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Authors’ Note

Prenuptial agreements are mutually entered into by couples before marriage in an attempt to settle financial matters in advance in the event of divorce.

This blog is an attempt to sensitize our readers about the problems which married Indian couples can face especially men. Prenuptial and postnuptial agreements are not valid in India owing to the legal provision laid down in Section 23 of the Indian Contract Act, 1872. Therefore, this blog focuses on the alternatives for Indian couples which they can exercise in place of prenuptial and postnuptial agreements.

This blog is, furthermore, an attempt to figure out ways to prevent married men from falling prey to frivolous criminal prosecution.

This blog is merely for educational purpose. All the ideas in this blog are open to discussions and rebuttals in the comments’ section.

Table of Contents

Brief Introduction – Prenuptial and Postnuptial Agreements

Why are prenuptial agreements illegal in India?

Why is a prenuptial agreement entered into?

What are the essentials of a prenuptial agreement?

Some major countries where prenuptial agreements are legal

Do we have any alternatives to prenuptial or postnuptial agreements in India and how can it benefit the spouses?

Co-owned businesses and properties of spouses as partners

Assets in marriage

Section 498 A of Indian Penal Code, 1860

Prevention against false cases of for maintenance and alimony

Brief Introduction – Prenuptial and Postnuptial Agreements

A prenuptial agreement or pre-marital agreement or prenup for short is a private agreement entered into by spouses before marriage. Its objective is to settle financial matters in advance in the event of either a divorce or death. It basically states that in the event of death or divorce or separation what will be the monetary liabilities and rights of the respective spouses.

A postnuptial agreement or post-marital agreement is similar to a prenup with the only difference that it is entered into by a couple who is already married or in a civil union.

Why are prenuptial agreements illegal in India?

Indian legal system does not recognize prenups as a contract. Looking at today’s scenario. Also, there are no separate laws governing the prenups.

1. Prenups are considered against public policy. It cannot be valid according to Indian Contract Act, 1872 Section 23 which states:

“The consideration or object of an agreement is lawful, unless – it is forbidden by law; or is of such nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another or; the Court regards it as immoral, or opposed to public policy.

In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.”

2. It is governed by law of contract and not by Hindu Marriage Act or any other statute relating to marriages or personal laws. The provisions of Section 10 of the Indian Contract Act, 1872 would apply to the contract as it would to any other type of contract in order for it to be valid.

In Tekait Mon Mohini Jemadai v. Basanta[1] and Kumar Singh and Krishna Aiyar v. Balammal[2] the respective High Courts has ruled that prenuptial agreements are non-executable and invalid.

In the case of Sunita Devendra Deshprabhu v. Sita Devendra Deshprabhu[3] the court allowed the prenuptial agreement for the division of assets. The courts have considered a prenup agreement while divorce to check upon the intentions of parties at the time of marriage. It helped the court to learn about the conduct of marriage before enforcing the agreements. However, it won’t be correct for us to say that prenups are legally enforceable in India.

Why is a prenuptial agreement entered into?

A Prenuptial agreement can help protect the interest of the parties and save both from any unforeseen circumstances and ugly divorces. One of the most important advantages of prenup is that it forces couples to have a financial discussion before the marriage. Some of the other reasons are listed below for opting for prenup:

1. Hiring expensive advocates during divorce settlements can add to the financial drain of the party. The prenup saves both the parties from expensive litigation.

2. A prenup can save both the parties from carrying on each other’s financial obligations post marriage.

3. The properties owned by the parties can be divided peacefully during divorce proceedings through a prenup. It reduces uncertainty of division of property at the time of separation.

4. The alimony or maintenance is not calculated by the Court but is decided by the parties in the prenup.

5. It reduces the chances of appeals in the court as both have already safeguarded their interest through the agreement.

What are the essentials of a prenuptial agreement?

The countries that have legalized prenuptial agreements have rules and regulations that govern the legality and enforceability of the agreements. The very essentials of the agreements are:

a) A prenuptial agreement must be in writing. Oral prenups are not valid.

b) The agreement should be mutually agreed upon and duly acknowledged by both parties.

c) Consent of the parties should be free of undue influence, fraud, misrepresentation, or cohesion. A prenup signed a day before marriage can be invalidated by the court.

d) Both parties should sign with proper legal representatives, preferably in front of witnesses or notary.

e) The clauses in the agreement should be reasonable. It means that both parties should be benefited equally.

Some major countries where prenuptial agreements are legal:[4]

Australia, Canada, Brazil, China, Finland, France, Greece, Portugal, Spain, South Africa, Sweden, Russia, Taiwan, Thailand, and the United States Virgin Islands have made prenuptial agreements enforceable in their countries.

Do we have any alternatives to prenuptial or postnuptial agreements in India and how can it benefit the spouses?

We don’t exactly have any alternatives to prenups or postnuptial agreements in India. However, what we have tried in this blog is an attempt to protect the interests of spouses in cases of divorce. In India the main issue remains the maintenance, alimony and division of property. This blog might seem male oriented, however, the intention remains to prevent the misuse laws and protect the victims of such abuse of law.

We have tried to discuss some ideas which might help the husbands from falling prey to such abuse of law.

However, before we begin with husbands being prey and false cases of offences relating marriages, we will discuss an idea which can help both the spouses protect their interests.

Co-owned businesses and properties of spouses as partners

Often it is seen that married couples have co-owned properties and business after marriage. The problem arises when the divorce proceedings also have the part where these businesses and the property needs to be divided. In many cases the wife, being the sole owner of the property, automatically receives it in the event of separation. The other times division of the property/business might not be fair to the husband.

Since, we do not have prenups or postnuptial agreements, we can improvise and have co-owned properties and business the division of which won’t be affected by personal laws. It is recommended that when a couple decides to enter into a business together, they should draft the contractual agreement separately as business partners rather than as a married couple. This agreement would mention the shares each partner owns.

In the event of separation, they will be free from their marital responsibility but can continue the business as partners. In case, they do not wish to continue their business after the divorce, this agreement would help in fair distribution of the assets. The best part will be that this agreement would be enforceable by the courts as valid which is governed under the Indian Contract Act, 1872.

Assets in marriage

During marriage, the bride receives a lot of gifts from her parents including jewellery, property, cash, car and household stuff. In other ways this sometimes goes against the husband and in – laws in the cases of dowry. An affidavit mentioning that the bride has brought all these items as a gift and without the no role of in-laws might help the husband from falling into the pray for dowry crimes.

Section 498 A of Indian Penal Code, 1860

Section 498 A of Indian Penal Code, 1860 is a boon for tortured women in a domestic violence case. Section 498A states that:

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine.”

This law protects women from physical and mental abuse by her in-laws. But it cannot be denied that many of these cases filed have been proven wrong and now have become a means to harass the husbands and his relatives. In such frivolous cases, usually, cruelty is termed in the name of dowry. And it is easily proven that in-laws have asked for dowry when the bride has brought a lot of gifts during her marriage. Husbands are sometimes prosecuted for taking dowry along with charges of physical and mental abuse.

In order to protect oneself from the misuse of Section 498A what the spouses can do is that during the time of the wedding, the bride and her parents can sign an affidavit stating the following:

i. all the possessions which she has brought with her into the marriage; and

ii. all the items which have been gifted by the bride and her family to the bridegroom; and

iii. that she and her family acted voluntarily in gifting or bringing in the items without any coercion.

This affidavit can later prevent the wife and her relatives from levelling frivolous charges of demanding dowry against the husband.

Prevention against false cases of for maintenance and alimony

People sometimes voluntarily leave their job/employment/business after marriage. In some marriages, the wife can misuse various penal provisions and level various frivolous charges of violence, mental harassment and other offences related to marriages against the husband in order to settle a feud. In such cases the husbands don’t usually have any evidence to prove the contrary.

In such cases, an affidavit by the wife at the time of quitting her job/employment/business mentioning that the she has left the job/employment/business voluntarily without any coercion by anyone. She must also mention in the affidavit the reasons of her leaving/quitting the job/employment/business. In the event of divorce, the husband can use this affidavit to prove that neither he nor his family members did not force her to leave the job/employment/business and that she wasn’t tortured, harassed, forced, coerced or pressurized in any other manner to quit her job/employment/business. This can be done to make sure that no frivolous charges can be levelled against the husband in a vicious attempt to seek maintenance or alimony from the husband or his family.

Edited by Siddhant Pandey

[1] Tekait Mon Mohini Jemadai v. Basanta (1901) ILR 28 Cal 751.

[2] Kumar Singh and Krishna Aiyar v. Balammal (1911) ILR 34 Mad 398.

[3] Sunita Devendra Deshprabhu v. Sita Devendra Deshprabhu (2016) 6 Bom CR 567.

[4] Jeremy D Morley, Prenups around the world, The Law Office of Jeremy D Morley International Family Law. ( 27 January 2020, 7:00 PM) https://www.international-divorce.com/prenups_around_the_world.htm.

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