PRENUP CONTRACTS- LEGALITY & VIABILITY IN INDIA

PRENUP:
A prenup are a contract between two individuals who are about to get married,
outlining the state of finances and personal liabilities in case the marriage fails. Pre-nup in
India sounds like an alien concept as India is a country that follows its rich culture and the
love and warmth that people share which is against of the concept of prenup itself.

LEGALITY & VIABILITY of PRENUP in INDIA:

In India, since marriage isn't considered a contract, it is very rare that we are supposed
to see or hear a couple getting a prenup. Indian legal system itself also has no law on prenup
under marriage laws. Nevertheless, the global publicity about celebrity prenuptial agreements
is encouraging more affluent people to consider the idea in India.

Unlike western countries where marriage is taken to be a contract between husband

and wife, in India marriage is considered as a religious alliance of a man and a woman for life
and thus a prenuptial agreement is legally not valid under the Hindu Marriage Act, 1955 in
India, however it is governed under the Indian Contract Act, 1872. Under the Muslim Laws
and to an extent in Christian Laws, marriage is considered to be a contract between the
marrying couple, and with that contract comes certain automatic property rights for each
spouse.

However, in case of divorce or separation both the spouses, struggle with the hearings
of their case in court, hurling accusations on each other, pinning the blame on the opposite
party, all so that the person may get to pay less amount of money as alimony and it is here
that the importance of a prenuptial agreement comes into play. However, Islamic marriages
in India are governed by Muslim law. The Muslim Women (Protection of Rights on Divorce)
Act provides for the enforcement of sums due under the contract signed by the parties as their
marriage contract (mahr).
A prenuptial agreement must contain few of the following clauses:
 Disclosure of assets and liabilities
 Financial or monetary position
 Real estate properties
 Shared properties & Division of properties
 Separate properties
 Alimony or maintenance
 Child custody & Maintenance
 Life insurance, Medical insurance, Claims

The advantage of having a prenuptial agreement is that it creates a clear-cut reference on

the liability both partners hold in case of a Divorce or Separation.
1) Protection of rights of children as well as grandchildren from a previous marriage.
2) Protection of assets or interest of either of the spouse who is self-employed or a
practitioner, from another spouse’s control in case of separation or divorce.
3) Protection of one spouse who has no debts or liabilities, from taking up the burden of
liabilities/ debts of his/her spouse.
4) In case of divorce the maintenance or settlement received can be decided in advance, thus
saving the spouses from the trouble of going to the court and fighting a legal battle.