Legal Validity of Pre- Nuptial Agreements in India

This article was written by Shubhangi Agrawal, a student of Hidayatullah National Law University, Raipur

To start with lets first understand what is an agreement-

Under Sec 2(e) of Indian Contract Act,1872 agreement is stated as “Every promise or set of promises, forming consideration for each other is an agreement”[1].

To see the essentials from the above definition of agreement we have:

1. Promise or set of Promise –

What is Promise?

According to Sec 2 (b), “When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise.”[2]

Set of Promises?

When consideration of a promise is also a promise.

2. Consideration –

According to Sec 2 (d), “When at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or abstain from doing something, such act or abstinence or promise is called consideration for the promise”[3].

 What is Prenuptial Agreement?

“A Prenuptial agreement or Prenup agreements are the written agreements made between two individuals who are about to do marriage.”

But How Important Is Forming A Prenuptial Agreement Is?

Often it is said the marriages are made in the heaven but the end of these is an ugly truth which may leave the individual in the emotional trauma and to safe oneself from adding financial trauma to make condition worse we have prenuptial agreements in place it’s that simple.

To see the status of Prenuptial agreements in India it is neither legal nor void.

As according to Indian laws of marriage on which this whole idea of prenuptial agreement is based is per se not considered as a contract. Marriage is considered as a religious bond between two individuals.

India being a country having rich cultural and religious heritage since the very past, generally for people in India the very concept of prenuptial agreement is an alien one. Hence, it’s a rare case in India that two individuals will draft a prenuptial agreement before marriage. Unlike western countries where the concept of prenuptial agreement is seen as a common practice adopted by the people.

Marriage been not regarded as a contract hence it is not legally binding under Hindu Marriage Act, 1955 hence prenups comes under the ambit of Indian Contract Act, 1872.

But if we take into account other religions such as Muslim (Protection of Rights on Divorce) Act or Christianity, they to some extent consider marriage as a contract so there is automatic disposal of property under personal laws of the same religions, but talking about the divorce or any further issue the same hearing in courts, accusing one and other so one has to pay less all these comes as a hassle and here comes the prenuptial agreement for ease.

Some important clause that a prenup agreement should have are:

• Assets and liabilities,
• Disposing of property,
• Custody of children,
• Joint property or loans,
• Individual properties,
• Maintenance,
• Expense of house (electricity bill, daily needs etc.),
• Financial status of both the partners,
• Remarriage rights
• Other claims or loans.

Having everything written over a piece of paper which is signed (by both the partners), registered and notarised (attested by a notary) can be seen as way of easing things for the future keeping it all clear and transparent.

While the discussion about prenup agreements lawful legitimacy in India proceeds, it is smarter to see how Indian society looks at prenups, which is frequently seen as a characteristic of question or absence of responsibility among couples even before marriage. One can’t change the general public thinking or conceptions rather call it a misconception, yet prenups are positively getting mainstream in India, particularly in the metro urban areas. Around 20-25 percent couples decide on some sort of pre-marriage settlement as it gives them incredible security and causes them to feel sufficiently able to deal with every unexpected condition in future. At the point when two individuals marry in India nobody anticipates a separation. Also, this is the reason nobody even thinks about a pre-marital undertaking. Any understanding which is opposite or restricted to public policy is certainly not an adequate agreement (also stated under the section 23 of Indian contract act, 1872). This essentially implies that a prenuptial agreement is yet thought to as a danger to the marriage in Indian society.

In spite of the fact that separation is very regular in India now, it is as yet not thought about a chance before the marriage and subsequently there is no thought about a prenuptial agreement. There might be a couple of individuals discussing the prenuptial agreement, however India is a long way from remembering prenup agreement as law and enactment plans. Despite the fact that we actually have far to go before prenuptial agreements are actually legalised in India it is a path by which couples can secure their finances and various assets in the event of a separation A prenup resolves and rearranges a great deal of monetary and property issues. Since the division and disposal of assets and liabilities are as of now done before the marriage, executing what has been chosen before the marriage makes life less difficult. It just comes down to disposing the assets and liabilities as commonly chose by the couple and will save dreadful contentions later. And to make it even clear it is kind of important to state that if a couple in foreign makes a prenup agreement there and comes down to India marries here according to Indian traditions the prenup agreement won’t be valid in India. It will have legal validity only in the country it was drafted.

We summarise the views on prenup in below mentioned points:

• Marriage not being considered as a contract in religious or personal laws. Hence prenups as dealt according to Sec 10 of Indian Contract Act,1872 instead of any matrimonial laws.
• Prenups are against the public policy, hence void under Sec 23 of Indian Contract Act,1872.
• Prenups are not considered binding and only have a value equal to the memorandum of understanding.
• Prenups are often treated as a social stigma taken as a sign of mistrust and lack of survival in marriage.
• Prenups are legally binding but are taken into consideration by courts while pronouncing the judgement.

In the case of Jamna Dass v. Sahiboo[4] where a prenuptial agreement was present and clearly stated the assets of the partners it was very easy in disposing the case and neither of the other facts were required to looked upon due to the availability of a prenuptial agreement.

Prenuptial agreements do not have any specified or structured format as of now and can be tailored according to the particular needs of couples, but there are certainly few things that individuals must take into consideration while framing a prenup agreement:

1. Agreement must fulfil all the requirements under section 10 of Indian Contract Act ,1872 to be a valid legal document.
2. Agreement must be duly signed by both the parties forming it.
3. Agreement must mention the assets and liabilities of both the spouses.
4. Agreement must mention the severability clause that if any provision of the agreement is declared to be void all the other provisions will prevail.
5. Agreement should set each spouse right and ownership parts in joint things right before the marriage.

Infidelity Clause

Taking about the important details in a prenup agreement another important clause is an infidelity clause.

I is to remember that spousal cheating or extramarital affair does not invalidates the prenuptial agreement until it is explicitly mentioned in the prenuptial agreement.

An Infidelity clause in a prenuptial agreement states that if one party is proved to have been involved in an extramarital affair, the aggrieved spouse will receive a financial award from the cheating spouse.[5]

Infidelity clause is often looked upon as a sign of mistrust as it demands for financial aids if one partner is found cheating. Though unprecedented, infidelity clause is often demanded by the partner who has seen a causality of the partner to incline towards the other individual or has seen set of experiences of cheating.

But for two individuals who are purely adding it for the sake of legal ease may see it as another term that has been negotiated in the agreement.

 Taking it forward prenups validity in India can also be understood with the major judgement about privacy that is Justice K.S. Puttaswamy (Retd) vs Union of India.[6]

In this case the issue of privacy was discussed at length, the scope and ambit of the right to privacy was dealt in a wider and clearer manner and this made prenups also to be a part of the discussion. The bench declared that “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy.” A further mention about individual concerns was there stating individual concerns includes matters relating to obligation of marriage, choice of family etc. with the clear mention of all these it can clearly be sensed out that prenups fall under this. Hence the provision of future separation or no child policy all are legal provisions in a prenuptial agreement as they all fall in the ambit of “personal choices” of an individual.

Prenuptial agreement has gained some importance in Indian society since last 5 years. People still not opting for a prenuptial agreement can e seen with two perceptions

1. Either they don’t have the proper knowledge about it.

Today in the society many suffer due to lack of knowledge being conveyed to them regarding the presence of certain agreement like prenuptial agreement that make life of an individual more secure and well planned.

2. Or there is not a mutual consent about forming a prenuptial agreement.

Also, the thing to be taken care of is one must be very vocal about forming a prenuptial agreement as the other spouse may not be ready for it or see it in a totally different way maybe as a lack of trust in the relationship. This may come to other person as a very unpleasant surprise and may be the individual is not prepared for the same that may lead to a stressful situation and then forming a prenuptial agreement may turn out to be even harder. One must not postpone it till very before day from the date of marriage. Additionally, if an individual is proposing a prenup it may cool his/her passion for at some point.

A prenuptial agreement can only be successful if both the parties give their free consent and the purpose can ONLY be fulfilled when both the partners give an honest disclosure of their assets and liabilities. Hiding any information relating to the same might defeat the purpose of forming a prenuptial agreement and further creating hazard in disposing and distributing the property and other.

To conclude there nothing negative in making a prenuptial agreement as it only helps in clearing out the things and providing security. Forming a prenup is always wiser than fighting for your favourite property in the later stage of marriage. Prenuptial agreements have become extremely popular in wester world owing to the security and stability they provide. It high time that Indian legislative and judiciary must realise that prenups are in great benefit of the people and are completing in consonance of the public policy. It must be seen that  prenuptrial agreements have nothing that harm the Indians ethics and traditions but it’s “the need of the hour”.

REFERENCES

• https://ijlpp.com/analysing-the-validity-of-prenuptial-agreements-in-india/
• http://www.legalserviceindia.com/article/l284-Pre-nuptial-agreements.html
• https://www.latestlaws.com/articles/what-are-pre-nuptial-agreements-and-are-they-valid-under-indian-marriage-laws/
• https://www.legitquest.com.elibraryhnlu.remotexs.in/case/jamna-dass-v-sahiboo/F727F
• https://indiankanoon.org/doc/127517806/
• indiatimes.com

[1] Indian Contract Act,1872, § 2, No. 9, Acts of Parliament, 1872 (India).

[2] Indian Contract Act,1872, § 2, No. 9, Acts of Parliament, 1872 (India).

[3] Indian Contract Act,1872, § 2, No. 9, Acts of Parliament, 1872 (India).

[4] Jamna Dass v. Sahiboo, (1974) AIR 1975 HP 18 (India)

[5]  Bruce E. Friedman, can a contract save your marriage? Infidelity clauses in prenuptial agreements Paule, Camazine & Blumenthal, (Jan. 9,2021,12:29 pm), https://www.pcblawfirm.com/infidelity-clauses-prenuptial-agreements/

[6] Justice K.S. Puttaswamy (Retd) vs Union of India, (2017) 10 SCC 1(India)