Advocate Kapil Sharma and Yogita Sharma
“A relationship cannot be ordered for, like food at a restaurant. A pre-nuptial agreement is precisely like that menu card, a deal you are willing to pay for.” Dr. Kamal Khurana.
Introduction
A very small but selected group of urban people in India would prefer to be smart and sure before they prepare to tie the knot, by signing a “pre-nuptial agreement.” A trend of pre-nuptial agreement is on the rise among affluent urban couples. It is a trend that has been borrowed from the West where couples divide their finances, well before they go ahead with wedlock. Whether legal or not, the trend seems to be catching on. In India, Prenuptia Agreements are governed by Contract Laws and not Marriage Laws. With divorce being the order of the day and family system breaking up, it necessary that couples signs an agreement before marriage. Pre-nuptial agreement, ante-nuptial agreement, or premarital agreement, is a contract entered into prior to marriage, civil union or any other agreement prior to the main agreement by the people intending to marry each other. The content of a prenuptial agreement can vary widely, but commonly includes provisions for division of property and spousal support in the event of divorce or breakup of marriage. Although a Court of Law can ultimately settle these issues, many couples want to get it done even before the bonding happens – not out of any compulsion but because it makes them feel secure and totally in control. In recent years, the stigma surrounding prenuptial agreement has started to dissipate as more and more career-minded couples are opting to have them-in other words, prenuptial agreements are not just for the rich and famous anymore.It is estimated that almost twenty per cent of marriages that take place in the metros, especially in Mumbai and Delhi, involve some form of prenuptial agreement. Couples opting for prenuptial agreements are not just financially unequal couples or wealthy couples, but even those who simply want to avoid the financial entanglement and trauma that follows a divorce. The problem, however, is that Indian Courts have not totally recognised the validity of prenuptial agreements. The Indian law defines what marriage is and agreements such as these do not fall into that definition. So they are not deemed valid. Under Section 10 of the Indian Contracts Act, prenuptial agreements have as much sanctity as any other contract, oral or written. Courts do take cognisance of a prenuptial agreement if both parties have mutually agreed, are competent to contract, and the prenuptial agreement clearly states the fair division of property, personal possessions and financial assets of the parties. India has no law on prenuptial or post nuptial agreements.
A big advantage of a prenuptial agreement is that it forces couples to have that all-important financial discussion before marriage. It is perhaps wiser to go in for a prenuptial agreement that clearly outlines a fair division of property. It works as a multi-pronged solution.
While the debate about its legal validity continues, it is better to look at the emotional feasibility of a prenuptial agreement, which is often seen as a mark of mistrust or lack of commitment among couples even before marriage. One can’t change the society overnight but prenuptial agreements are certainly getting popular in India, especially in the metro cities.
The pre-nuptial agreement is neither legal nor valid in India. This is because Indian laws do not look at marriage as a contract. It is a religious bond between the husband and the wife. When two people marry in India no one foresees a divorce. Any agreement which is contrary or opposed to public policy is not an acceptable agreement. This simply means that a pre-nuptial agreement is still considered like a threat to the marriage or even the couple anticipating a break in their marriage.
In conclusion it is perhaps wiser to go in for a prenuptial agreement that clearly states on a fair division of property, personal possessions and financial assets than fight over one’s favourite piece of furniture and crystal ware, later in the marriage. One way to empower all Indian women is to make Pre-Nuptial Contracts legal, even mandatory. Therefore, prenuptial are not about divorce they are about ensuring that the marriage vows are not completely disregarded or forgotten. Violence, alcohol addiction, infidelity are all condemned, but as of now you can only condemn. Prenuptial agreements can be deterrents in such situations, if not then at least the Contract can ensure some relief for the suffering party. People should be allowed to make their own marriage contracts according to their conscience, religion and common sense. This would have far reaching conscience not only with regard to management of finances in the case of divorce cases but also with regard to regulation of matrimonial affairs till the marriage persists. Expressing concern over the rising incidence of fraudulent marriages of Indian girls with Non-Resident Indian (NRI) men, a Parliamentary Standing Committee has recommended that the government enact a comprehensive legislation or suitably amend existing laws for the protection of women against malicious NRI marriages.