A marriage is a match made in heaven, it is said. This can’t be more apparent when seen through the lens of an ‘Indian Wedding’ photographer who captures the years old tradition that goes into the making of such a marriage. The immense love that the couple share, the big fat ceremony which caters to more than a thousand people, the glitz, the glamor- it all seems fairy tale like at that time. But ask a divorce lawyer and they will tell you that a marriage is far from a match made in heaven. This becomes apparent when spouses resort to name calling, exchanging heated and disgusting arguments and file false criminal as well as civil cases on each other during divorce proceedings – which is on the rise in the India of the 21st century.
While divorce has its cons, it has become something crucial to those spouses who bear cruelty, both mental and physical, and other form of matrimonial offences of their so called ‘better half’. In modern times such as ours, to expect these victims to keep on bearing such offences so as to keep the so called ‘sanctity’ of marriage, would be a patent miscarriage of justice. Therefore, a prenuptial or pre-marriage agreement becomes more and more vital in order to provide justice during such situations.
A prenuptial or pre-marriage agreement is a contract signed by the to be married couple and witnessed by friends and family. Being a contract, the prenuptial agreement, popularly known as the prenup, is governed by the Indian Contract Act, 1872. It lays down the liabilities, distribution of assets and custody of children, if any, of the parties in the event of a dissolution of marriage through divorce. Such a contract would normally include a clause relating to separate property, shared property, amount of alimony, maintenance issues, custody of children, so and so forth.
The separate property clause may give a separate and distinct right to each spouse, for the enjoyment of their own property as opposed to those that are bought by the spouses together. This may include stridhan, the property given by the bride to the groom or by the groom to the bride.
The shared property clause normally lays down in what proportions and in what manner the properties, bought together by the spouses, would be distributed amongst them. As it is difficult to physically divide an immovable property and would, at times, be better off without such a division, one of the spouses may be given a monetary share of the joint property.
The alimony clause generally contains how much monetary amount, if any, is to be given by the husband to the wife (it may be vice versa but such cases are next to none) depending on his income. It may be a ratio of the income at the time of divorce, to be given monthly (permanent alimony) or a lump sum amount.
The custody clause, most of the time, lays down the manner in which the now ex-spouses will have custody of their children. It may be permanent or joint.
Permanent, where one of the parents get custody for life and Joint, wherein, both the parents have custody from time to time.
A prenup, however, is not considered as legally valid under Indian marriage laws. Such a contract is not binding in a court of law which means that the parties to contract are not bound by the agreements. This is primarily because a marriage in India is not considered a contract but a sacrosanct and sacred institution purely based on religion, even if it is a registered one. Therefore, a contract cannot determine the right and liabilities of spouses to an Indian marriage and especially a Hindu Marriage which is necessarily performed in accordance with the Hindu Marriage Act, 1955. There may be some relaxations when it comes to Muslim and Christian marriages which are considered as arising from contract but the application of prenups would depend on personal laws of these faiths. Also, such a contract cannot take away or abridge the rights of the parties guaranteed by other statutes in force at the time of dissolution. .For example, the parties may agree that the wife will not be entitled to any sort of maintenance or alimony but such an agreement will be void ab initio as she is entitled to such a right which arises from the CrPC as well as the Hindu Marriage Act, 1955 and the Muslim Women ( Protection of Rights on divorce) Act, 1986
However, this does not mean that a prenup is illegal per se. It is has the same legal sanction as any other contract under the Indian Contract Act, 1976. Such a contract helps the court in deciding matters in a divorce case more amicably. The courts may use the clauses relating to distribution of assets and accordingly divide the assets. A prenup essential decreases the burden on the court while adjudicating on issues regarding custody ( however, the court will give utmost importance to the welfare of the child and then decide the matter) as well as separate and shared property rights.
Maneka Gandhi, Union Minister for Women and Child Development, had proposed to make prenups a valid contract with respect to Indian marriages way back in 2015 but development in this area has been lagging since then. Divorce advocates say that the main reason for lack of legislation regarding prenups is because of the fact that it is primarily an elitist concept; only well educated people from the high mid income group and NRIs go for prenups. The bulk of the society has no knowledge of the existence of such an agreement, mostly because many would regard it irrelevant considering how deeply embedded in traditions marriages are. Illiteracy is also another reason; well educated spouses may take advantage of their Illiterate ‘better half’ through a prenup.
But in the end, however disadvantageous a prenup maybe, its benefits clearly outweigh them. Its requirement is becoming crucial in this ever changing world with increasing globalization and very less family time.
Prenuptial Agreement Draft – click here