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PRE-NUPTIAL AGREEMENTS IN INDIA: AN ANALYSIS OF LAW AND SOCIETY

ABSTRACT

Prenuptial agreements are increasingly commonly utilized around the globe as practical mechanisms for defining the rights of spouses throughout the duration of the marital relationship and also in case of its dissolution. However, the Indian government has shown reluctance to provide legal standing to such documents. Particularly unclear is the Indian attitude toward premarital agreements.  In India, nikahnama, a prenuptial agreement, is regarded as a fundamental element of Muslim weddings and the importance of prenuptial agreements in the dissolution of Christian marriage determinations is officially recognized.[1] On the contrary, the execution of prenuptial agreements concerning other individuals is not permitted. The majority of religious groups have relied on legal interpretation. Significantly, in past few years,  regarding talks over prenuptial agreements in India, social viewpoints have dominated. In this study, I want to concentrate on the main relevant parties by evaluating their potential influence and the value of prenuptial agreements for Indian couples, and a description of their many forms.

Keywords: Pre-nuptial agreements, marriage, spouse, divorce.

INTRODUCTION

Prenuptial agreements are rising in favor among young couples who want to preserve their possessions and try to get the best settlement for both of them in the event of a divorce. While growing separation numbers are seen to be a significant cause motivating individuals to enter into prenuptial- agreements, the shifting perspective regarding marital relationships and the development of female independence may also be considered as contributing to the increasing acceptability and usage of prenuptial agreements.[2] In India, the legislation regulating premarital agreements is still in its infancy, making it impossible for Indian couples to adopt this trend. Whereas the advantages of prenuptial agreements are numerous, the validity of prenuptial agreements continues to be an open question without a clear answer due to the inaction of legislators regarding the formulation of relevant laws or policies and the uncertainty of the judicial position on the issue towards the prenuptial agreements. In this article, we will try to deal with the issue of uncertainty surrounding premarital agreements in India and propose some sample terms of prenups that may be possible to be executed despite the variety of personal laws regulating marriage and divorce in the nation. 

RESEARCH METHODOLOGY

This project is based only on secondary sources, such as books, journal papers, and historical analyses, and does not include any primary data. More emphasis has been placed on secondary information.

PERSPECTIVES ON PRENUPTIAL AGREEMENTS CONCERNING THE JUDICIARY

  1. Prenuptial Agreements in Hindu Marriages

Valid Pre-nuptial agreements:

Despite the fact that there is still a collection of Indian case law that opposes the legitimacy of premarital agreements in the framework of Hindu weddings, it is important to note that there are also instances that have tried to give prenuptial agreements validity.

In Commissioner of Income Tax v. Mansukhrai More,[3]  the Calcutta High Court ruled that the change of ownership of property according to a prenuptial agreement for the fulfillment of promises committed was permissible and did not breach Section 16(3) of the Indian Income Tax Act, 1922. 

In Pran Mohan Das v. Hari Mohan Das case,[4] a man decided to marry a lady relying on her dad’s vow to provide her a home. After the wedding, the plaintiff’s father transferred the home via an unrecorded gift. The couple retained ownership of the home for many years before selling it to others. Later, the father of the wife sought to regain the home. In this case, the Calcutta High Court determined that the premarital agreement was lawful and enforceable and that the idea of “part-performance of a contract” precluded the plaintiff from recovering the property. 

Invalid Pre-nuptial agreements

In Tekait Mon Mohini Jemadai v. Basanta Kumar Singh,[5] the father and mother of the son and the son himself personally signed a pre-nuptial contract agreement while he was a juvenile indicating that he would remain in his mother-in-home law’s and follow her commands. However, after around 15 years of living in this manner, the husband left his mother-in-home law due to the emergence of disputes and asked that his wife move in along with me. The Calcutta High Court ruled that since it was intended to permanently restrict the husband’s rights under Hindu law, it might lead to the eventual separation of the marriage. Thus, the Court deemed the invalidity of the premarital agreement.

Pre-nuptial agreements and Restitution of Conjugal Rights (Section 9 of Hindu Marriage Act, 1955)

In Krishna Aiyar v. Balammal,[6] the husband filed a suit for the restitution of conjugal rights. The couple settled to remain with each other shortly upon initiating the lawsuit, with the spouse promising to pay alimony to the woman in the case of a later split. Despite this, the woman ultimately didn’t return to marital life after the arrangement. Therefore, the contract was not prenuptial. However, it is important to note that the Madras High Court dismissed the agreement issue because it violated the Hindu marital commitment. The court also determined that the arrangement violated public policy since it contemplated a future separation.

In Sri Bataha Barik v. Musammat Padma,[7] the petitioner filed a case against the respondent(wife). The respondent said before the court that before the marriage, the father of the respondent negotiated with the petitioner that he should be residing in the bride’s house. Since he consented, they got married. This way they entered into a pre-nuptial agreement. Also, the petitioner was a house-husband. Petitioner got into quarrels with the people in the house and he left and resided separately. The court held that any pre-nuptial agreement which talks about “not being at liberty” is null and void. Hence, the wife cannot force him.

  • Pre-Nuptial Agreements in Muslim Marriages

Although it is known that marriages are a contractual arrangement for Muslims, a review of the trend in cases about the analysis of prenups in Muslim marriages by Indian courts puts forward numerous intriguing discoveries.

Valid Pre-nuptial agreements:

In Muhammad Muin-Ud-Din v. Musammat Jamal Fatima,[8] the Allahabad High Court confirmed the legality of a prenup that required the husband to pay support in addition to dower debts in the event of marital discord.

In Saifuddin Sekh v. Soneka Bibi, the plaintiff-respondent wife divorced her husband because he was unable to fulfill the kabinnama stipulations. According to the prenuptial agreement, the spouse was prohibited from bringing either of his past wives to live with him sans the approval of the plaintiff’s wife, and if he did so, she would have the right to divorce him. In this case, neither the other two wives’ ability to enjoy conjugal life nor the husband’s ability to maintain a connection with the other wives was hindered by the arrangement. It merely said that he needed her permission before inviting any of his previous spouses to live with him.

Insofar as prenuptial agreements, Islamic law, and public policy are concerned, the Mohd. Khan v. Mst. Shahmali, case is different the argument was that the wedding was the result of a prenuptial agreement in which the respondent spouse committed to living as a khana dama in the home of the petitioner’s father and paying a quantity of money as wedding celebration expenses if he left the home. According to the provisions of the agreement, failure to meet this requirement would result in an immediate dissolution. The husband abandoned his family for 4 years and did not satisfy his marital duties. The second appeal court, the High Court of Jammu and Kashmir, was tasked with determining whether the pact was enforceable under Muslim legislation. The High Court noted that the tradition of khana damad in the Kashmir valley was common, with the practice being consensual, where the khana damad routinely experienced multiple facilities and the father-in-law typically ended up spending a large amount of money on the wedding. Thus, reimbursement by the son-in-law in accordance with the provisions of the contract would not violate laws and regulations

Invalid Pre-nuptial agreements:

In Khatun Bibi v. Rajjab,[9] a husband filed a lawsuit against his wife for the restitution of conjugal rights. The wife contended how she had divorced her husband due to non-fulfillment of the prenup, which asserted that the ‘would be’ husband should stay with his wife in his mother-in-law’s house law’s and would not live anywhere else without the approval of his potential maternal figure and that in the event of any difference, the mother-in-law could arrange another marriage of her child with somebody. The Allahabad High Court ruled that restricting the freedom of the spouse was contrary to the public interest. In addition, it was determined that a prenuptial agreement requiring the husband to remain with the mother-in-law for the duration of the marriage was unconstitutional under Mohammedan law.

As per the prenup in Ahmad Kasim Molla v. Khatun Bibi,[10] the future husband guaranteed that if he subjected his wife to severe treatment, she might leave her husband and he’d be obligated to give her a monthly stipend for sustenance and home rent. As a result of the partner’s mistreatment, the wife left him. Subsequently, the spouse sent a talaknama that the wife did not get. The High Court of Calcutta ruled that the talaknama was not required for a separation to enter into force, but the wife must be aware of the split to get maintenance since the iddat period would begin to run from the moment she became aware of it. Since it cannot be shown that the bride was aware of the talaknama before filing the lawsuit, it was determined that she was entitled to temporary support. As no basic sustenance allowance period was mentioned in the kabinnama, which is a prenuptial agreement, divorce was not mentioned, and the stakeholders were regarded as bride and groom, the plaintiff husband had no obligation to pay any maintenance allowance after the dissolution of the marriage, and the defendant wife was only entitled to maintenance expenses during the iddat period. However, Justice Costello noted that the decision included erroneous legal reasoning and underlined that he had rigorously adhered to the legal issues and was not constrained by the ethical components of the case.

SOCIETY AND PRE-NUPTIAL AGREEMENTS

Prenuptial agreements are gaining popularity. Due to ambiguous public policy and the lack of statutory mention of prenuptial agreements, whether such a prenuptial agreement will be upheld in court is uncertain. Despite this, rich couples favor prenuptial agreements. In places like Mumbai and Delhi, about 20% of weddings include prenups. These agreements are supposed to correctly predict topics such as money, individual obligations, and custody of children. Most potential couples realize such papers don’t have formal force, but many believe a prenuptial agreement imposes moral duties. The increased prevalence of prenuptial agreements seems to be keeping the Indian government aware of their significance in regulating marriages. This is seen in the Ministry of Women and Child Development’s recurrent attempts to propose legalizing prenuptial agreements. According to sources, central government departments believe that it’s too early to give prenuptial agreements legal standing, and the viability of such a step needs additional assessment. The state’s attitude regarding prenuptial agreements is still unclear.

SUGGESTIONS

To prevent future disputes over division, ownership, or titles of property carried into marriages by a spouse or gained during marriage, independently or collectively, the couple should establish a prenuptial agreement fully describing the fundamentals of asset interactions between them with respect to joint marital assets and separate private possessions. Proper paperwork should be kept if premarital money is used to form a joint bank account, and the prenuptial agreement should reflect each spouse’s contribution and how they want the joint funds handled later in the marriage. Children and child-related topics might be mentioned in prenuptial agreements. In case one spouse has children from past marriages, a prenuptial agreement might safeguard their rights to his/her assets. If necessary, prenuptial agreements can include clauses that ensure that children from previous marriages do not lose their inheritance rights if their parents die during the marriage or divorce proceedings, and as previously stated, such clauses can legally be deemed testamentary pronouncements for succession purposes. Such provisions and appropriate changes may lay down conditions regarding inheritance for children, however, prenuptial agreements may not be able to specify custody, visitation, or child support guidelines in case of separation. Specifying the marriage relationship dynamics partners want from each other is a good idea. This may assist in guaranteeing that neither spouse’s freedom of choice is hindered by the other. Discussing each spouse’s expectations and negotiated rights and obligations in a marriage may help streamline roles within the marriage. The contractual character of prenuptial agreements and the lack of a legally defined form allow for minute customization of provisions. Couples might utilize prenuptial agreements’ flexibility to include lifestyle provisions that deal with how they will live together and the values and standards each spouse must adhere to.[11]

CONCLUSION

Marriage is crucial in Indian tradition, thus there is a worry that prenuptial agreements would damage Indian families. I recommend rethinking this view on prenuptial agreements given advances in martial law in India and internationally, as noted in this paper. Supplying spouses with the independence to collaborate on a centralized overview, clearly showing what they desire from each other and the wedding can help ensure each of them has a similar ground in the connection and secures both spouses, especially the female spouse in major instances, from being exposed to marital inequities in India.

Name: Surekha Naresh

University: Tamil Nadu National Law University, Tiruchirappalli.

Year of Study: 1st year, BA LLB Hons.

Submitted to: The Amikus Qriae.


[1] http://nujslawreview.org/wp-content/uploads/2019/12/12-2-Ghosh-and-Kar.pdf

[2]Why are prenuptial agreements becoming so popular? WINSTON SOLICITORS LLP, September 17, 2015, available at https://www.winstonsolicitors.co.uk/blog/why-are-prenuptial-agreements-becoming-so-popular.html

[3] Commissioner of Income Tax v. Mansukhrai More, (1988) 174 ITR 703 Cal.

[4] Pran Mohan Das v. Hari Mohan Das, AIR 1925 Cal 856.

[5] Tekait Mon Mohini Jemadai v. Basanta Kumar Singh, (1901) ILR 28 Cal 751

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

[7] Sri Bataha Barik v. Musammat Padma, AIR 1969 Ori 112

[8] Muhammad Muin-Ud-Din v. Musammat Jamal Fatima, 63 Ind Cas 883

[9] Khatun Bibi v. Rajjab, AIR 1926 All 615

[10] Ahmad Kasim Molla v. Khatun Bibi, AIR 1933 Cal 27

[11] Van A. Larson PC, Lifestyle Clauses Becoming More Popular in Prenuptial Agreements, May 31, 2014, available at http://www.vanlarsonlaw.com/kane-county-attorney/2014/05/31/lifestyle-clauses-becoming-popularprenuptial-agreements/

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