Prenuptial & Postnuptial Agreements: Time for India to fill the Marital Financial Void

Marriage is a fundamental social institution forming the foundation or bedrock on which all the countries’ societies are firmly established, allowing to shape personal relationships between the individuals. Marriage as a social institution has been existent in time immemorial thus making it evident that its origin can be traced to primitive societies where it served as a mechanism for survival, social organization & reproduction with its roots that are deeply embedded in the customs, traditions & evolutionary history of human civilization.     However in the context of the present times, especially in India, there has been rampant surge in divorce litigation that are being filed in the Indian courts. Against this backdrop, lies the controversial & cacophony of differing opinions on alimony & maintenance which are more likely associated with divorce. In the light of the recent events, about popular Indian cricketer’s divorces, suicides of men because of alleged troubles underwent during divorce related proceedings has opened the floodgates for people to have discourses & express their opinions on the matter. As a result, Supreme Court’s 8-point alimony guidelines [1] issued in the backdrop of the Bengaluru techie Atul Subhash’s suicide amidst the public outrage was lauded by people for court’s timely intervention. But one lacuna which is most important to be considered & yet often overlooked in the Indian legal system is the concept of Prenuptial & Postnuptial Agreements.     Prenuptial Agreement or Antenuptial Agreement or Premarital Agreement (colloquially referred to as prenup) is a type of a contract entered into by a couple before marriage or a civil union that enables them to select and control many of the legal rights they acquire upon marrying, and what happens when their marriage ends by death or divorce. However, in actual practice, it is commonly used for outlining terms and conditions associated with dividing up financial assets if the marriage dissolves. [2] Postnuptial Agreement or Postmarital Agreement (colloquially referred to as postnup) is a contract agreed upon by spouses after marrying that outlines the ownership of financial assets in the event of a divorce. [3]

    In the Indian legal context, the prenuptial or postnuptial agreements are not legally valid implying that it is not regulated by any personal laws & therefore is subjected to the provisions of Indian Contract Act, 1872. However, Section 23 of Indian Contract Act prohibits any contract that can be construed to be against the public policy of the nation. The Supreme Court and High Courts have held the prenuptial agreements to be void as it was held to be against the public policy and also reiterated that marriage is not a contract but a sacred bond. This judicial stance remained steadfast for a long time. However, judicial interpretation by some of the High courts in few cases indicated the contrary where prenuptial agreements may not be against public policy. This ambiguity was clarified by the Supreme Court in the case Tekait Man Mohinin Jemadai v. Basanta Kumar Singh, 1901 declared that the prenuptial agreements shall not have evidential value in court because marriage in India is regarded more as a sacred bond than a contractual agreement between parties. Consequently, acknowledging prenuptial agreements would alter the nature of this bond to that of a civil contract. Despite the fact that the prenuptial agreements lack evidential value, the court can take cognizance of the contract, if the party proves that such contract was entered with full knowledge of the consequences, free consent, no restrictive obligation set on the spouse and the terms of the prenuptial agreement should not place the spouse in a disadvantageous position. [4]

    Although the current legal framework provides a temporary & ambiguous solution, it lacks a clear and definitive stance on the enforcement of prenuptial agreements. This bleak situation remains unaddressed by both the legislative and executive branches of the government, resulting in potential frivolous litigation that can potentially arise from asset division post-divorce. There has not been much development on the Law Commission’s proposals of a “qualifying nuptial agreement” made in 2014. [5] The Indian legislature cannot turn a blind citing the reason for prenuptial agreements being against the public policy as such a stance will only cause unnecessary hardship to the married couples who want to protect their financial interests. As Indian society has evolved with improvement in the social aspects, the time has come for the Indian legal system to recognise and codify the regulation of prenuptial & postnuptial agreements following on the lines of many developed countries like USA, Canada, Sweden etc.

1. https://www.livemint.com/news/india/supreme-courts-big-remark-amid-row-over-bengaluru-techies-suicide-atul-subhash-caution-in-dowry-harassment-cases-11733906810059.html
2. https://www.investopedia.com/terms/p/prenuptialagreement.asp
3. https://www.investopedia.com/terms/p/postnuptial_agreement.asp
4. https://www.ijfmr.com/papers/2023/6/9593.pdf
5. https://www.linkedin.com/pulse/validity-pre-nuptial-agreement-apurva-agarwal/