenuptial agreement can also be used by couples as a way to ensure that information about
the other spouse's past criminal history, ongoing litigation, prior marital status, and any
allegations of marital misconduct made against that spouse are disclosed to each other and
enforced through penalties.
4. Lifestyle clause
Prenuptial agreements' contractual nature and the absence of a legally defined form allow for
minute customization of its clauses. Incorporating 'lifestyle provisions,' which deal with the
way a couple will live together and the principles and standards that each spouse must adhere
to, into prenuptial agreements gives couples more freedom. Non-famous couples can utilise
prenuptial agreements to include lifestyle terms that allow them to select how they want to be
as a pair, notwithstanding their celebrity status.
It is possible to utilise lifestyle provisions to govern the couple's entire life, from the wedding
until their divorce. Because of the wide range of clauses that can be used, a bride or groom
may wish to include a specified number of events, select a venue, or even designate a specific
theme for their wedding ceremony. Prenuptial agreement clauses may also be used to define
whether the pair will live together as a married couple or as a couple with each other's
families, based on their financial resources.
There is much less chance of one spouse trying to impose their will on the other because
prenuptial agreement lifestyle clauses, like all other clauses, are only effective with the
voluntary assent of both parties. Prenuptial agreements can be voided by establishing
coercion, fraud, undue influence, or mistake in the instance of a spouse who is forced to sign
one and does not voluntarily consent to its terms.
Using lifestyle terms in a prenuptial agreement can also help couples decide where they'll live
and what kind of housework each of them will be responsible for. If the couple owns a pet,
the prenuptial agreement can be used to outline the pet's custody rights in the event of a
divorce or separation. Couples who believe in different religions may include a section in
42
their prenuptial agreement specifying the religion their children will be reared in. When two
people have a prenuptial agreement, it is recommended that the agreement explicitly states
that neither spouse can force the other to adhere to his or her religious beliefs, nor can the
other be prevented from practising their religion unless it is harmful to the health of the
family or has a negative impact on society.
If the adulterous relationship is proven in court, the unfaithful spouse may be obliged to pay a
fine or give up their share of the marital assets, depending on the terms of the fidelity clause.
There may also be penalties for bad habits such as gambling, drug abuse, or alcoholism in the
prenuptial agreement that the errant spouse will have to pay either in money or by waiving
their rights, if they violate the prenuptial agreement's stipulations. Couples may also consider
specifying through a social media clause, the sort of content involving each other, each
other's families, friends, or their relationship that each of them can post on various social
media sites.
5. Operational clause
Prenuptial agreements can also include operative terms and expiry clauses based on the
spouses' personal understanding. A prenuptial agreement could be triggered by a specific
event, such as the death of a spouse or the birth of a child. If the couple agrees, further
operational terms dealing with the operation of certain prenuptial agreement clauses may be
included. Rather than being bound by the provisions of the prenuptial agreement as soon as
they get married, this gives the couple some leeway to postpone its implementation based on
relevant circumstances.
Divorce, legal separation, evicting a spouse from the marital residence, and serving divorce
papers are all examples of operational events that can occur apart from a marriage. An
alternative is to include a sunset clause, which can be used if the couple feels that the
prenuptial agreement will no longer be necessary to manage their partnership as time goes on.
Prenuptial agreements can have sunset clauses that allow them to expire after a specified
number of years of marriage or after the birth of the couple's second child. It is also
recommended that prenuptial agreements have an amendment clause, which allows the
parties to change the terms of the agreement if their relationship and surroundings change.
43
SUGGESTIONS
The All-India Muslim Personal Law Board, the All India Shia Personal Law Board, and the
All India Muslim Women Personal Law Board all presented their initial versions of a model
nikahnama in 2005, 2006, and 2008, respectively.
Newer terms have been inserted into the conventional document to better protect the rights of
both spouses, with a particular focus on protecting Muslim women' interests. Compulsory
marriage registration was offered with model forms in the All-India Muslim Women Personal
Law Board's draught Muslim Marriage Act, which was based on Shariat nikahnama. Both
Hindi and Urdu versions of the dikkahnama were required in this edition, so that parties who
could not know Urdu could fully understand the document's implications. Both spouses
should be given copies of the agreement drafted by the All-India Muslim Personal Law Board
in an effort to standardise marriage contracts across different sections of the Muslim
community. The terms of the agreement could potentially provide for gold or silver or
immovable property as dower and define the roles of the spouses in the relationship.
In addition, Ameer Ali, a Muslim jurist, outlined a number of provisions that would be
enforceable under the law in the context of a Muslim husband and wife's marital contract.
This section goes through several additional terms that can be beneficial to Muslim brides
when they are written down in the nikahnama.
1.1. ‘no polygamy’ clause
Islamic law allows for polygamy, or the practise of having numerous wives. As a result of
this polygamy clause in the personal law, Muslim men in India have been allowed to have
four wives for many years now. Due to the lack of consensus among Muslims in India on the
issue of prohibiting polygamy, the practise continues either openly or clandestinely, with
Muslim men citing Islamic teachings to support their multiple marriage. However, the
Supreme Court of India has made it clear that the right of a Muslim citizen to exercise or
profess his faith does not include the right to participate into polygamous marriages.
The Supreme Court ruled in Begum Subanoo v. A.M. Gafoor30 that a Muslim man's vows of
faithfulness to his first wife are violated when he marries a second woman, causing her
marital harm. A Muslim man is allowed to marry more than one wife under personal law, but
30
Begum Subanoo v. A.M. Gafoor, (1987) 2 SCC 28
44
the Code of Criminal Procedure's section 125(3)31 treats all subsequent wives as mistresses,
according to the court. A husband's polygamy might harm his wives, according to the General
Recommendations of the Committee on the Elimination of Discrimination against Women,
which is an international body, in countries where equality is a fundamental right, polygamy
is in breach of Article 5(a)32 of Convention on the Elimination of All Forms of Discrimination
against Women in addition to violating its general recommendation No. 21.
Contrary to what the Supreme Court of India has said, there is no Indian law or precedent that
prohibits or makes polygamy among Muslims illegal in its entirety. This means that for
Muslim women, just relying on her husband's promise that he won't marry another woman
when the law does not prevent it may be a terrible bet in some instances. Consequently, a
Muslim bride should add a 'no polygamy' language in her prenuptial agreement in order to
prohibit her spouse from engaging into a second marriage during the course of their marriage.
Historically and currently, Muslim women have the right to stipulate essential provisions in
their nikahnama in order to prevent polygamy, as noted by academic Faizan Mustafa and
women's rights lawyer Flavia Agnes.
In addition, a prospective wife may stipulate, based on her financial and social circumstances,
that if her husband enters into a second marriage during the course of their marriage, she is
free to live apart from him and holds him financially responsible for her support at that time.
If the husband commits polygamy, the woman has the option of initiating divorce in the form
of khula or talaq-al-tafwid, if she has been granted the right to do so.
1.2. Expressly negating the need of nikah halala
When a woman has been divorced by three pronouncements, she cannot remarry her ex-
husband without first marrying another man, consummating the marriage, and getting
divorced by him. This is known as nikah halala in Islamic law. Despite the fact that the
constitutionality of triple talaq (talaq-ul-biddat) has been upheld, the requirement for nikah
halala remains because of the existence of talaq hasan, another form of Islamic divorce in
which the husband issues a talaq three times, each time with a one-month interval, and
refrains from physical contact with his wife during that time period. The hazards of a nikah
halala marriage are their own. There may be instances in which the temporary husband
31
Code of Criminal Procedure, 1973, § 125(3), Acts of Parliament, 1973 ( India)
32
Article 5(A)
45
refuses to divorce the wife in accordance with the halal character of their marriage due to the
fact that Sharia law does not allow for mut'ah marriages (conditional marriages) among
Sunnis. According to a recent study in India, women who wish to fix their broken marriages
are being forced to pay high price for a 'professional' service for nikah halala.
Nikkah Halala is a tradition that has been disputed by Sharia law, although it is still widely
practised by Muslim groups in India. Muslim women should urge in their nikahnama that an
exclusion for remarriage to her ex-husband post-divorce be included, so they can protect
themselves from being exploited by this heinous behavior. This is the only way to ensure that
Muslim women do not become victims of it. Further, the requirement may provide that once
the iddat period has expired, the ex-husband and ex-wife can get married again to anybody
they choose, including each other.
1.3. Clause determining and guaranteeing mehr in addition to

maintenance
Due to their marriage, the husband is expected to pay his wife an agreed-upon sum of money
as a token of gratitude. A quick dower is one that is paid immediately, while a deferred dower
is one that is paid after a specified event occurs. All of the mehr belongs solely to the wife,
and the husband owes it to his heirs after he dies. When a husband dies or the marriage breaks
down, the dower is meant to provide the wife with a source of income.
More is not the same as maintenance, despite the fact that it is intended to give support for the
woman during or after the dissolution of the marriage. This means that a Muslim husband is
obligated to sustain his wife, independent of any previous payment or duty to pay the mehr,
both during and after the termination of marriage. As a debt, the husband's duty to support his
wife is distinct from the husband's duty to provide for her as a lifelong marital commitment.
In order to avoid being shortchanged later, it is recommended that a Muslim bride specifically
declare in her nikahnama that her husband's commitment to sustain her is separate from and
in addition to his duty to give her dower. A clause like this should make it clear that the
payment of dower does not affect the wife's ability to sue her husband for support during or
after the marriage, regardless of how large the lump sum payment is. It is important that,
while stipulating her dower, the bride makes it clear that the money will be used to support
46
her and her family throughout the life of their marriage, and not just as a token of her
gratitude at the conclusion of it.
1.4. Determination of maintenance payable after iddat period
If a divorced wife was proven to be pregnant as a result of her marriage, she was only entitled
to support up to the end of her iddat period, according to traditional Islamic law. Divorced
Muslim women were sometimes left impoverished and homeless following the end of the
iddat period as a result of this legal position. According to Code of Criminal Procedure 125 33,
Muslim women now have a right to maintenance, as the Supreme Court attempted to do in
the Shah Bano case. In 1986, a new law called the Muslim Women's (Protection of Rights on
Divorce) Act restored the traditional legal standing for Muslim women who were divorcing.
Finally, the Supreme Court of India's decision in Danial Latifi v Union of India reinforces the
right of a divorced Muslim woman even after the completion of the iddat period or her
pregnancy, as the case may be.
After the iddat time has passed, ex-husbands are compelled by Supreme Court ruling to make
a reasonable and equitable financial provision for their ex-wives. A provision that is
reasonable and fair is not specified by the court and thus, is open to judicial interpretation,
which means that the provisions made in one instance may differ from those in another.
Muslim brides should include in their prenuptial agreement what kind of maintenance they
expect from their spouses following iddat in order to eliminate the uncertainty that such a
court process implies.
Courts could at least use such a requirement to help them make their decision.
Stipulating precise percentages of husband's income as a gradation for the calculation of her
maintenance is recommended, according to experts. It is possible that she will receive INR Y,
if her husband's income is equal to or larger than the specified amount, or INR Zx2 when her
husband's income is equal to or greater than the given amount. A provision like this might
also provide for an annual increase in the amount of maintenance that may be due following a
divorce, protecting the financial interests of the divorcee lady in the wake of inflation.
1.5. Clause prohibiting nikah mut’ah.
33
Code of Criminal Procedure, 1973, § 125, Acts of Parliament, 1973 ( India)
47
Nikah mut'ah is essentially a short-term, pleasure-based marriage recognised by the Shia

faith. Muslim males can contract a marriage for hours or days to have sexual intercourse,
generally for a fee; they do not enter into a long-term marital relationship as a result of this
practise. According to some academics, the practise of "prostitution" in Islam, known as
"nikah mut'ah," can be justified within the context of Islamic tradition. As there is no
minimum length for the nikud, it can last anywhere from a few minutes to a few months at a
time. This allows Muslim males to have sex with several women without being labelled as
sinners because of the transient nature of these marriages.
Muslim men are allowed to have sexual relations with women they "marry" temporarily,
which can lead to marital tensions, as the mut'ah type of "marriage" allows men to have
sexual relations with women they "marry" for the purpose of having sexual relations with
them, which is a violation of their wives' trust and demeaning to their wives. The Muslim
bride should mention in the nikahnama that the husband is barred from entering into such
weddings as a wise step to reduce the likelihood of such disagreements. Contractual
restrictions on mut'ah marriage will go into effect the moment the husband signs the
nikahnama accepting the condition therein. Although the bride should choose punishments
that are severe enough to serve as a strong deterrence to her husband, this clause must also
specify the possible repercussions of her husband breaking the limitation in order for it to be
truly effective.
1.6. Delegation of right to divorce to the wife
Talaq-e-tafwid refers to a Muslim husband giving his wife the right to divorce. As an
agreement between husband and wife that can be detailed in the marriage contract (the
nikahnam), talaq-e-tafwid allows the wife to end her marriage to her husband without the
need for legal involvement. Some experts believe that the right to divorce might be delegated
by the husband in a subsequent document, rather than just by virtue of the nikahnama.
It is impossible for a husband to take back a right that has been delegated to his wife once the
delegation has been completed. When a specific contingency occurs, the wife has the ability
to exercise this right at any time following the occurrence of the event, and the mere non-
exercise of this right does not diminish the effect of this right vested in her. Talaq-e-tafwid is
legal if the right to divorce is properly exercised by the wife on the basis of one of the
prescribed conditions. If the husband violates any of the terms of the contract, the divorce
48
may be automatically granted. This depends on the nature of the specifications.
The right to unilaterally dissolve one's marriage under a system that traditionally favours the
right of a man to decide when he will "free" his wife from the bonds of their marriage, we
recommend that Muslim brides consider insisting on including a clause allowing them to
unilaterally dissolve their marriage in their nikahnama, so that they can begin their marriage
with equal bargh (joy). To ensure that her right to divorce is protected, the bride should
carefully review the stipulations for talaq-e-tafwid and negotiate the inclusion of required
preconditions. The nikahnama, which is the contract signed before the wedding, should have
a clause like this to protect the rights of the brides-to-be and prevent them from being
exploited during the marriage. Nikkah should clearly state the kind and amount of alimony,
along with the rights and responsibilities of spouses in case the wife divorces herself, in order
to eliminate the possibility of confusion when Talaq-e-tafwid is used later on.
While noting the potential benefits, we also voice our worries about the concept of divorce
without the intervention of the courts. Accordingly, talaq-e-automatic tafwid's divorce on the
occurrence of specified events or the entire control of the woman over the process of divorce
might be problematic in many situations. This is clear. The nikahnama of a husband D who is
emotionally bonded to his future wife E may include a clause stating that if he is unable to
meet her material desires after marriage, she can apply talaq-e-tafwid. We may threaten to
divorce D if D is unable to give her with a designer handbag after marriage since the price is
too high for him to afford.
It is recommended that the terms allowing the exercise of talaq-e-tafwid be as specific as

feasible in order to maintain equilibrium in such instances. In addition, the nikahnama should
give the husband a chance to contest the divorce in court if he can show that he has good
reason to oppose it. In such instances, the divorce may be assumed genuine to protect the
wife's interests, at least in the early stage, with the burden of demonstrating otherwise falling
on the husband.
49
CONCLUSION
Prenuptial agreements tailored to the needs of Indian couples have a lot of potential, but a
lack of precise legislative direction could represent a severe obstacle to their effective use as
instruments for evaluating the complicated dynamics of a married relationship. It's
unfortunate that a lack of proactive state deliberation to recognise and regulate prenuptial
agreements is acting as an impediment to Indian couples consensually setting the terms on
which they want to be married, despite the potential benefits that prenuptial agreements could
bring to the marital framework. Some of the most common objections to prenuptial
agreements can be easily disproved, as demonstrated in the paper, Even though prenuptial
agreements have been shown to violate Indian legal precedent, it is possible to craft them so
that they don't do so. According to this, the validity of prenuptial agreements in countries
around the world is evidence that the conditions of such agreements can be implemented.
Since prenuptial agreements have the potential to destabilise the close-knit social fabric of
Indian families, many people are wary of them. Our perspective on prenuptial agreements
should be re-examined in light of recent changes to the law of family in India and elsewhere,
some of which have been discussed in this paper. We think that giving spouses the freedom to
work on a unified plan that spells out what they want from each other and from the marriage
can not only help make sure that both people have an equal footing in the relationship, but it
can also help protect both people, especially the woman in these cases, from the kinds of
injustices that are common in marriages in India.
Due to their contractual nature, prenuptial agreements can be analysed under the section 32
Indian Contract Act, 187234; yet the Indian personal law already in place for these agreements
is woefully short on coverage for such arrangements. It remains to be seen if marriage
arrangements in India should be treated as commercial contracts in the lack of clear legal
guidance on the matter. Prenuptial agreements may not be best approached in this manner,
given that couples are more likely to enjoy love relationships where bargaining tends to be
altruistic and magnanimous. Contrast this with the commercial world, where mapping the
future of a connection is rather straightforward; in a marriage this is not the case; unforeseen
disasters, undiscovered pathways, and rising opportunities may push couples to rethink their
plans, as they are "[e]envisioning the end of a marriage that has not yet begun" and
attempting to plan a relationship that has not yet materialised. As a result, commercial and
34
Infra 1 page 4
50
marital contracts would have to be handled differently.
Because of this, we believe that there is a need for a thorough examination of how prenuptial
agreements can be controlled, as well as the adoption of such regulations into the Indian legal
system after they have been developed. The Supreme Court of India has yet to issue a final
ruling on the nature and scope of legality of prenuptial agreements, so it would be beneficial
if an executive guidance note or necessary legislative provisions were added to personal laws
to address this issue. If the Indian legislature and executive recognise the importance of
prenuptial agreements in today's India, we hope that they will also consider the creation of
one or more model prenuptial agreements that can be used by couples in India when they are
drafting their own prenuptial agreements in order to ensure that they are legally valid.
51
RESEARCH METHODOLOGY
The methodology that would be applied for carrying out this research is Doctrinal, Analytical
and Comparative research. In this research the primary sources of data are the Constitution,
Indian Contract Act, 1872, Indian Evidence Act, IT Act, Indian Penal Code, Specific Relief
Act, Limitation Act, Rules, Government Orders, Judicial Precedents, Report of various
Committees. The secondary sources of data comprise of published books, journals, scholarly
articles, news releases, print media, online journals, research reports and others were used.
52
BIBLIOGRAPHY
 ARTICLES
 Leong Wai Kum, The Law in Singapore on Rights and Responsibilities in Marital
Agreements, 10 SING JLS 108 (2010)
 Harsimran Singh, Section 23 Of Indian Contract Act – Lawful Considerations And
Objects, Mondaq, (last visited June 11, 2022),
https://www.mondaq.com/india/contracts-and-commercial-law/447438/section-23-of-
indian-contract-act-lawful-considerations-and-objects
 Pankhuri Pankaj, Unlawful Consideration and Unlawful Object under Contract Law,
LEXPEEPS, 2020
 B.V.R. Sarma, Lawful objects and considerations under Section 23 of Indian Contract
Act 1872 – An analysis, MANUPATRA, (2020)
 BOOKS
 Avtar Singh,
 CASE LAWS
 Begum Subanoo v. A.M. Gafoor, (1987) 2 SCC 28
 Fender v. St John Mildmay, (1938) AC 1
 Radmacher v. Granatino, (2010) UKSC 42
 Peter Philip Saldanha v. Anne Grace Saldanha, (1930) 32 BOMLR 17
 Sheonarain v. Paigi, (1885) ILR 8 All 78
 Tekait Mon Mohini Jemadai v. Basanta Kumar Singh, (1901) ILR 28 Cal 751
 Pran Mohan Das v. Hari Mohan Das, AIR 1925 Cal 856
 Sandhya Chatterjee v. Salil Chandra Chatterjee, AIR 1980 Cal 244
 Printing and Numerical Registering Co. v. Sampson, (1875) 19 Eq 462
 Bai Fatma v. Ali Mahomed Aiyab, (1912) 14 BomLR 1178
 Radmacher v. Granatino, (2010) UKSC 42
 Ahmad Kasim Molla v. Khatun Bibi, AIR 1933 Cal 27
 Muhammad Muin-Ud-Din v. Musammat Jamal Fatima, (1921) ILR 43 All 650
 Buffatan Bibi v. Sheikh Abdul Salim, AIR 1950 Cal 304
53
 Mozelle Robin Solomon v. Lt. Col. R.J. Solomon, 1979(81) BOMLR 578
 SECTION/ARTICLE
 The India Contract Act, 1872, § 23, Acts of Parliament, 1872 ( India)
 Code of Criminal Procedure, 1973, § 125(3), Acts of Parliament, 1973 ( India)
 Article 5(A)
 Code of Criminal Procedure, 1973, § 125, Acts of Parliament, 1973 ( India)
 Divorce Act, 1869, § 40, Acts of Parliament, 1869 ( India)
 WEBSITES DATABASES
 www.scconline.com
 www.jstor.com
 www.heinonline.com
 www.manupatra.com
54

Critical Analysis of Public Policy

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KIRIT P.

MEHTA SCHOOL OF LAW

SCHOOL OF LAW, NARSEE MONJEE INSTITUTE OF

SUBMITTED TO: SUBMITTED BY:

Prof. Alisha Thomas Full name – Nitya Jhanwar

Assistant Professor of Law SAP ID – 81022100108

NMIMS (SOL), Bengaluru BBA.LL.B. 1st Year

SR. NO CONTENTS PG. NO.

8 MEANING, SCOPE, NATURE OF

WHAT CONSIDERATION AND OBJECT ARE UNLAWFUL?

1. Pankhuri Pankaj, Unlawful Consideration and Unlawful Object under Contract

Law, LEXPEEPS, 2020. 4

2. Planning for love: The policies of prenuptial agreements

1. Furmston & Michael, Cheshire, Fifoot, & Furmston's Law of Contract,

 Under which criteria the agreements become unlawful.

3. Avtar Singh, Contract & Specific Relief Act (EBC 2018)9

HYPOTHESIS: Do Indian laws need to be strengthened when it comes to prenuptial

 To know public policy

 To know prenuptial agreements

 What are the different heads of public policy?

 What is the status of prenuptial agreements globally?

MEANING, SCOPE, NATURE OF UNLAWFUL AGREEMENTS

i. OVERVIEW OF PUBLIC POLICY

An agreement is deemed illegal by the court if it is deemed to be against public policy.

Some public policy-related observations from the perspective of English law:-

If a contract appears to be contrary to public policy in England, it is quite well-established.

Heads of public policy

1. EXCHANGE WITH THE ENEMY

2. PUBLIC OFFICE TRAFFICKING

3. CONTROL OF JUSTICE ADMINISTRATION

An agreement intended to impede the administration of justice is clearly in violation of the

(a) TAMPERING WITH THE COURSE OF JUSTICE

4. MARRIAGE BROKERAGE CONTRACTS

5. DEALINGS THAT AREN’T JUST, REASONABLE, OR CONSENSUAL

ii. OVERVIEW OF PRENUPTUAL AGREEMENTS

iii. OVERVIEW OF PRENUPTIAL AGREEMENTS IN INDIA

As a result of modernization, women's educational and financial empowerment, and the

A. PRENUPTIAL AGREEMENTS FROM THE POLICY POINT OF VIEW

B. PUBLIC RECEPTION TOWARDS PRENUPTIAL AGREEMENTS

Despite this, a growing percentage of wealthy couples appear to choose prenuptial

iv. ADDRESSING RESISTANCE TO PRENUPTIAL AGREEMENTS

A. ON THE EFFECT ON THE SANCTITY OF MARRIAGE

B. ON THE POTENTIAL OF MISUSE OF EMOTIONAL AFFINITY

Another benefit of legal recognition is that if prenuptial agreements operate according to

C. ON THE POSSIBILITY OF EXPLOITATION OF VULNERABLE WOMEN

Moreover, some critics of prenuptial agreements may consider prenuptial agreements as

D. ON PUBLIC POLICY CONCERN

v. THE STATUS OF PRENUPTIAL AGREEMENTS: A GLOBAL OVERVIEW

A. PRENUPTIUAL AGREEMENT IN CHINA

B. PRENUPTIUAL AGREEMENTS IN TURKEY

property during a divorce or separation, allowing for a more equitable distribution of

vi. CONCEPTUALISING MODEL PRENUPTIAL AGREEMENTS FOR INDIA

It is a well-known truth that the efficiency of a household is directly related to the

scholars. If an adjudicating court, when evaluating prenuptial agreements, is exercising its

In light of this, prenuptial agreements cannot be handled by either party in an absolute

A. VIEWING THE NIKAHNAMA AS AN INSTRUMENT FOR THE BENEFIT

expected to be placed in an underprivileged position within the family. We contend, however,

1. Prenuptial agreements in Hindu marriages

1.1. Invalid prenuptial agreements

As previously stated, Indian courts have consistently refused to enforce prenuptial

1.2. Valid prenuptial agreements

The post-nuptial agreement case of Sandhya Chatterjee v. Salil Chandra Chatterjee 21 is