IS PRENUPTIAL AGREEMENT ENFORCEABLE IN INDIAN COURTS?

At present, couples who are going to marry each other are not just planning their weddings and discussing venues and outfits, but are also thinking about their future in the most practical and secure ways possible. As the rate of divorce is increasing in India day by day, the concept of a prenuptial agreement is slowly gaining recognition along with it. It is still a new topic for many, or considered taboo by families, but newlywed couples who are financially independent from each other often wonder about prenuptial agreements before their wedding. They question whether such agreements protect them if their marriage doesn’t work out. This article will help you understand the meaning of a prenuptial agreement, the effect of Indian culture on its validity, and the courts’ stand on it.

What is a Prenuptial Agreement?

A prenuptial agreement, commonly known as a prenup, is a legal document that a couple signs before getting married to each other. It usually outlines the division of assets, liabilities, and responsibilities in the event of a marital breakdown. These subjects include:

•  Property and assets

•  Liabilities and responsibilities

•  Other matters related to finances

LEGAL FRAMEWORK:

Are Prenuptial Agreements legal in India?

Until now, there is no clear law that provides for the validity or enforceability of prenuptial agreements. As per Indian culture, marriages are considered a sacrament and not a contract.

· Personal Laws: Marriages are usually governed by personal laws such as the Hindu Marriage Act, 1955, or Muslim Personal Law, which traditionally do not recognize any agreement that promotes separation or contravenes personal laws. This is the reason why prenups do not fit into the Indian legal system.

· Contract Law: There is also a law about contracts, namely the Indian Contract Act, 1872. However, Section 23 of the Act specifically states that if the object of an agreement is opposed to public policy, then it will be considered as not having a lawful object. Hence, an agreement without a lawful object cannot be a legal contract.

Prenuptial Agreements are considered opposed to public policy -

Such agreements are widely recognized in Western countries, but the situation is not the same in India. The Contract Act prohibits contracts that allow parties to sign away rights that are ensured to them through law and are often considered opposed to public policy.

COURT’S PERSPECTIVE:

Initially, courts do not recognize and enforce prenuptial agreements. If a couple is getting divorced, then the court usually follows the personal laws related to marriage and divorce only. In India, marriage is considered a sacred bond; it is often seen that the court discourages anything that supports the separation or dissolution of marriage.

· In the case of Krishna Aiyar v. Balammal (1911) ILR 34 Mad 398, the husband and wife had made an agreement that stated if the wife ever refused to live with the husband and wanted to live separately in the future, the husband would pay her Rs. 350. The court held that the agreement is invalid because it is against Hindu law as well as public policy and said that it also takes away the right of a party to live together.

· Similarly, the Calcutta High Court held that a prenuptial agreement was against public policy and could not be enforced in a case.

Cases where courts supported Prenuptial agreements:

•  Commissioner of Income Tax v. Mansukh Rai More (1988) 174 ITR 703 (Cal), (1988) 75 CTR 101 (Cal): In this case, the Calcutta High Court accepted the enforceability of the prenuptial agreement. The court held that the transfer of property as per the provision of the agreement is valid. and said that the agreement is genuine.

• Pran Mohan Das v. Hari Mohan Das AIR 1924 AIR 1925 Cal 856, 85 Ind. Cas. 799: In this case, the court again supported a prenuptial agreement where a father had promised his daughter to give her a house if she got married. The court held its validity and said it is not against public policy.

EXCEPTION OF ENFORCEABILITY OF PRENUPTIAL AGREEMENT: GOA

Goa is one of the states in India, and it is the only state where such agreements, that is, prenuptial agreements, are legal and enforceable. That state, Goa, follows the Portuguese Civil Code, based on which couples can enter into an agreement about the division of property and finances prior to their marriage.

WHAT SHOULD A PRENUPTIAL AGREEMENT INCLUDE IN INDIA?

Below are some tips or points that might make the prenuptial agreement acceptable in court. But remember that the court may decide not to enforce the same:

• Both parties to the agreement should give their free consent while entering into it.

•  The parties should be major and of sound mind at the time of entering into the agreement.

•  The agreement should be fair and not biased towards a party.

•  Every provision related to the division of assets, debt responsibility, maintenance, and disclosure of property should be stated clearly.

REASONS PRENUPTIAL AGREEMENTS ARE NOT VALID IN INDIA:

•  No statutory provisions: There is no clear or specific law or provision for prenuptial agreements in our country.

•  Public Policy: Marriage is seen as a sacrament or sacred bond in our society. It will not be enforceable if it conflicts with personal laws.

•  Statutory Rights take Precedence: Rights provided through laws such as the right to maintenance under Section 144 of BNSS or Section 125 of CrPC cannot be waived by any agreement, whether it is a prenuptial agreement.

In Conclusion, Prenuptial agreements are not enforceable in India except in Goa. Even if you want to sign a prenup, it should be based on transparency, fairness, and unbiasedness etc.