Updated: Feb 20, 2022
Written by: Surya Sriram
“…you can get rid of at least fifty percent of the problems…and the way is to act preemptively”.
- Amish Aggarwala
(Central Government Counsel at Supreme court of India)
A lot of marriages are at the brink of break up, amidst the pandemic. There is also a surge in the cases related to divorce apart from domestic violence in this situation. Adjustment and compromise work as foundations of Indian marriage, hence divorce is considered taboo. Also, the cumbersome process and long period of litigation make it undesirable. But the statistics revealed raise concern because there is a number of other cases which did not come to the picture due to the aforementioned reasons.
All the aspects above and related aspects are governed by personal laws. India is a place to various cultural, religious, and social groups which profess different faiths and beliefs, and each has its approach to matrimonial relationships. Hence, to cater to it matrimonial laws of India are diverse.  This makes it one of the most complex areas of law, which makes it a cumbersome process to seek remedy. This is where pre-nuptial agreements come into the picture. These are sometimes referred to as pre-marital agreements, where the couple prior to their marriage enters into an agreement involving various terms and conditions for the distribution of assets, property, and other issues, in the event of failure of marriage or divorce. This is a more western concept, not so popular among Indians. The reason lies in the customs and traditions where marriage is considered as a sacred relation relationship. There is no particular law governing prenuptial agreements and the Indian position on it is uniquely ambiguous. In spite of all these ambiguities, it has the potential to increase the efficiency of justice delivery in matrimonial issues.
Positive functionality of prenup
Modernization, education, and financial empowerment of women and other factors coupled with changing notions of marriage, leading to dilution of the taboo and stigma encompassing divorce. Also, divorces have the potential to entangle the couples in courtrooms, fighting cases over prolonged periods over various issues, which is tiresome both emotionally and financially. Here, prenuptial agreements can be of assistance to avoid hustle for such unfortunate eventualities. These agreements can prevent spouses from facing embarrassing situations in court proceedings and simplify the separation process by ensuring spousal support on adhering to the pre-decided conditions. They can even guarantee custodial issues, remarriage rights and protect both the parties from each other liabilities.Also, the Delhi high court, in one of its judgments held “It is the duty of the Court to ascertain the true income of the parties and then pass the appropriate order relating to maintenance”. Having some disclosure clauses in the agreement can even reduce the burden of the courts in ascertaining the true income of the parties. All of this is possible if they are enforceable in courts of law.
Legal Standing of the agreement
As mentioned above, in the absence of specific law, the legality of a prenup is ambiguous. On one hand, there are Muslim and Christian communities where marriage is a civil contract and nikahnama, a prenup which is an essential feature of Muslim marriage and S.40 of Divorce Act governing dissolution of Christian marriages provides legal status to such agreements. On the other hand, such agreements in relation to other religious communities depend on judicial
interpretations. If we consider the Hindu community, where marriage is not a contract, prenups are not valid as per Hindu Marriage Act for this reason. However, it is governed by Contract Act in the absence of specific provisions in personal laws. According to the S.10 of Contracts Act “All agreements are contracts if they are made by the free consent… and are not hereby expressly declared to be void” and S.23 states that “The consideration or object of an agreement is lawful, unless … the Court regards it as … opposed to public policy”. This is where judicial discretion comes into the picture to decide what is considered as against “public policy”.
A. Some precedents invalidating a Prenup on grounds of “against public policy”
A prenuptial agreement providing that the husband would never take his wife away from her mother’s house and would follow the instructions of the mother-in-law at all times to be void on the ground of public policy.
A prenup requiring the husband to perpetually reside in his wife’s house was held to be against public policy.
A prenup providing for payment of a fixed amount of money to the wife in case of her choosing to leave her husband for whatsoever reason was held to be against public policy.
A prenuptial agreement for future separation is contrary to the public policy and therefore, invalid.
B. Some precedents validating prenup
In Pran Mohan Das v. Hari Mohan Das Calcutta High Court held that the prenuptial agreement was good and valid and the principle of “part-performance of a contract” estopped the plaintiff from the recovery of the property.
In Sunita Devendra Deshprabhu v. Sitadevi Deshprabhu, the prenuptial agreement was among the documents considered while deciding on a dispute regarding the separation of assets. In Sandhya Chatterjee v. Salil Chandril it was observed that with the change of time and advancement of the society, law changes and the wife’s demand for separate maintenance when living independently was justified and not against public policy.
Clauses related to assets.
At the time of marriage, especially in India, couples often pile their separate properties together to form consolidated holding. Joint assets and accounts may also be owned in the course of the marriage. To avoid future issues relating to distribution, possession, or title as to a property, the agreement needs to delineate the property relations related to movable or immoveable, marital property, or separate personal property.
Clauses related to children.
Though prenup cannot set sown rules related to custody of child and visitation rights, this clause will be extremely beneficial for those where one spouse has a child from a previous marriage. Children’s rights to their respective assets could be secured and in the event of the death of that spouse, her children are not deprived of their respective share from her property.
Clauses related to spousal rights and duties.
It can help to ensure that the freedom of choice of either of the spouses is not restrained by the other spouse during the marriage. A clause providing for compensation for proved torture or cruelty by either spouse can safeguard them against domestic violence.
These can be used to govern most of the matters, right from marriage to divorce, and everything during such marriage. Further, they can be used to determine the area they will live in and the nature of the housekeeping duties they will perform. Inclusion of fidelity clause can be considered, where the unfaithful would be required to pay a penalty.
These could specify the particular event which could cause the agreement to come into effect. Also, multiple operative clauses could be used to specify the operation of specific clauses. Operative events could be judicial separation, moving out from marital home, filing of divorce, etc.
Though the position regarding the validity is not demarcated, it could be derived from the precedents that whenever the clauses override the rights and entitlements under personal laws, it has been struck down. Also, the clauses having the potential to encourage future separation are interpreted as against public policy. Though the enforceability was asserted throughout the article these agreements, regardless of their enforceability, increases the transparency between spouses regarding their expectations and can even strengthen the marital bond. In the end, enforceability is dependent on judicial benevolence. But the prenuptial agreements, directly or indirectly, prove to be a preemptive step to avoid the hustle.
Sharmila Ganesan Ram and Sonam Joshi, “Till corona do us part: Divorce queries rise in India” Retrieved from (https://timesofindia.indiatimes.com/home/sunday-times/till-corona-do-us-part-divorce-queries-rise-in-india/articleshow/75225320.cms.)   Kanu Sarda, “Lockdown impact: Divorce, child custody cases spike across country, Mumbai tops chart” The New Indian Express, Jun. 2020. Retrieved from (https://www.newindianexpress.com/nation/2020/jun/08/lockdown-impact-divorce-child-custody-cases-spike-across-country-mumbai-tops-chart-2153644.html) Soumyaseema, “Have Divorces Increased or Decreased in India During COVID-19 Pandemic?” Retrieved from (https://edtimes.in/have-divorces-increased-or-decreased-in-india-during-covid-19-pandemic/)  M.P Jain, Journal of the Indian Law Institute Vol. 4, No. 1 (Jan.-Mar. 1962), pp. 71-98 (28 pages), Retrieved from (https://www.jstor.org/stable/43949675)  Amrita Ghosh & Pratyusha Kar,“ PRE-NUPTIAL AGREEMENTS IN INDIA: AN ANALYSIS OF LAW AND SOCIETY”, 12 NUJS L. Rev. 2 (2019), Retrieved from ( http://nujslawreview.org/wp-content/uploads/2019/12/12-2-Ghosh-and-Kar.pdf)  “Prenuptial Agreements: An overview” available at (https://www.helplinelaw.com/govt-agencies-and-taxation/PRENAI/prenuptial-agreements-in-india-an-overview.html)  Kusum Sharma v. Mahinder Kumar Sharma 2020 SCC OnLine Del 931, which is considered by SC in Rajnesh v. Neha (2021) 2 SCC 324. Amrita Ghosh & Pratyusha Kar,“ PRE-NUPTIAL AGREEMENTS IN INDIA: AN ANALYSIS OF LAW AND SOCIETY”, 12 NUJS L. Rev. 2 (2019), Retrieved from ( http://nujslawreview.org/wp-content/uploads/2019/12/12-2-Ghosh-and-Kar.pdf) Bijaya Das, “Is a Pre-nuptial Agreement Valid in India?”, Retrieved from (https://www.news18.com/news/india/is-a-pre-nuptial-agreement-valid-in-india-1474033.html) Indian Contract Act, 1872 Tekait Man Mohini Jemadi v. Basanta Kumar Singh, (1901) ILR 28 Cal 751. Khatun Bibi v. Rajjab, AIR 1926 All 615. Krishna Aiyar v. Balammal, (1911) ILR 34 Mad 398. Thirumal Naidu v. Rajammal Alias Rajalakshmi, (1967) 2 MLJ 484. AIR 1925 Cal 856. 2016(6) BomCR 567. AIR 1980 Cal 244