Legal Status of Pre-nuptial Agreements in India

INTRODUCTION[]

In the world where the rate of divorce is at its peak, the prenuptial agreement has become an extremely important tool in avoiding the future conflicts among the partners. Pre-nuptial agreement also known as the prenups is the contract between the spouses that is signed prior to their marriage. It states that the settlement of money between the parties in case of death, divorce or separation [1]. The legal status of the pre-nuptial agreement is complex and nuanced, influenced by various factors including cultural norms, statutory laws and judicial interpretation. In India, unlike some of the western countries, itdoes not have specific legislative framework that recognises or enforces prenuptial agreement. Marriage and divorce in India are governed by personal laws based on religion.

LEGAL STATUS OF PRE-NUPTIAL AGREEMENT IN INDIA[]

Marriages in India are governed by the personal laws. Under theHindu marriage act, 1955 a marriage is not a contract, so prenup is invalid. Though under Muslim law and Christian law, marriage is a form of contract, but they also do not validate prenup agreements. However, it is governed under the Indian contract act, 1872.

Indian contract act, 1872 [2][]

Contract is an integral part of our everyday life, as we engage in number of contracts in the daily basis. Therefore, at the first let understand the essential element for the formation of the contract. According to section 2(h) the Indian contract act of 1872, a contract is an agreement enforceable by law, further section 10 provides a detail definition of the contract as it states that all agreement is contract if they are made by the free consent of parties competent to contract, for lawful consideration and with a lawful object, and are not hereby expressly declared to be void. The origin of the contract is from the offer section 2(a) provides for its definition as it states that when one person signifies to another his willingness to do or to abstain from doing anything with the view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal. Section 2(b) stats that when the person to whom the proposal was made signifies his assent, the proposal is said to be accepted. Section 2(d) states that when at the desire of the promisor the promise or any other person has done or abstained from doing or promises to do or abstain from doing, something, such act or abstinence or promise is called consideration for the promises.

The Hindu Marriage Act,1955 [3][]

It governs the marriage of Hindus and also other sects of Hindu religion, namely Buddhist, Jains and Sikhs, and also the marriages of the people who have converted to any of these religions

Muslim personal law[]

As the name suggest, Muslim personal law is not a parliamentary law, which governs the Muslim marriages and the succession and inheritance processes. The divorce and separation for Muslims are addressed under a separate statute, the dissolution of Muslim marriages act of 1939 [4].

Other personal laws[]

While the Christian marriages are governed by the Indian Christian marriage act 1872 and the Indian divorce act, 1869. While in Parsi it is governed by the Parsi marriage and divorce act, 1936.

Special Marriage Act [5][]

The 1954 special marriage act which originated in the late 19^th century is a legislation that governs the marriages of all Indians living in India or abroad irrespective of their personal faith and religious beliefs. A noteworthy point here is that in any marriage solemnized under this act, none of the personal laws can be said to be applicable.

All these personal laws does not contain any provisions that directly address prenuptial agreements.

In context of the public policy[]

With the evolving time the Indian courts has often examined carefully the prenuptial agreement to meet the arrangement of the public policy. The prenuptial agreement that deceives the institution of marriage or personal laws are unenforceable. For example, agreement that restraint marriage, are declared to be void.

Judicial Judgement[]

Indian courts have addressed prenuptial agreements on a case-by-case basis, examining the specific circumstances and terms of each agreement. The court has upheld parts of prenuptial agreements if they found them fair and equitable, but there is no consistent judicial trend favouring enforcement.

Judgement where prenuptial agreement has held to be invalid:

• TEKAIT MON MOHINI JEMADAI Vs BASANTA KUMAR SINGH

In this case is a significant legal precedent in Indian matrimonial law, particularly regarding the recognition and enforcement of prenuptial agreements under Hindu law. This case the husband has signed a prenuptial agreement that he along with his parents, would live is mother-in-law forever but some conflict arose between the 2 families after 15 year of the marriage and thereafter the husband moved out and demanded that wife should also leave her house and should come to live with him. When this was challenged in the court, the HC held that as this agreement was made to control the rights of the husband given under the Hindu law and held this agreement as void as it went against the policy [6].

1. Shahnaz Bano vs Babbu Khan

In this case, the prenuptial agreement was challenged on the grounds of fairness and voluntariness. The court held the agreement as invalid as it was found to have been signed under the duress and did not provide equitable terms for both parties. Further the terms of the agreement were also found to be contrary to the public policy [7].

All these cases reflect the judicial scrutiny of the prenuptial agreement in India, stressing the importance the essential element of the valid contract that is free consent, fairness and adherence to public policy and personal law principles.

In India, prenuptial agreement is not as common as the western countries. But there are instances where the court has upheld the prenuptial agreement, if they meet legal conditions. Cases where the prenuptial agreement was held to be valid:

• Mohd. Khan v. Ms. Shahmali

In this case, the would-be husband had agreed to live as a Khana damad in the house of her wife’s father. Another condition attached to this was that if the husband would leave the house, then it would lead to a valid ground for divorce and also, he had to pay some money as compensation to the wife’s father for the money spent on the ceremonies in their wedding. Later on, the husband refused from performing his obligations and fled from the house for four years. When this case was brought before HC it said that as Muslim law itself talk about the concept of Khana damad and it is also a very common practice in the region, so this agreement could not be held invalid. The court also held that even though this agreement seems to be against Muslim Law provisions by talking about a possible future separation, it is not and thus is as a valid ground for divorce because here the husband had refrained from performing his part.[8]

• Bai Appibai v. Khimji Cooverji

In this case courtsought to take a balanced view on prenuptial agreements, holding that the dictum in the Mon Mohini case and the Krishna Aiyar case would not be valid where the husband had abandoned the wife and it would also not attract the issue of public policy violation. It was observed that although Hindu law had made the husband tantamount to a ‘deity’ or ‘god’ for the wife, this would not allow a husband to desert his wife, deny the marriage or ignore her. The court further stated that as per the prenuptial agreement, the wife should be granted the requested relief of separate maintenance and residence as long as there was no confusion about her chastity. However, the Court did not give any verdict in favour of the wife receiving ornaments, which was the subject matter of another prenuptial agreement, from the defendant husband due to lack of certainty.[9]

Conclusion[]

The legal status of the prenuptial agreement in India remains uncertain due to the lack of legal framework and varying court judgement. But the prenuptial agreement can be considered as the valid contracts if it follows all the essential elements of the valid contract like free consent, lawful object and consideration, etc. under the Indian contract act of 1872. Further its enforceability depends on numerous factor such as public policy and personal laws. In the coming time, there can be more defined and consistent approach to the prenuptial agreement, due to the shift in the societal norms and change in the legal reforms.

Citation[]

1.Chakravorty, A. (2021) Prenuptial agreements in India, IndiaFilings. Available at: (Accessed: 07 June 2024).

2.The Indian Contract Act, 1872 (1872).

3.Aggarwal, N. (2019) Marriage registration laws in india - complete legal guidelines, iPleaders. Available at: (Accessed: 07 June 2024).

4. Raj, P. (2024) Muslim marriage act 1939: The complete information, Vakilsearch Blog. Available at: (Accessed: 07 June 2024).

5. Aggarwal, N. (2019) Marriage registration laws in india - complete legal guidelines, iPleaders. Available at: (Accessed: 07 June 2024).

6.Tekait Mon Mohini Jemadai vs Basanta Kumar Singh, (1901) ILR 28 Cal 751

7.Shahnaz Bano v. Babbu Khan; 1985 SCC OnLine Bom 200

8.Mohd. Khan v. Mst. Shahmali, AIR 1972 J&K 8.

9.Bai Appibai v. Khimji Cooverji, AIR 1936 Bom 138.