Prenuptial Agreements

Posted On : April 24, 2020
Prenuptial Agreements
A prenuptial agreement is a private agreement between a couple signed before they get married which sets forth the division of their assets in the event of divorce or death. Each state has its own laws regarding the enforcement and validity of prenuptial agreements
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A prenuptial agreement is an official document which is signed by two individuals before getting married. The primary purpose of a prenuptial agreement is to settle financial matters in advance. The agreements are used to separate the personal debts and assets of one individual from his/her future spouse. This type of agreement includes the provisions relating to the division of properties, investments, alimony and any other monetary and possession-based negotiations. The introduction of the prenuptial agreement is a foreign concept. In India, marriage is considered as a sacrament, and hence the concept of the prenuptial agreement is not welcomed in the Indian society. The prenuptial agreement does not have any specified format. The content of the prenuptial agreement differs from agreement to agreement,as it depends upon the spouses. The entire concept of a prenuptial agreement is complicated in India. The main purpose of the prenuptial agreement is to decide the outcome of finances and personal liabilities in the event of a failed marriage.

Are prenuptial agreements valid and enforceable in India· The validity of prenuptial agreements under the Marriage Laws:

The prenuptial agreement provides full disclosure of the financial status of both the individuals who are about to get married in future. It pre-determines the quantum of alimony to the wife and children in case if the marriage fails in the future. The prenuptial agreement also provides a provision that is related to pre-negotiated custodial rights of the children in case if there is dissolution/separation of marriage. Under the Indian Marriage laws, a prenuptial agreement is neither legal nor valid as the Indian society does not consider marriage as a contract. In India, the prenuptial agreements do not find its social acceptance as the society treats the marriage as a spiritual bond between two individuals (spouses).

In India, the matrimonial laws are governed by the Personal Laws of the individual in a marriage. As there is no Uniform Civil Code which governs marriages in India, each religion has its own set of rules relating to marriages. There is diversity in the way marriages are dissolved, custodial rights of children, and other issues. At present, there is no law which deals with legality or enforceability of pre-nuptial agreements in India. However, as there is a Uniform Civil Code in Goa, it recognizes pre-nuptial agreements. The general view relating to the prenuptial agreement is that it merely indicates the intention of two individuals who are about to get married, and such an agreement cannot be legally enforced in India. One of the primary reason of non-validity of prenup agreements is that, in India, a marriage is not considered as a Contract or agreement between two parties rather it’s a spiritual concept. Therefore, prenup agreements are not socially accepted, and under the various marriage laws, they are not legally enforceable or legally valid.

The validity of prenuptial agreements under the Contract Act,1872:

To make a prenuptial agreement enforceable in the court of law, it must be a valid contract under the Indian Contract Act 1872. In case if both the spouse mutually agrees to the provisions mentioned under their prenuptial agreement and is signed with the free consent, then the Court can take cognizance of such an agreement. If the consent is caused by any coercion, undue influence, fraud, misrepresentation and mistake, then it is not considered as free consent. To legally enforce the prenuptial agreement, the agreement must be free from ambiguity, and the clauses should be fair to both the spouses.

It is also essential to understand that for a prenup agreement to be legally valid under the Contract Act 1872 should be free from clauses which oppose to public policy. Despite fulfilling the requirements of a legal contract under Section 10 of the Indian Contract Act(ICA),1872, the Indian Courts have not been providing legal enforcement to the prenuptial agreements on the basis that they are unlawful as they oppose the public policy. According to Section 23 of the Indian Contract Act, any contract which violates the public policy is deemed to be unlawful and invalid. The clauses in the prenuptial agreement which relates to “separation clauses”, and “no child clauses” violates Section 23 of ICA making the contract void. On the other hand, both these clauses previously mentioned are essential and must for a prenuptial agreement. However, the Indian Courts have not defined what exactly is “public policy”, and therefore the stability of such agreements is yet not balanced.

The Ministry of Women and Child Development had convened a meeting in March 2019 with an intention to raise a question on whether the prenuptial agreement should have a legal stand in India. However, there was no precise determination in that meeting.

Case laws

1.     Tekait Mon Mohini Jemadai Vs Basanta Kumar Singh

Calcutta High Court - 20 March 1901

(1901) ILR 28 Cal 751

In this case, there was a prenuptial agreement between Sri Rai Basanta Kumar Singh and Tekait Mon Mohini Jemadai. The provisions of the pre-nuptial agreement state that the husband will never be at liberty to remove his wife from the parental house. The Hindu law imposes a duty upon the wife to reside with her husband wherever he may choose to reside. If there is any agreement which states that the husband will not be at liberty to remove his wife from her parent's house to his own house and if such an agreement is permitted then it will defeat the Hindu Law. The Court held that the object of the agreement is unlawful and therefore, such an agreement is void in the eyes of the law. Hence, the Court refused to uphold the validity of the pre-nuptial agreement.

2.     Krishna Aiyar Vs Balammal

Madras High Court - 6 May 1910

(1911) ILR 34 Mad 398

The agreement was between Krishna Aiyar and Balammal. The agreement was entered by the husband and wife after marriage. The agreement states the provision relating to the separation of the husband and wife. The Courts applied the Hindu law as the parties were Hindus and Brahmans to determine their marital obligations. The main question which arises was whether, under Hindu law, any agreement between husband and wife to live apart from each other is valid. The Court held that the agreement is deemed to have been forbidden by the Hindu Law. Also, it is against public policy, and therefore such an agreement is not enforceable. Hence, the agreement was declared invalid.

3.     Commissioner of Income-Tax V/s Smt. Shanti Meattle

Allahabad High Court - 27 December 1971

1973 90 ITR 385 All

The husband and wife agreed to live apart after their marriage,and an agreement for separation was executed between them on the 16th September 1954. Under the agreement, the wife was given an option to live separately from her husband free from marital control and authority. It also states that the wife and husband shall not molest or interfere with each other or bring a suit for the restitution of conjugal rights against each other. The agreement has the provision for the maintenance of Rs. 2,000 per month to his wife and her two children. While deciding the validity of an agreement between the parties to live apart, theHigh Court held that such an agreement is unenforceable because it has brought to an end all the marital rights which a husband can exercise over his wife.

4.     Sunita Devendra Deshprabhu V/s Sita Devendra Deshprabu

High Court of Bombay at Goa - 4th October 2016

2016 SCC Online Bom 9296

On 7th May 1951, Raghunathrao Deshprabhu and Sita Devendra Deshprabhu had entered into a prenuptial agreement. The prenuptial agreement states the provision relating to the separation of assets. On 10th November 1987, Raghunathrao Deshprabhu died. After filing suit, Sita Deshprabhu also died. It was contended that there were no pre-existing rights in view of the prenuptial agreement. It was submitted that the prenuptial agreement between Raghunathrao and Sitadevi shows that they had agreed for the regime of separation of assets. Hence, in this case, the Court considered the Prenuptial agreement for deciding the issue relating to the separation of assets among the parties. However, there was no point relating to the validity of the prenuptial agreement in the judgement.


In India, prenup agreements are still considered a taboo, unlike the other western countries. Its validity and constitutionality is unstabilised, and no accurate decisions have been made yet. From the above-mentioned case laws, it can be concluded that there is no landmark judgment which states that the prenuptial agreement is valid in the Court of law. However,to make the prenuptial agreement enforceable, it must be a valid contract under the Indian Contract Act 1872. Such an agreement will be legally binding only when there is mutual and free consent of both the spouses. Also, the clauses mentioned under the prenuptial agreement must be fair and clear. It is advisable to have a prenuptial agreement as it provides hassle-free litigation in the event of failed marriage like a divorce, judicial separation, etc. In the prenuptial agreement, since the division of assets is done before the marriage, it becomes simpler to implement such an agreement in case if the marriage fails in future. However, it is advised to consult a lawyer before drafting a prenuptial agreement for clarity and to avoid ambiguity.

Written By:
Kishan Dutt Kalaskar Retired Judge

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