PRENUPTIAL AGREEMENTS: A CRITICAL ANALYSIS
A prenuptial arrangement, also known as an antenuptial agreement or premarital agreement, is an arrangement entered into between the parties agreeing to marry prior to their marriage or legal contract. A prenuptial agreement’s content varies but it usually contains clauses for property partition and spousal aid in the case of divorce or dissolution of marriage. Even though prenuptial arrangements are not recognised by Indian law as part of the marriage laws, however, when couples marry these days, they discuss having a prenuptial agreement to protect their rights.
There is a grey area about prenups, as on one hand there are no such laws governing the same, however on the other hand, they are like any other agreement that are legally binding and enforceable under the Indian Contract Act of 1872. The validity and enforcement of prenuptial agreements, their importance would be analysed in this article.
- Validity and Enforceability of Prenuptial Agreements:
Prenuptial Agreements are seen as a necessary tool in the contemporary world, where divorce happens faster than marriage, metaphorically speaking. Prenuptial agreements are not a recent concept; they have been widely adopted in various religions in various ways. Dower is a concept in Mahomedan marriage that parallels prenuptial agreements. As part of a marriage contract, most Muslim marriages include the agreement of a ‘mahr’ clause, which is a monetary contribution from the husband to the wife. As a result, the idea of premarital agreements has been around for a long time, and every country, culture, and community uses it in various ways.
One of the most significant impediments to the implementation of such agreements is how things are seen in society, and in our society, we believe that the thread that binds two families and partners together cannot be torn at all costs, but rather mended. Specifically, this is the case in Hindu marriage, where marriage is considered as a sacrament. Since the Hindu marriage is founded on sentiments rather than contract, our society is still unable to respond to seeing marriage as a contract. Due to this very reason, it becomes difficult to weigh marriages as a contract under section 10 of the Indian Contract Act, 1872.
Prenuptial agreements are not legal or valid in India because the law does not recognise marriage as a contract. Prenuptial agreements are not widely accepted since marriage is seen as a sacred relationship between husband and wife. These, on the other hand, are regulated by the Indian Contract Act and have the same legal status as any other contract, written or oral.
A prenuptial agreement is acknowledged by the courts, under Section 40 of the Indian Divorce Act, if all parties consent to it and sign it freely, without undue influence, coercion, or threat. Furthermore, the agreement should be equitable, specifically specifying the parties’ assets, personal possessions, and financial assets, and it should be approved by a different lawyer for each party.
Another major challenge to the legality of the prenuptial agreements is “their violation of public policy”. According to Section 23 of the Indian Contract Act of 1872, if the purpose or consideration of an agreement is contrary to public policy, the agreement is considered unlawful and therefore invalid and unenforceable. It is important to remember, however, that neither the ICA nor any other legislative enactment provides for a definitional interpretation of the term “public policy.” Indian courts have also shown a willingness to define “public policy” in a rigid manner.
In the case of Tekait Man Mohini Jemadi v. Basanta Kumar Singh, the Calcutta high court held that provisions in a prenuptial agreement stating that the husband was not able to take the wife away from her mother’s house and that he was required to adhere to anything as retreated by his mother-in-law without disagreeing were void as it was against the public policy. Similarly, the Allahabad High Court ruled that a prenuptial arrangement asking the husband to live in his wife’s house indefinitely was against public policy because it was deemed to be a restraint on the husband’s liberty as seen in religious texts and the Hindu laws. In another case, the Calcutta High Court ruled that a prenuptial agreement providing for separate maintenance for a Muslim wife was not against public policy.
Given the judges’ perspectives on the breakability of public policy, it’s important to clarify what the judges mean by public policy. “The definition of what is for the public good or in the public interest, or what may be injurious or detrimental to the public good or the public interest has differed from time to time,” according to the case of Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly. So, the definition of public policy varies from situation to situation and majorly focuses on public good or welfare at large.
- Prenuptial Agreements through the lens of Privacy:
The bench in KS Puttaswamy went into great detail about the extent and ambit of the right to privacy, from various angles and viewpoints. This debate also allows for the incorporation of prenuptial agreements. The bench held that “Privacy requires, at its heart, the protection of intimate intimacies, the sanctity of family life, sexuality, procreation, the home, and sexual orientation.” Individual autonomy is guarded by Privacy, which recognises an individual’s right to regulate important aspects of his or her existence. Privacy is defined by personal decisions that govern one’s way of life.” A further elaboration of these personal choices can be found in paragraph 157, where the Court stated that “the sanctity of marriage, the liberty of procreation, and the choice of family life” are all matters affecting an individual. It should be obvious by now that the content and purpose of a prenup falls firmly into the scope of the above-stated three phrases. As a result, the “no child clause” and “future separation” provisions of a prenuptial arrangement pass this legality test because they are “personal choices” made by an individual. This judgement clearly provides space and a new perspective to look at prenups.
Moreover, the prenuptial agreements have more advantages over disadvantages, such as speedy settlement between the parties without the matter going on and on for years, agreed upon amount (alimony or maintenance) to paid up upon dissolution of the marriage and various such benefits to look at.
Conflict of laws
The Divorce Act, 1869 under Section 40 speaks about ante-nuptial and postnuptial agreements but it is subject to the decree of the court. The court may make such orders with reference to the application of the whole or a portion of the property settled, whether for the benefit of the husband or the wife or the children (if any).
Therefore, even where the court has held that Hindu marriage is not only a sacrament but also a civil contract (Bhagwati Charan Singh v. Parmeshwari Nandar Singh), the Supreme Court has emphasized that the object of a contract cannot be marriage.
Prenuptials are treated as unenforceable agreements since either party may be required to sign away the right to legal remedy in the division of the marital estate after the dissolution of marriage. Under Section 28 of the Contract Act, any contract “by which any party thereto is restricted absolutely from enforcing his/her rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals” is void.
True, marriage is a significant part of Indian culture, and there is a concern that prenuptial arrangements might taint the tight knit fabric of Indian families. However, the researcher urges to reconsider the current position of the Prenuptial agreements in the country. The researcher believes that giving partners the autonomy to operate on a consolidated outline, simply stating what they want from each other and the marriage, will help not only to ensure that both spouses are on an equal footing in the relationship, but also to protect both spouses, especially the female partner in relevant cases, from injustices that are common within marriages in India.
Although the contractual nature of prenuptial agreements allows them to be seen through the prism of the Indian Contract Act, 1872 to some degree, it is disappointing that the current coverage of Indian personal law on such agreements is inadequate. It’s arguable that such a mindset against prenuptial agreements isn’t ideal. Henceforth, critical analysis on how prenuptial arrangements should be governed is required, and that such rules, once established, should be integrated into the Indian legal system rather than attempting to deal with such agreements in the current judicial piecemeal manner.
By –PRAGATI GILDA
 Akansha Ghose & Pallavi Agarwal, “Prenuptial Agreement: A Necessity of Modern Era”, International Journal of Research and Analysis, (2014), http://www.ijra.in/uploads/41952.2512314468FULL%20PAPER_Akansha%20Ghose%20&%20Pallavi%20Agarwa l.pdf
 See Mela Garber, “Why You May Need a Prenup”, (2019) https://www.anchin.com/uploads/1413/doc/APC-News_042016_Prenup.pdf
 “Are prenuptial agreements valid and enforceable in India?” The Economic Times, https://economictimes.indiatimes.com/analysis/are-prenuptial-agreements-valid-and-enforceable-inindia/articleshow/44782040.cms
 Supra note 1.
 (1901) ILR 28 Cal 751.
 Khatun Bibi v. Rajjab, AIR 1926 All 615.
 (1986) IILJ 171 SC
 Justice K. S. Puttaswamy (Retd.) v. Union of India, WRIT PETITION (CIVIL) NO. 494 OF 2012.
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