PRE-NUPTIAL AGREEMENT IN INDIA
CONCEPT NOTE PRESENTED TO NATIONAL COMMISSION FOR WOMEN, INDIA ON 18TH AUGUST, 2017 BY MR.V.P.SARATHI, ADVOCATE, CHIEF LEGAL ADVISER: VPS LAW FIRM,
INDIA – 641 018 e.mail: vpslawfirm@gmail.com –
Phone 98422 49605
I wish to approach this issue on four angles:
1. Cultural angle
2. Legal angle
3. National and International angle and finally
4. The practical angle.
CULTURAL ASPECTS
Pre-nuptial agreement is available under some of the Hindu marriages in India. It is called “ LAGNAPATHRIKA”. Among Muslims, “NIKAH NAMA” is available. Among Christians, the engagement ceremony is recorded in the Church.
In the strict legal sense, though none of the above can be validly called as “Agreements”, still these documents state the intention of the parties to the marriage. Needless to say that these documents do not cover all aspects of the marital life. Given the cultural mlieu cutting across all religions that a marital relationship is sacred, these documents as they are drafted now, cannot be expected to contain any agreement regarding eventual breakdown of marriage.
For that matter, in the absence of no universal definition for a pre-nuptial agreement, it need not be a document containing only the financial aspects of the parties concerned in the event of the breakdown of marriage.
Until recently, there was no law in India making even the registration of marriage mandatory. Now that law has ensured countless women to claim and establish the relationship as that of wife when the marriage itself is denied.
To counter the defence of “streedhan”, now we have law called The Dowry Prohibition (Maintenance of lists of presence to the bride
1/4
and bridegroom) Rules, 1985. Similarly, to meet the challenges of several women to prove fraud and misrepresentation during marriage and to ensure the realization of their rights, it is imperative that a law making a pre-nuptial agreement between the parties to the marriage mandatory. This will go a long way for India to comply with its obligation under Convention on the Elimination of all forms of Discrimination Against Women (CEDAW). State parties are under obligations to improve the defacto position of women through concrete and effective policies and programmes.
The concept paper submitted by Muslim Women Lawyers for Human Rights (KARAMAH) states as follows:-
Inequality in the family is the most damaging of all forces in women’s lives… sheltered by ideologist and cultures. Religious, customary and state laws allow women to be pressured or forced into marriage. … though under Muslim Law, the consent of the bride is a must to make it valid.
The CEDAW committee regularly calls upon the countries to live up to Beijing Platform for Action and Millennium Development Goals to review National Laws including Customary Laws and practices to revoke any general discrimination.
There is no law in India which prohibits a pre-nuptial agreement. In fact, pre-nuptial agreement is a common law remedy. As far back as in 1980, the Calcutta High Court has held that ante-nuptial agreement is valid (AIR 1980 Cal 244 ). However, Madras High Court Judgment in A.E. Thirumal Naidu vs Rajammal Alias Rajalakshmi on 5 January, 1967 (1967) 2 MLJ 484) made pre-nuptial agreement for separate living of Hindu couples invalid. The judge ruled as follows: ‘ The principle underlying the cases in which it has been held that contracts providing for present separation are valid, is, as I understand it, the preservation of the peace and reputation of families; while on the other hand, an agreement for future separation is bad and opposed to public policy. There is a fundamental difference between a case where an agreement for separate living for a time is entered into during the continuance of
2/4
marriage and an agreement before or at the time of marriage controlling the rights of the parties which the law confers upon them after the marriage and which, if enforced, might make the marriage itself nugatory, or infructuous. Such an agreement would seem to be opposed to public policy. The agreement with which we are concerned is an agreement of that latter character… I am of opinion that the agreement is opposed to public policy.’
Indian Contract Act does not speak specifically about pre-nuptial agreement. But under Section 26 of the Act, agreement in restraint of marriage is void. A related law is Section 34 of the Contract Act which says on when event on which contract is contingent to be deemed impossible, if it is the future conduct of a living person. But under Section 23 of Contract Act a pre-nuptial agreement is not unlawful or against public policy.
GENERAL ASPECTS OF PRE-NUPTIAL AGREEMENT WORLDWIDE
The prenuptial agreement would have binding effect in both Germany and France.
In a landmark ruling in Radmacher Vs Granatino (2010) UKSC 42, the Supreme Court in England has made the pre-nuptial agreements in England as legally binding between spouses. The court redefined the phrase ‘public policy’ and declared that pre-nuptial agreements are not against the public-policy as long as they are mutually and voluntarily entered into by the couple. However, they can still be challenged on the grounds of fairness and legality .
The popular belief in India to think of a pre-nuptial agreement as unromantic and cultural practice is wrong. Such an agreement can only prove that the spouses marry only for love and not for dowry or other material benefits.
A standard format for pre-nuptial agreement should essentially contain the following among other clauses:-
1) the calling name (pet name) and official name of the spouses
3/4
2) the calling name (pet name) and official name of the parents of the spouses
3) educational qualification, employment details, monthly earnings, property, debts details of the spouses and their parents.
4) the health status, medical reports including blood group of the spouses
5) details of insurance policies of the spouses
6) the intention of the spouses on when to have a child
7) declaration regarding the place of stay for the couple after the marriage and who will be living along with them.
8) the amount of maintenance and right to share in the property for the spouse as well as for the children in the event of marriage breaking down.
Such a pre-nuptial agreement will also greatly benefit men against possible misuse of women welfare laws. It will also limit their liabilities when the marriage breaks down. International Instances underlining the importance of the pre-nups are Beatles star Paul Mc Cartney and pop diva Britney Spears.
Therefore, a pre-nuptial agreement cannot be deemed as a sign of mistrust or lack of commitment among couples even before the marriage. It is an effective insurance for the better marital life of both the spouses. However, it should be noted that any law for making pre-nuptial agreement valid and binding in India, should start with a ‘non-obstante clause’ i.e. it is enforceable not withstanding any other law !
4/4
Submit your review | |
