Validity & Enforceability of Pre-Nuptial Agreements in India:
The first question one may ask is … what is the validity and benefits that one would derive from pre-nuptial agreements?
- It provides full disclosure of financial status & wealth of both spouses; It also prevents the possibility of marital frauds, in cases where a partner refuses or hides their financial background from their spouse.
- It removes ambiguity and pre-determines the quantum of maintenance and/or alimony to the wife and children at the time of separation or dissolution of marriage. The alimony awarded by court reflects the discretion of the judge and can be meagre or excessive. Whereas, on the contrary, a pre-nuptial agreement predetermined distribution of assets safeguarding their future after divorce.
- Since financial and wealth issues are covered in a prenup, married couples are saved from the legal hassles, negotiations between the parties and unnecessary harassment that go into sorting these obstacles out when a marriage breaks down.
- The custody of children are already negotiated in a prenup, this helps to avoid a huge legal battle with regard to the custody of the child and also safeguards the well-being of the child in case there is a breakdown in the foreseeable future.
- One of the most important benefits of a prenup is that it protects both parties from any false accusations or false prosecutions made against them.
What is the Enforceability of Pre-Nuptial Agreements in India?
In India, Prenups are considered by many to be “Women-liberating Documents” as they financially secure the women by pre-negotiating the finance, distribution of assets, etc. The first set of problems arise; due to the fact that India has the most diverse matrimonial laws given the fact that marriages in India are governed by different acts depending on the religion of the individual. Each Statute or Act has its own set of rules, leading to diversity in the way marriages dissolve, distribution of assets, Alimony, Maintenance & Custody of Children. Thus, the complex matrimonial laws make it very difficult to enforce a prenuptial agreement in India.
At present, there are no laws that govern the legality or enforceability of a prenuptial agreement in India, except for the laws in “GOA” which recognises pre-nuptial agreements. The courts are however under the purview that a prenuptial agreement is not enforceable and merely indicate the “Intent” of the parties.
Moreover, the government of India’s opinion on this issue emerged at a stakeholders meeting held in March, 2019 where it was convened by the ministry of women and child development on how other countries have adopted the concept of prenups into their marriage laws. Sadly, no proper conclusion or decision was made by the government as they decided that more time and research was required before making such a huge decision to validate prenuptial agreements in India.
As it stands, Prenups are unenforceable under Section 23 of the Indian Contracts Act as being in contradiction with the personal laws and therefore being opposed to public policy.
CONCLUSION:
It is to be noted that there is a drastic rise in divorce cases in India. Therefore, when prenuptial agreements are given legal validity through the legislation or by the courts of law recognizing them as valid contracts, various benefits as stated earlier can be derived by the couples. Moreover, in many cases where NRI spouses are victims to a falsified marriage and end up being deserted or cheated, a prenuptial agreement can help save their livelihood.
References:
Tekait Mon Mohini Jemadai v. Basanta Kumar Singh
Sunita Devendra Deshprabhu v. Sita Devendra Deshprabu