INTRODUCTION
“A meeting of minds with the understanding and acceptance of reciprocal legal rights and duties to particular actions or obligations, which the parties intend to exchange”[1], constitutes the basic meaning of an Agreement. The agreement is the meeting of promise or a mutual assent to do or perform something. It does not always demand consideration but there is always a promise or mutual assent, the agreement with consideration is called a contract.
A Pre-Nuptial agreement is a pre-marital or an agreement that is being signed before the marriage takes place. A pre-nuptial agreement typically lists all of the property each person owns, as well as any debts, and specifies what each person's property rights will be after the marriage.
Pre-nuptial agreements are signed before the marriage solemnizes and is made for the future uncertain event. If a couple at the time of their marriage signs a pre-nuptial agreement they are eligible for equal rights of the properties and the maintenance that is being written and provided as per the agreement at the time of divorce.
Prenuptial relationships are neither legal nor valid and are not lawful or binding in India because the country does not recognize marriage to be a contract. Prenuptial arrangements are not widely accepted since marriage is seen as a sacred relationship between husband and wife. In India, marriage is a divine bond between a man and a woman that cannot be separated. But, in Indian Divorce Act, 1869, a couple is eligible to get separated whenever they want irrespective of their religion under the section 10A of the Indian Divorce Act.[2]
Furthermore, the arrangement should be equitable, specifically specifying the parties' land, personal belongings, and financial interests, and it should be approved by a different counsel for each party. A prenuptial arrangement is recognized by Indian courts if the parties consent to it and sign it freely, without unreasonable coercion, compulsion, or threat.
The advantage of having a pre-nuptial agreement before the marriage happens is that it instigates couples to have a financial discussion over their assets and liabilities. Protecting all sides from each other's debts, avoiding the separation of family properties and lawsuits between separate and equal properties, and coping with the issue of child custody following a divorce are all problems that can be effectively addressed by such an arrangement. So, in essence, the arrangement aids in determining who gets what during a divorce.
To be effective, both parties must be able to participate in the prenuptial agreement and be completely clear regarding their respective assets and liabilities. The arrangement must be in effect before the ceremony can take place. The pre-nuptial agreements are hence preferable for the couples at the time of their divorce but it is not admissible in court.
THE VALIDITY OF PRE-NUPTIAL AGREEMENTS IN INDIA
A prenuptial agreement, also known as a premarital agreement, is a contract made by a couple who plans to marry or is about to marry or stay together in the form of a religious marriage. A prenuptial agreement is a signed, registered, recognized, and notarized contract or document that includes provisions for the distribution or division of assets, liabilities, and property after the couple's separation, as well as spousal support in the case of child custody, maintenance, or divorce settlements.
The agreement also incorporates terms and conditions for asset forfeiture based on adultery, guardianship requirements following a divorce, and so on.
Prenuptial agreements are not considered valid in Indian law. In India marriage is not considered a contract it is a sacred and pious relationship between two humans who get attached to their life. In the Hindu religion, a marriage is considered as a relationship for seven births, according to which a couple is being attached for seven births.
According to the Indian Contract Act of 1872 does not apply to such agreements or contracts embracing marriage or where marriage is a consideration.[3]
INDIAN PERSPECTIVE WITH RESPECT TO PRE-NUPTIAL AGREEMENTS
Indian courts do not consider the pre-nuptial agreements valid concerning Indian marriages. There are several judicial interferences regarding the prenuptial agreements in India, the judiciary intervenes in the matter related to the prenuptial agreements in the marriages.
The Indian legal executive has recognized consistently numerous such advancements in Indian culture through their acknowledgment and convenience in various decisions. Because of judicial interference, the status of women has improved concerning their position in society. More and more women are becoming monetarily independent, with a higher self-awareness of inner strength, and are thus empowered to leave a problematic marriage.
There is a trend in Indian society that a woman is being blamed after the divorce, the female spouses are targeted and are typically blamed for the separation.
IMPACTS OF PRE-NUPTIAL AGREEMENTS
ADVANTAGES OF PRE-NUPTIAL AGREEMENTS
Although pre-nuptial agreements are not considered by the courts in India on the other hand, pre-nuptial agreements have various kinds of advantages that are helpful while the case is being on trial in the court or at the time of divorce. Pre-nuptial agreements help in facilitating the process of seeking maintenance speedily and help to settle the case within time. The agreement helps the parties to be free from each other’s debts and other liabilities.
In case of divorce, the custody of the child can be decided beforehand and protect the rights of the child and protects the child’s future. The prenuptial agreement reduces conflicts between both parties.
DISADVANTAGES OF PRE-NUPTIAL AGREEMENTS
As these agreements aren’t valid in the eye of the law, they have certain disadvantages that come while deciding the agreements.
First of all, as in Indian society, the concept of divorce doesn’t prevail very smoothly. The families don’t discuss the aftermath of the marriages. Therefore, they don’t get bothered about the marriage, even if it doesn’t work out to be good. Therefore, the concept of Pre-nuptial agreement is a complex and difficult step for both parties.
The agreement brings the possibility of the marriage being misunderstood, as the partners may think that the marriage won’t last forever. The agreement can adversely impact the lifestyle of both parties.
PRE-NUPTIAL AGREEMENTS IN HINDU MARRIAGES
According to the Hindu Marriage Act of 1955, a Pre-nuptial Agreement is not permissible since Hindu marriage is spiritual rather than contractual. According to case law, there have been several occasions in which prenuptial agreements drawn into in the context of Hindu law have been brought before Indian courts for adjudication.
There are some invalid prenuptial agreement cases in Hindu marriages. In Tekait Mon Mohini Jemadai v. Basanta Kumar Singh, 1901, the parents of the husband and the husband himself signed a pre-nuptial agreement that he would live in his mother-in-law’s house with his wife, but after 15 years, because of some disputes, the husband left her house and demanded to have his own life. In this case, the court declared the pre-nuptial agreement invalid as it was the right of the husband to have his life or even get separated from his wife afterward.
CONCLUSION
The main conclusion of the pre-nuptial agreement is that they are not valid in the eyes of the court in India. Also, they are not considered to be a contract under the Indian Contract Act, 1872, and hence cannot be admissible under the court of law. Since the introduction of the Marriage Laws (Amendment) Bill more than three years ago, prenuptial agreements have been on the government's agenda. Prenuptial or premarital agreements have been given legal standing as contracts by Maneka Gandhi, the minister for women and child development. Her ministry asked for a meeting with legal experts and certain other stakeholders on November 23, 2018, to consider the prospect of enacting legislation that would legalize these agreements between partners.
AUTHOR: TANISHQ BISEN
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