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Prenuptial Agreement: In Indian Context

INTRODUCTION
Prenuptial Agreement (also known as premarital agreement) “is a contract between two
individuals entered into prior to their marriage. A typical prenuptial agreement decides the future
of assets like property that both the persons have brought into the marriage, and the assets that
they've acquired together. This agreement includes provisions for division of property,
guardianship rights and spousal support and responsibilities that arise from the marital
relationship of a husband & wife and that otherwise would be regulated in accordance with the
relevant laws.

This concept which is so seemingly new in India is quite old actually. It traces back to more than
2000 years ago, the Ketubah which was the ancient Hebrew marriage contract is one of the first
legal documents giving financial and legal rights to women. In Europe it was in France where the
customary prenuptial derives from the dowry, first recorded in the ninth century.

Originally the prenuptial agreements served to protect wives, assuring them of some property in
the event of divorce or a husband's death but in present scenario prenuptial agreements are
equally important to husbands as they are for wives. Owing to increasing rate of divorces couples
can use the prenuptial agreements as insurance. It is something which they don’t hope to use in
future but also don’t want to be without it.

Importance of Prenuptial Agreements

 A prenuptial agreement can ensure that your partner is marrying you for who you
are, and not for your money.
 Prenuptial agreements ensures speedy maintenance, and expensive advocate fee can
be avoided.
 Prenuptial agreements can help couples, especially women, in the case of illness if
either of the parties wants to divorce.

 Wives. when you are not in love anymore and argue it out. The court might take the prenuptial agreement into consideration for understanding the intention of the couple.  Provision for maintenance after the death of a spouse can be ensured. The main point behind it is to discuss and plan now. prenuptial agreements are not very popular in India but is used to avoid financial disputes at the time of separation. But this does not devaluate the importance of prenuptial agreements overall. A prenuptial agreement may be signed between the two parties at . if any. 1867. They fall into the category of a contract and for it to be legally binding. and these become power issues as much as financial or social issues. Couples today also want to avoid financial entanglement and trauma that follows a divorce as well as the tedious legal procedure which makes them inclined to favorably consider such agreements before marriage.  It protects the future of children in case of separation of parents. while you are most in love and most in tune with each other and not later. generally give up their career to raise children. Although. 1872. There is no particular law. Enforcement of Prenuptial Agreement In India. can feel financially more secure. which talks of legality or enforceability of prenuptial agreements in India. which have helped the court in reaching a proper settlement in cases for divorce. as it follows the Portuguese Civil Code. The real benefit of a prenuptial agreement applies to any relationship: upfront & honest communication. it has to satisfy the conditions of a valid contract under the Indian Contract Act. Prenuptial agreement has persuasive value. Goa is the only Indian state where a prenuptial is legally enforceable.  A prenuptial agreement ensures support from the spouse regarding monthly maintenance or alimony.  A prenuptial agreement can help in avoiding embarrassing situations such as sharing intimate details of marriage and photographs during the court proceedings. Prenuptial agreements in India are not binding.

Balammal. List of Judgements where prenuptial agreements directed court to arrive at proper conclusion  In the case of Sunita Devendra Deshprabhu v. When the lawyer produced the prenuptial agreement to defend his client's decision at the Coimbatore Family Court.3  Several courts have used prenuptial agreements to arrive at proper conclusion and to see the intentions of the couple at the tie of marriage. If a prenuptial has not been signed.the time of marriage.telegraphindia. 2  Jayanth Krishnan had an inter-faith wedding. Judgements where Prenuptial agreements are declare as invalid  In the cases of Tekait Mon Mohini Jemadai v.com/1120404/jsp/opinion/story_15332562. Basanta Kumar Singh4 and Krishna Aiyar v. two years down the line.jsp 3 Ibid.5 The indian judiciary held these agreements as invalid agreements. they signed a prenuptial agreement stipulating that neither would force the other to change his or her religion in the future. it was upheld by the judge. Though. stating the regime of ownership. However. Krishnan's wife started putting pressure on him to change his religion. Krishnan promptly sought a divorce.1  Anjali Sharma. forbade her husband to remarry post- divorce and also claimed custody of all the pets bought during the course of marriage with the help of a document called a pre-nuptial agreement. these agreements are not legally binding in India but these agreement surely have a persuasive value which could strengthen the case. 1 2016 SCC OnLine Bom 9296 : (2016) 6 Bom CR 567 2 https://www. The Bombay High Court took into consideration the prenuptial agreement for deciding the separation of the asset. 4 ILR (1901) 28 Cal 751 5 ILR (1911) 34 Mad 398 . a middle aged business woman. then the marital property is simply divided equally between the husband and wife. Sita Devendra Deshprabu. But before the couple got married.

This has been held in two or three cases but the document is not watertight under Indian Law. But. There have been quite a few attempts in past to make prenuptial agreements as legaly binding. However. Almost in every metropolitan of India the percentage of . If the terms of property division and maintenance are clearly spelt out in a legally valid prenup. Legalization of prenuptial agreements for the security of divorced women could be an important part of Matrimonial laws. There are loopholes in the Indian Legal System. a woman would be able to get financial support without going through the tedious and expensive process of divorce which may act as a drain on her resources and she may not end up with anything. Some people question the need of these types of agreements and consider it against traditional Indian values and policies. If a person breaks a prenuptial agreement signed on a stamped and notarised paper. Implementation of Prenuptial Agreement In India.  Pre-nuptials are not tenable or executable in a court of law. they can at best be an indication of the intent of the parties. prenuptial agreement can only be implemented if section 23 of Indian Contract Act. it is also a fact that marriages don’t work for everyone. it would ensure that women get the assets and support they are entitled to without going through lengthy litigation. And fraud is a ground for divorce under the Marriage Act. it becomes a case of fraud. 1872 is amended which declares any agreement relating to marriage as void. The Ministry of Women and Child Development has drafted National Policy for Women 2016 and proposed a review of all personal laws so as to remedy their inherent gender bias. It cannot be further more proved by the increasing % of divorces in India. Prenuptial agreements are important instrument in protecting the interests of women who are in live-in relationships or marriage. By signing this agreement. but they are not foolproof. This is because divorce cases in India run for several years and in this acrimonious legal battle women can often end up losing their rightful share. The concept of Preneuptial agreement is a practical concept and like every other concept have its own pros and cons but its pros have far more weightage then its cons.

divorced increased by double. It shows that it is a high time for our legislature to take these problems in there consideration and deal with it accordingly .