PreNuptial Agreements in India

Presented by:
Amartya Vikram Singh
Roll No: 18207
Group No: 34
 INTRODUCTION

 To combat this millennial yet contemporary issue where divorces between spouses end up in unjustified distribution of assets, societies came up with a

contract called Pre-nuptial, Pre-marital Agreement also called a Prenup

 It is a contract entered into by couples who intend to solemnize their wedding whereby applying various terms and conditions on their marriage and

providing safeguards for themselves in case a situation of dissolution arises.

 Prenuptial agreements are now being widely used across the world as effective instruments of delineating spousal rights in the course of subsistence of

marriage as well as in the event of termination of marital relations.

COMPOSITION OF PRE NUPTIAL AGREEMENTS

Ideally, A prenuptial agreement must contain few of the following clauses :

 Disclosure of assets and liabilities

 Financial or monetary position

 Real estate properties

 Shared properties

 Division of properties

 Separate properties

 Alimony or maintenance

 Child custody & Maintenance

ESSENTIALS

The prerequisites for a pre-nuptial agreement are :

 The prenup should be fair, reasonable and duly acknowledged.

 The prenup should be certified by attorneys of both the parties.

 A list of assets and liabilities of both the spouses must be attached along.

 A clause that states that even if a certain provision is null and void, the other provisions would still hold legal and valid, should be mandatorily be
covered in the prenup.

 The prenup should contain details of the agreed issues like maintenance/alimony, division of assets and liabilities in case of dissolution of marriage
that both the parties have decided together
PRE NUPTIAL AGREEMENT IN INDIA

 India has no law on prenuptial or post nuptial agreements. Such agreements are not common in India and are contrary to Indian customs and views
about marriage.

 On one hand, the nikahnama, a prenuptial agreement is recognised as an essential feature of Muslim marriages in India and the role of prenuptial
agreements in determinations at the time of termination of Christian marriages is legally acknowledged. On the other hand, the enforcement of
prenuptial agreements in relation to other religious communities has largely been dependent on judicial interpretation.

 Islamic marriages in India are governed by Muslim law. The Muslim Women (Protection of Rights on Divorce) Act provides for the enforcement of
sums due under the contract signed by the parties as their marriage contract (mahr) even after period of Iddat.

 It is therefore essential to understand that while prenuptial agreements might be a valuable way for parties in India to express their intention concerning
the nature of their financial relationship, it is not possible to assure -- or even to expect -- that such agreed terms will be upheld in an Indian court.
International clients should also anticipate that prenuptial and post nuptial agreements entered into while they reside outside India will likely not be
enforced if either of them should initiate a divorce case in an Indian court.

 India ,which is numerically predominantly Hindu or governed by Hindu Marriage Laws, Marriage is considered as a religious alliance of a man and a
woman for life and thus a prenuptial agreement is legally not valid under the Hindu Marriage Act, 1955 in India, however it is governed under the
Indian Contract Act, 1872. In India, since marriage isn't considered a contract, it is very rare that you'll see or hear a couple getting a pre-nuptial
agreement Under the Muslim Laws and to an extent in Christian Laws, marriage is considered to be a contract between the marrying couple, and with
that contract comes certain automatic property rights for each spouse
LEGALITY OF PRE NUPTIAL AGREEMENTS IN INDIA AND JUDICIAL PERSPECTIVE

 Prenuptial agreements are not recognized under the marriage laws in India. They find a specific mention only in
Section 40 of the Divorce Act, 1869 (one of the few personal law codes that govern Christians). This section
states that the District Court may look into “the existence of ante-nuptial or post-nuptial settlements” before
deciding upon the dissolution of a marriage.

 The State of Goa, the only one with a Uniform Civil Code (on the lines of the Portuguese Civil Code, 1867),
allows for prenuptial agreements under family law for property distributions.

 The contract of marriage or nikahnama can bear clauses to protect the right of the woman and the children born
out of the marriage. Though, the Muslim personal law bears no mention of prenuptial agreements.

 With respect to the Hindu Marriage Laws, these agreements suffer with the impediment of going against the
sacramental values enshrined therein. Marriage is treated as a “religious bond” as per Indian customs and the
judiciary is inclined, in several cases Tekait Mon Mohini Jemadai vs Basanta Kumar Singh, Krishna Aiyar vs
Balammal to preserve that. The concept of Hindu marriage, as envisaged by Indian courts in various judgements
is more sacramental than contractual, and therefore holding these agreements valid in the eyes of law, would
amount to sacrilege of this conception of marriage.

 .
 From a broader perspective, the prenuptial agreements have legal recognition only under the provisions of the Indian Contract Act, 1872. Section 10 of the
Act states that all agreements are contracts if they are made with the mutual and free consent of competent parties with a lawful consideration for a lawful
object. Sec.10 of Indian Contract Act,1872. Indian courts have been disinclined to provide legal force to these agreements on account of certain terms in
these agreements violating public policy (Section 23, Indian Contract Act 1872 provides for such agreements to be deemed as void

 Although, the Indian Judiciary, hasn’t categorically declared these agreements to be against public policy in their intrinsic value, but has held the inclusion
of few quintessential clauses like “separation clauses”, “no child clauses” to be void, as they violate public policy. Such an approach of the Indian judiciary
can be made patent in the cases like Krishna Aiyar vs Balammal, A.E. Thirumal Naidu vs Rajammal Alias Rajalakshmi

 In Sunita Devendra Deshprabhu v. Sita Devendra Deshprabu , Bombay H.C., Goa Bench, 2017 took the Pre Nuptial agreement into consideration for
deciding distribution of assets between spouses The Pre Nuptial Agreement entered into by the Spouses showed that they had agreed for the regime of
separation of assets. Hence, in this case, the Court considered the Prenuptial agreement for deciding the issue relating to the separation of assets among the
parties, by judging the intention of the parties from the Pre Nuptial Agreement. However, there was no point relating to the validity of the prenuptial
agreement in the judgement.

 Pre Nuptial Agreement have in a sense been given a new and expanded interpretation in the light of K.S.Puttaswamy v. Union of India Placing
“individual” at the core of the entire privacy discussion. includes at its core the preservation of personal intimacies, the sanctity of family life, marriage,
procreation, the home and sexual orientation. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of
his or her life. Personal choices governing a way of life are intrinsic to privacy
 CONCLUSION

 Prenuptial agreements have become extremely popular across the globe, owing to the future stability in life that they offer

 However, the Indian populace has not been able to enjoy these benefits, partially due to the unawareness among the masses, but more so due to the
aversion of the Indian legislative authority and the judiciary towards accepting these agreements.

 In India, PreNuptial Agreements are still considered a taboo, unlike the other western countries. Its validity and constitutionality is unstabilised, and no
accurate decisions have been made yet.

 It must be seen that prenuptial agreements have nothing that contradicts the Indian ethos or public policy considerations, and it is in complete public
interest to provide legal force to these “need of the time” agreements
THANK YOU!