Legal Validity of Pre-nuptial Agreements in India

An Analysis

Abstract

Agreements between marriage partners, either before or during the continuance of marriage for effecting generally, thus far uncommon promises, made in exceptional circumstances, have a long history. Their validity was determined on the basis of personal laws of the parties and these agreements were generally declared against public policy. This created an impression that these pre or postnuptial agreements are not legally valid as the marriage is a sacrosanct in nature (especially in Hindu law), and it cannot be modified or changed by an agreement. This sacrosanct nature of marriage has considerably been diluted by codified laws and pre or postnuptial agreements are now increasingly being executed. It will be against the interest of the parties to make these agreements legally unenforceable. The stakeholders have made several meetings with the concerned ministry for a legislation to make these agreements legally valid, but no step has been taken in this direction.

This paper argues that these agreements are in no way different from other agreements, and are covered under the Indian Contract Act. There is no express provision in the Indian Contract Act that prohibits pre or post nuptial agreements and their validity has to be determined on the basis of the stipulations provided in these agreements. These agreements are not against public policy, but are in favour of it, as these agreements can be used for resolving amicably often contentious issues like residence, custody of child, polygamy, adultery, distribution of property, joint investments, insurance policies, nominations, pension, gratuity or arbitration/ mediation, etc. in case of disputes. These agreements can be used by the courts as guides to resolve parties’ marital disputes which they have executed at the time when they were in good and sweet relations and seeds of animosity had not been sowed yet. There is also constitutional support for these agreements as the parties or their guardians are choosing these prenuptial agreements by their free will by exercising their fundamental right to choose.