PRE-NUPTIAL AGREEMENTS AND THEIR VALIDITY IN INDIA

pre-nuptial agreement
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“For to be wise, and in love, was not given to the God themselves”-Aphra Behn, The Confession of the New Married Couple.[1]

The quote above rightly explains the logic behind couples opting for pre-nuptial agreement nowadays and adding a little realism to their romantic life.

Overview

Pre-nuptial or ante-nuptial agreements are the agreements that are made by the prospective spouses before entering into a marital bond. It usually deals with the assets and properties and their position in case of any further subsistence or termination of the marital bond. The concept of pre-nuptials has been in vogue in western countries and affluent Indian society where couples are concerned about their assets and want to negotiate the best deal on it, so as to retain them in the future. The changing values of marriage and the current trend towards delayed marriage, cohabitation, and frequent divorces are some factors leading to its popularity.

Also social and economic independence of women in the society is encouraging them to walk out of bad marriages and leading to a wider acceptability of such agreements. The increasing rate of divorce in recent times is pointing towards the need for such agreements which tend to keep the couples away from cumbersome legal battles regarding the distribution of property, custody of child, further alimony, etc. as they are pre-decided in these agreements.

Position in India

In India, pre-nuptial agreements are not regarded as legal or valid because we do not consider marriage as a contract. There is no specific law governing pre-nuptial agreements in the country. When this topic was brought to notice of the Women and Child Development Ministry and the Law Ministry, they said that the concept is very “urban” and it is “too early” to make any law with regard to this.

Although there was a discussion of giving it validity under the Special Marriage Act 1954, the government has refrained from interfering in this matter as of now. And for this reason, pre-nuptial agreements need to be seen under The Indian Contract Act, 1872. But according to Sec. 23 of the Act, the agreements whose consideration or object is unlawful are void[2]. And in most cases, pre-nuptial agreements are regarded as immoral or opposed to public policy under the same section and hence are considered to be void.

Marriages in India are governed by personal laws which are separate for every religion. So when we look at the validity of pre-nuptial agreements in India we also need to go by different personal laws to check whether they provide any such provision regarding these agreements.

Sec. 40 of The Indian Divorce Act, 1869 says that the High Court or District Court may inquire into the existence of any pre-nuptial agreement between the spouses after granting the decree of divorce[3]. This act is applicable to Christian marriages. In Muslim laws marriage is considered as a civil contract, so pre-nuptial agreements are commonplace there. The ‘Mahr’ amount which is to be given to the wife in case of further separation or death of the husband can be regarded as a well-established pre-nuptial agreement.

This article will particularly deal with the cases and position of pre-nuptial agreements in the Hindu Law.

Judicial Precedents

We have several judicial precedents suggesting how a pre-nuptial agreement can be held invalid under the Indian Contract Act and several others which consider them legally valid.

Agreements that were held invalid:

  • Tekait Mon Mohini Jemadai v/s Basanta Kumar Singh[4] – In this case, the husband and his parents entered into a pre-nuptial agreement stating that he would reside in his in-laws’ home and follow all the instructions given by his mother-in-law. He complied with the agreement for 15 years but later had some differences with his mother-in-law and left that house, he also demanded that his wife should reside with him. The court relied on Sheonarain case [5] and held that the pre-nuptial agreement was invalid and opposed to public policy.
  • Krishna Aiyar v/s Balammal[6]–  The husband filed a petition of restitution of conjugal rights, shortly after which he and his wife compromised to live together and also made an agreement in which the husband said that he would pay alimony to the wife in case of future separation. However, the wife never restored the conjugal rights and thus the agreement was not pre-nuptial. But it is worth noting here that the Madras High Court said that the agreement was not in the spirit of Hindu Law and also it envisaged the possibility of future separation which is against the public policy.

These judgments suggest that any agreement which is against the spirit of the Hindu Law or any agreement which envisages future separation is considered to be void and against public policy.

Agreements that were held valid:

  • Pran Mohan Das v/s Hari Mohan Das [7] – In this case the husband and agreed to marry the woman on the basis that her father would gift them a house. The father gifted them the house but it was an unregistered gift. Both husband and wife lived in that house for several years, thereafter the father-in-law sued them for the recovery of the house. The court held that this pre-nuptial agreement was valid because it was not against the public policy and did not foresee any kind of future separation.
  • In another case Appibai v/s Khimji Cooverji[8] it was held that precedents of Mon mohini case[9] and Aiyar case[10] would not be applicable where the husband has deserted the wife. And it was held that the wife should be given separate maintenance and residence as agreed in the pre-nuptial agreement.

Conclusion

The review of these cases brings us to the fact that though slowly but the perception of the Indian judiciary towards pre-nuptial agreements is changing. As the mindset of society is changing they are more open towards these thoughts and believe in making everything clear. Though the precedents show that the court has granted validity to the pre-nuptial agreements, it is not in its true sense, as in pre-nuptial as a whole was never granted validity anywhere, but either some of its provisions were considered as valid as they were backed by some other law or the agreements were held valid by drawing exceptions from previous precedents regarding this matter.


References

[1]A.MARSH, THE CONFESSION OF THE NEW MARRIED COUPLE, reprinted in THE TEN PLEASURES OF MARRIAGE 225 (John Harvey ed., The Navarre Soc’y 1950).

[2]  The Indian Contract Act, 1872, §23, No. 9, Acts of Parliament, 1872 (India).

[3] The Indian Divorce Act, 1869, §40, No. 4, Acts of Parliament, 1869 (India).

[4] Tekait Mon Mohini Jemadai v. Basanta Kumar Singh, 1901 SCC OnLine Cal 60.

[5] Paigi v. Sheonarain, 1885 SCC OnLine All 24.

[6] Krishna Aiyar v. Balammal, ILR (1911) 34 Mad 398.

[7] Pran Mohan Das v. Hari Mohan Das, (1924-25) 29 CWN 889 (Cal).

[8] Appibai v. Khimji Cooverji, (1936) 38 Bom LR 77.

[9] Supra note 4.

[10] Supra note 6.

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