PRE-NUPTIAL AGREEMENTS IN INDIA
Author: Eshita Prasad, a Student of Symbiosis Law School, Noida
Abstract
The institution of marriage forms an integral part of Indian society. It is a social practice that marks the transition of a person into adulthood and enables him/her to continue his/her family lineage by way of reproduction. Given the cultural diversity of the country, it becomes evident that there are various forms of marriage that exist in India. While some forms of marriage like Hindu marriages have to be performed through religious ceremonies, some forms of marriage like Muslim marriages exist in the form of a contract determining the rights and duties of the parties getting married.
While religious ceremonies constitute an essential part of marriage, the creation of a contract between the parties intending to marry can prove to be useful for securing their rights and establishing their duties. In the 21st century, such a provision exists in the form of prenuptial agreements. A prenuptial/premarital agreement, commonly referred to as a “prenup” refers to a legally binding, written contract entered into prior to the marriage or civil union between two parties intending to marry. Typically, a prenuptial agreement consists of the rights and the duties of the parties that they acquire upon their civil union. However, it can also include the distribution of assets, custody of children upon divorce and divorce settlement.
Many countries across the world such as the United States of America and Australia have legislations to regulate prenups. However, India is yet to recognize prenuptial agreement by legislative means.
Content
The concept of prenuptial agreements is a western concept which is yet to be officially recognized in India. As mentioned before, many countries like Australia and Germany have recognized prenuptial agreements. While the oldest record of such agreements date back to ancient Egypt, i.e., over 2,000 years ago, countries such as India, Hong Kong and Ireland are yet to recognize the importance of prenups. Despite the lack of a legislation for the regulation of prenuptial agreements, India having a variety of legislations harbors various legal provisions that are linked to premarital agreements. Some of them are as follows:
Indian Contract Act, 1872: the Indian Contract Act, 1872 regulates the formation and enforcement of contracts in India. As per section 10 of this legislation, all agreements are contracts provided that they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object and are not hereby expressly declared to be void. In spite of this provision, Indian courts have refused to give prenuptial agreements the status of a legally binding contract owing to the provision laid out in Section 23 of the Contract Act which negates the validity of all agreements that are illegal, immoral or opposed to public policy. Because prenuptial agreements are a western concept, they are “opposed to public policy” in India. This makes them invalid in the opinion of the Indian courts.
Special Marriage Act, 1954: the nature of special marriage act is such that it governs the marriage between two people of separate religious backgrounds or two people out of which one is an Indian and the other is a foreigner. In India, if a marriage has been solemnized under the Special Marriages Act, 1954, a prenup agreement is considered legally binding subject to its submission to the registrar with relevant documents.
Indian Divorce Act, 1869: this piece of legislation that regulates divorce amongst the Christian Couples of India is one of the very few legal provisions that gives recognition to prenuptial agreements. Section 40 of this act states that before deciding upon the termination of the marital union of the couple, the district court can examine the existence of a premarital or post marital agreement. The state of Goa which is the only state to implement uniform civil code, permits prenuptial agreements for the distribution of property under family law.
In recent years, India has made significant progress within the context of law and social acceptance. The removal of section 377 of the Indian Penal Code, 1860 banning same sex relations, the banning of triple talaq for the purpose of securing the rights of Muslim women and the introduction of Alternate Dispute Resolution (ADR) are all examples of progressive reforms. However, despite having introduced these changes, India still struggles with the social acceptance of certain practices. To understand why Indian courts consider the philosophy of prenuptial agreements as “opposed to public policy” we must understand why the Indian society is resisting the acceptance of prenups. The reasons for such resistance is as follows:
The Sanctity of Marriage: in a country like India that has been harboring the practice of marriage for nearly 1700 years, the union between two individuals is considered divine. As per the traditional Indian scriptures, the institution of marriage forms the foundation of family, which is why Indian society at large feels that the inclusion of western concepts in our legal system can compromise the sanctity of our age-old practices. This belief system believes in restricting marriage to the private spheres of individuals, thus separating it from the public domain.
The inherent possibility of the misuse of emotions: within the Indian context, pre-marital arrangements are perceived as a weakness which men and women can use to acquire wealth and property. Because prenups empower partners financially, the society believes that they can encourage men and women to take unfair advantage of their partners.
Public Policy: the very fact that marriage is considered a sacrament in India indicates that the Indian society is not ready to accept marriage in terms of a contract. The anticipation of a divorce is goes against the public policy of India because the Indian society believes in encouraging married couples to resolve their personal problems without considering a legal separation. There is an inherent belief within the Indian society that suggests that prenuptial agreements will harbor mistrust among couples thus affecting the longevity of their marriage. In addition to this, it remains a fact that prenuptial agreement can trigger several conflicts amongst couples before marriage, negatively affecting their marital union.
Conclusion
Even though India has been taking progressive steps towards the development of the society, it remains a fact that some western concepts like same sex marriage and prenuptial agreements remain a taboo to this very day. In the case of Sribataha Barik v. Musamat Padma, the husband and wife entered into a contract before marriage as per which the husband was required to live at the wife’s parental home and maintain a marriage there. A few years after their marriage, the husband moved back into his parents’ house expecting his wife to follow his steps. The wife refused to do what was expected of her and instead demanded the husband to adhere to the provisions of the contract that the parties entered into earlier. In this matter, a division bench of the Orissa High Court invalidated the contract entered into by the husband and wife terming it as “opposed to public policy”. The decision of the Orissa High Court in this matter suggests that Indian society is yet to adapt to a few concepts that are widely prevalent in western countries.
While the Indian society seems to be stubborn about the implementation of pre-marital agreements, it would be wrong of us to assume that there is no scope of improvement. In contrast to the decision of the Orissa High Court in Sribatha Barik v. Musamat Padma, the Calcutta High Court in the case of Commissioner of Income Tax v. Mansukhari More accepted the validity of a prenuptial agreement between the couple as per which the husband was required to transfer his property to a specific trust for the benefit of him and his wife’s future children. The court in this case held that the agreement of the transfer of property was valid and that it did not attract section 16 (3) of the Income Tax Act.
On the basis of this study, it can be concluded that even though prenuptial agreements are not an accepted practice within Indian society, there is a scope that it might gain the acceptance of people over time. The beauty of law is that it evolves with the society, what may be unacceptable to the people now, may be acceptable tomorrow.
