As a society grows and its citizens become more educated and independent, the stereotypes and taboos prevalent before start to break more rapidly. Marriage is one of the most fundamental institutions of a society and leads to the formation of the basic unit of a nation – family. In Indian society, marriage is a union between two people as well as their families. Needless to say, breaking up a marriage is a big taboo, let alone anticipating it. But as the divorce cases are on the rise, the necessity of safeguarding one’s interests before-hand cannot be denied.

Divorce cases and court fights can get very ugly, expensive, time-intensive, and mentally draining. Misuse of section legal remedies by women has also become rampant. Signing a Pre-nuptial agreement beforehand can address many of these issues and save both parties from unnecessary mental and financial hardships. A pre-nuptial agreement is a great tool to put an end to malicious criminal prosecution against innocent husbands as well. Let us see what a pre-nuptial agreement is and its validity in India.

What is a Pre-nuptial Agreement?

A pre-nuptial agreement refers to an agreement that is entered into by a couple before their marriage takes place, hence the name "pre-nuptial".

A pre-nuptial agreement consists of terms, conditions, and tentative means of resolutions to be acted upon in event of a divorce, judicial separation or break-down of the marriage between the couple.

A pre-nuptial agreement also provides the court with a clear understanding of the parties’ demands and wishes. Since pre-nuptial agreements vary from couple to couple, their content is not fixed. Ideally, in order to ease out the process of divorce and settlement later-on, a pre-nuptial the agreement contains terms and conditions regarding the following aspects:

1. Gifts exchanged between the parties at the time of marriage.

2. Financial details of the bride and groom, such as previous debts and credit history, assets, savings, joint property, insurance, etc.

3. Agreed alimony between the parties (this is gender neutral)

4. Maintenance rights of the wife in event of break-down of the marriage.

5. Exclusive rights of the wife or husband over and above their previous spouses as well as children from previous marriages (this is subject to previous pre-nuptial agreements signed by the individuals)

6. Custody rights and maintenance rights of the child.

Is a Pre-nuptial Agreement valid in India?

A Pre-nuptial agreement in India is usually considered invalid. In Hindu marriages, it is usually held invalid because the Hindu matrimonial law considers marriage a sacred alliance. However, with respect to Muslim and Christian marriages, a pre-nuptial agreement has a higher chance of being considered valid as matrimonial alliances are treated as a contract between the parties. Pre-nuptial agreements are valid under section 40 of the Divorce Act, 1869 which 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". They are valid in Goa where they are allowed towards family property distributions. Under Muslim Law, a 'nikah-nama' works similar to a pre-nuptial agreement. A pre-nuptial agreement will be valid if the marriage was solemnized under the Special Marriage Act and the Pre-nuptial was registered along with all other legal documents pertaining to marriage at the time of marriage.

Pre-nuptial agreements are enforceable only under the Indian Contract Act, 1872, subject to statutory conditions such as:

1. The agreement was entered into with the free and mutual consent of both parties.

2. Both the parties are competent, that is, of sound mind and above the age of 18 years.

3. The agreement has a lawful consideration and lawful object, that is, nothing in the contract should be unlawful, illegal, or against public policy (public policy, in this case, being encouraging the breakdown of a marriage or turning a sacred alliance into a time-bound contract).

4. The agreement should not contain anything which goes against other laws in force, especially matrimonial and property laws.

What are the advantages of a Pre-Nuptial Agreement?

A pre-nuptial agreement has various advantages, but the prime advantage is the prevention of harassment from either party or securing one's financial interests in the future. A pre-nuptial agreement also serves as an authentic piece of evidence to document the exchange of gifts at the time of marriage. This is especially crucial for Indian society where dowry is still prevalent.

Further, pre-nuptial agreements save time and hard-earned money of either spouse. Pre-nuptial agreements also help save division and fragmentation of family business and properties.

A pre-nuptial agreement is a blue-print and helps reduce the uncertainty of divorce settlements. It aids the equitable division of properties and assets between the couple.

Alimony in Indian courts is usually an exercise in discretion. Husbands usually write-off their inherited property or parents of the husband debar their son from family property to protect property against matrimonial claims. This can be prevented via pre-nuptial agreements. Pre-nuptial agreements provide the court clues as to the intention and financial background of the parties. This is very useful for deciding the maintenance amount of children as well as the spouse.

As the number of false dowry demand cases is on the rise, pre-nuptial the agreement is an efficient tool to protect husbands against such harassment. Indian laws are majorly tilted towards women, thus, pre-nuptial agreements can help override this legal indifference.


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