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Prenuptial Agreements : A Realistic Option

Marriage is considered as a sacrament in India. The prima facie introduction to a prenuptial agreement is a foreign concept. This concept of the prenuptial agreement is not welcomed in Indian society. A prenuptial agreement is an official document that is signed by two individuals before getting married.

A prenup has many other benefits: it can protect a person from the debt burdens of his / her partner; it can prevent the division of his / her business/state; it can provide spousal support in terms of monthly maintenance or support; it can guarantee remarriage rights and take care of child support and custody issues. What it takes is a free agreement and a truthful declaration of assets and liabilities.

Over the past five years, the concept has gained wide social acceptance but, to date, it is not a legally valid pact as per our country’s laws. Unlike popular belief, a prenup pact is not intended solely for the rich and the famous.

While divorce is now very normal in India, it is still not considered a probability before the marriage, and hence no pre-nuptial arrangement is thought about. As long as the law is involved, there is certainly no mention of a pre-nuptial deal as a form of a by-plan. There might be a few voices thinking about the pre-nuptial arrangement, but India remains far from integrating it into the laws and preparations for laws. While we do have a long way to go before pre-nuptial arrangements are enforced in India, this is a way for partners to secure their properties in the case of a divorce

Validity and enforcement of prenuptial agreements in India?

Under the Marriage laws: In India, society treats marriage as a spiritual bond between two individuals (spouses). The matrimonial laws are governed by the Personal Laws of the individual in a marriage. Under the Indian Marriage laws, a prenuptial agreement is neither legal nor valid as the Indian society does not consider marriage as a contract. Each religion has its own set of rules relating to marriage. There is diversity in the way marriages are dissolved, custodial rights of children, and other issues. At present, there is no law that deals with the legality or enforceability of pre-nuptial agreements in India. However, as there is a Uniform Civil Code in Goa, it recognizes pre-nuptial agreements. One of the primary reasons of the non-validity of prenuptial agreements is that, in India, a marriage is not considered as a Contract or agreement between two parties rather it’s a spiritual concept.

Under the Contract Act,1872: To make a prenuptial agreement enforceable in a court of law, it must be a valid contract under the Indian Contract Act 1872. In case, if both spouse mutually agrees to the provisions mentioned under their prenuptial agreement and is signed with free consent, then the Court can take cognizance of such an agreement. Otherwise, if the consent is caused by any coercion, undue influence, fraud, misrepresentation, or mistake, then it is not considered as free consent. Legal enforcement of the prenuptial agreement prima facie must be free from ambiguity, and the clauses should be fair to both spouses and free from opposition to public policy.

Several Courts have taken, prenuptial agreement as a guiding factor to come closer to the fact of, what was the intention of the couples before entering into the marriage. This does not make a prenuptial agreement as binding. A prenuptial agreement in India is not binding. They might carry a persuasive value for strengthening the case.

In Sunita Devendra Deshprabhu v. Sita Devendra Deshprabu, the Bombay High Court took the prenuptial agreement into consideration for deciding the separation of the asset.

Anjali Sharma, a middle-aged businesswoman, forbade her husband to remarry post-divorce and also claimed custody of all the pets bought during marriage with the help of a document called a prenuptial agreement.

The High Court of Allahabad held in the touchstone case of Bhagwati Saran Singh vs. Parmeshwari Nandar Singh that a marriage, apart from being a holy concept, is also a civilian contract between two parties. This paved a way for acceptance of prenups as legal contracts in India.

Also, the Indian judiciary has declared such agreements as invalid in Tekait Mon Mohini Jemadai v. Basanta Kumar Singh and Krishna Aiyar v. Balammal. Pre-nuptials are not tenable or executable in a court of law. However, they can at best be an indication of the intent of the parties.

While considering the rising divorce rate, a prenuptial agreement is currently regarded as a realistic option. It of the most economical solutions when it comes to litigation costs of divorce, adoption or maintenance. It also establishes a sense of freedom for both the parties regarding inclusion of the terms and conditions which are suitable to them and are agreed-upon mutually. Additionally, it also decreases the chances of misrepresentation or fraud by either party, and hence aims for a more amicable divorce option.




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