Pacts Before Promises: Unsettled Legality Of Prenuptial Agreements In India
Indian religion, culture and society have revered matrimony. It often bonds families and communities. Against this context, the concept of a prenuptial agreement, a compact entered into prior to marriage that defines property rights, financial duties, and prospective arrangements in case of separation or divorce appears to many as odd, if even subversive. A concept evolved from the west, prenuptial agreements are designed to protect the individual rights and assets of each spouse and specify how the couple's financial matters will be handled during and after the marriage giving each spouse a pre-defined terms for their relationship. In today's world, prenuptial agreements are becoming more common and relevant due to the increasing number of divorces between individuals with significant assets or property.
The Concept and Law of Prenuptial Agreements
Prenuptial agreements are contracts, hence the Indian Contract Act, 1872 governs their enforcement. Under Section 10 of the Act, all agreements formed by parties competent to contract with free consent and lawful consideration are enforceable. Prenups seem to meet these criteria. Section 23 of the Act nullifies any agreement whose aim or consideration is unlawful, immoral, or against public policy, which is their true test. According to Indian law, agreements that induce divorce, alter marriage duties, or forego statutory benefits like support are against public policy. Thus, the fate of prenups generally relies not on their formal legitimacy as contracts but on their substantive conformity with social policy and legislative rights.
The Bharatiya Nagarik Suraksha Sanhita, 2023, further complicates the scenario. Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) provides for maintenance of wives, children and parents if any person having sufficient means neglects or refuses to maintain them. Courts have repeatedly found that statutory rights under Section 144 cannot be negotiated away. Consequently, any clause in a prenuptial agreement that purports to relinquish or restrict the right to maintenance is unenforceable. Personal laws too leave little place for prenups. Hindu law views marriage as a sacrament, while Christian and Parsi personal laws do not provide for contractual control of marital relationships. Muslim law, which treats marriage as a civil contract, theoretically permits conditions in the nikahnama, but Indian courts have overturned clauses that promote divorce or undercut fundamental marital obligations. Indian law values the protective nature of family obligations over the freedom of contractual contracts.
Judicial Responses to Prenuptial Agreements
The judiciary in India has handled prenuptial agreements with caution, swinging between outright rejection and partial acceptance contingent on the wording of the agreement. Early examples manifest a strict antipathy. In Tekait Mon Mohini Jemadai v. Basanta Kumar Singh (1901)[1], the Calcutta High Court knocked down a prenup that obliged the husband to continuously remain at his wife's parental house. The Court reasoned that such a restriction restricted basic marital rights and duties, rendering the agreement unconstitutional for being against public policy. Similarly, in case of Krishna Aiyar v. Balammal (1911)[2], the courts went on to hold that prenuptial agreements are void ab initio and cannot be executed in the courts of law, reaffirming that marriage could not be subjected to conditions undermining its permanence and stability.
At the same time, courts have occasionally upheld prenups that deal strictly with property problems. However, in the cases of Pran Mohan Das v. Hari Mohan Das[3], the Calcutta High Court noted that the prenuptial agreements were valid and since the object of the agreement was not brokerage of marriage but distribution of property, the agreement was not opposed to public policy. The decision regarded the arrangement as a family settlement rather than a contract modifying marital duties. This sophisticated approach shows that while courts are unlikely to enforce prenups that touch upon personal rights and statutory entitlements, they may maintain agreements that operate within the limited sphere of property distribution.
The Goa Exception
Goa remains the only Indian jurisdiction where prenuptial agreements are officially recognized by law. As an exception, prenuptial agreements are valid and legally binding in state of Goa as envisaged under the Portuguese Civil Code which specifically empowers spouses to enter into such agreements regarding distribution of assets and ownership before entering into the union of marriage. However, there are various safeguards under the same Code for protecting the interests of spouses through the agreements such as no revocation or alteration of the agreement post solemnization of the marriage or right to reserve a part of the husband's estate from being alienated by the wife. The Goan model indicates how prenuptial agreements can coexist alongside family law, provided they are rigorously regulated and founded in statutory authority. This statutory recognition reveals that India's reluctance elsewhere is not a matter of legal impossibility but one of policy and cultural reticence. Goa's example also illustrates that prenups, when codified within a clear legal framework, can operate efficiently without injuring the stability of marriage.
Public Policy Considerations
The resistance to prenups in India is led mostly by governmental policy. Marriage, in the Indian context, is not only a private agreement but a social and religious institution. Courts concern that enabling prenups to limit marital outcomes encourages the thought of divorce even before the marriage begins, so eroding its sacredness. Equally crucial is the concern for protection of vulnerable spouses, particularly women, who are often economically reliant. Family law in India has always endeavored to safeguard such dependents by statutory rights to maintenance and property, which cannot be relinquished by private agreement. There is also the greater societal concern that contractualising marriage reduces it to a business, depriving it of its moral and religious significance.
Yet, the realities of current Indian society compel a reconsideration of these concerns. The concept of what is for the public good or in the public interest or what would be injurious or harmful to the public good or the public interest has varied from time to time. As new concepts take the place of old, transactions which were once considered against public policy are now being upheld by the courts and similarly where there has been a well-recognized head of public policy, the courts have not shirked from extending it to the new transactions and changed circumstances and have at times not even flinched from inventing a new head of public policy.
The Case for Reform
If prenups are to obtain legal recognition in India, reforms must proceed with care but also with vision. Legislative clarity is vital. Amendments to the Special Marriage Act or the introduction of a national family law could add explicit provisions for recognizing premarital agreements, subject to protections. Mandatory disclosure of assets and liabilities, independent legal advice for both parties, and a cooling-off period before execution could assure free consent and prevent exploitation. Statutory minimums for maintenance should remain non-waivable, and courts should retain the right to strike down unreasonable or discriminatory terms. At the same time, property-related arrangements, economic interests, and inheritance protections could be granted binding effect, provided they are entered into voluntarily and equitably.
Judicial guidelines could potentially play an essential role in bridging the current divide. Clear standards recognizing prenups as admissible evidence, interpreting property terms as presumptively legal, and declaring clauses contradictory with statutory safeguards unlawful would provide greater certainty. Legal education and awareness could further mainstream prenups, altering their view from being instruments of mistrust to tools of circumspect preparation.
The legal status of prenuptial agreements in India remains ambiguous. They are not expressly prohibited but are not officially enforceable either, existing instead in a transitional region where courts may accept them as proof of purpose but not binding contracts. Judicial antipathy to terms impairing marital responsibilities contrasts with cautious approval of property-related arrangements.
Additionally, agreements wherein the parties have merely consented to sharing of expenses and maintenance instead of breakdown of marriage, such agreements can lead to an increased transparency and financial independence in the marital union. Even though it is not assured that the parties in a prenuptial agreement can get their rights enforced by the courts, it can aid and assist the parties in expressing their intention towards performing their obligations in the marital union. Moreover, an agreement of such nature is also evidence to prove that the parties intended to enter into a legally binding relation.
Authors are 4th year Law Students at School of Law, IMS Unison University, Dehradun. Views Are Personal.