Is India ready for Prenuptial Agreements?

Prenuptial Agreements in India –

“Prenups”, as they are commonly called, are contracts in which two partners agree upon a set of terms and provisions before marriage. They typically cover concerns about dividing property and other assets, alimony and child custody in case of divorce, but could also include conditions about infidelity or even division of marital responsibilities.

Prenuptial agreements are recognised as valid legal documents in several Western countries, but they have no validity in India. A growing number of Indian elites – typically from business families – are now choosing to sign prenups before tying the knot, but in case of a divorce, these pacts would mean nothing in a court of law.

But even if the government succeeds in making them legal, many lawyers believe prenups are unlikely to be popular in India, where marriage is considered a religious union and where a bride’s family often has fewer bargaining powers than the groom’s.

‘They will definitely save the court’s time’

Prenuptial agreements have been on the government’s agenda for more than three years, ever since the Marriage Laws (Amendment) Bill was introduced. The major aims of the bill were to include “irretrievable breakdown of marriage” as a clause for divorce and to allow women half the share of her ex-husband’s property. “Prenups were lower down on the agenda and they were not discussed earlier, and eventually, even the other amendments proposed in the bill were not passed,” said Vandana Shah, a divorce lawyer in Mumbai.

Prenuptial agreements are in the limelight now, but for them to be given legal validity, Indians would first have to negotiate the link between marriage and religion.

“The reason prenups are legally null and void right now is because marriage is considered sanctimonious and religious, and a prenuptial contract is not guided by religion,” said Shah. “Even if you have a registered marriage in court, it would be considered as having religious sanctity.”

In a country steeped in tradition and religion, prenuptial agreements would have limited takers even if they were legal.

“Right now, only the elite get into prenups so that their financial assets are looked after,” said Mridula Kadam, a family court lawyer in Mumbai. “Most of our country is poor and the masses would not opt for premarital contracts. But prenups will definitely cut short acrimonious battles in court and save the court’s time.”

‘Women cannot be self-sacrificing’

The main reason the Women and Child Development ministry has taken up the case for legalising prenups is its concern for the security of divorced women. Divorce cases in India often run into several years of courtroom battles over property, assets and maintenance, and women often end up losing out on their rightful share. If the terms of property division and maintenance are clearly spelt out in a legally valid prenup, however, it could ensure that women get the assets and support they are entitled to without going through lengthy litigation.

“On principle, this is very nice and prenups in other countries do bring equality for women,” said Aishwarya Bhati, a Supreme Court advocate in Delhi. But in India, where the tradition of dowry is still pervasive, signing pre-marital contracts could be a bit more complicated.

“Here, a girl’s family already has a set of social taboos to deal with – they are almost never on equal terms with the groom’s family,” said Bhati. “A bride’s family is not always in a position to choose, so would they be in a position to negotiate an agreement that can provide security to the girl?”

A good example, says Bhati, is the Muslim nikah, the only kind of marriage in India that is, in fact, a contract. According to nikah rules, the groom has to pay a mehr or bride price – an amount meant to secure the woman’s well-being in case of a divorce. “But today people just pay paltry, token sums of money as mehr – it is never commensurate with what women would actually need to secure themselves after a divorce.”

In this social context, prenups could remain nothing but lip service.

“Prenups can work if women are smart and concise while writing them,” said Shah. “They must not be self-sacrificing and agree to unequal terms.”

Recently I learnt that prenuptial agreements in the US are binding by law. If the agreement clearly stipulates something – like say neither husband nor wife will ask for alimony – then that is final regardless of how fair or unfair it might be at the time of divorce. The assumption is that both parties are adults and if a valid prenuptial contract was entered into freely without fraud, then people must take responsibility for their decisions.

I found myself wondering whether activists will accept such a system in India. What if a couple signs a pre nup saying that neither person will ask for alimony or maintenance and that each will have their own finances. During the subsequent divorce if the wife has been a homemaker, courts will have no choice but to cut her loose without any financial aid because the prenup was very clear regarding this.

So my question is this – do we treat grown women as adults who are free to determine their own future and even ruin it if they wish by being foolish? I know that many laws in India are meant to protect the “poor” and “uneducated” women from exploitation, but what if such a woman signs a prenuptial agreement to her detriment with full knowledge of what she’s doing? Do we allow her to sign her future away and give her the respect she deserves as an adult along with the freedom to do with her life as she wishes?

A large portion of women’s rights deals with setting women free from “protective” institutions which ultimately seek to control them – like many parents, the moral police, khap panchayats and the like. But with freedom comes responsibility. Do we also give supposedly poor and uneducated women the right to be foolish and enter into contracts freely which might go against their best interests? Let’s assume they’re fully aware of the consequences of their actions.

As of now, I don’t see prenuptial agreements having legal validity in India. If some provisions are blatantly unfair, many of us will cry out that the woman is being exploited and step in to save her from a life of poverty and destitution. But is that a good thing? I don’t really know. On the one hand, we must allow women to enter into legally binding contracts as adults. On the other hand, many will say they need protection from being taken advantage of.

In other words, do we treat underprivileged women as true adults in every sense of the word? If not, why don’t we just abolish the concept of “reaching the age of maturity” entirely?


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