Prenuptials: A boon or bane for India?

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Prenuptials or premarital contracts are very common in the Western countries, where prenups are signed on a daily basis not just by celebrity couples but also everyday couples who are taking the big leap of marriage. With divorce rates being high, prenups actually make a lot of sense in the western culture.

But what about India? Are prenups legally accepted and binding in India? Do couples in India go for prenups? How does the Indian society look at prenups?

These are just a few questions we will be answering today.

Prenuptial Agreement

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A prenuptial agreement is a contract between two individuals who are about to get married, outlining the state of finances and personal liabilities in case the marriage fails or in case of death of one of the spouses. The contract also includes clauses about alimony, child custody in case of divorce and other conditions not limited to marital responsibility distribution and infidelity.

Prenuptial Agreement in India

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In India, prenuptial agreements unfortunately are neither valid, nor legal under the marriage laws because we do not consider Hindu marriage as a contract. Instead for us, a marriage is considered as a religious bond between husband and wife and hence prenuptial agreements do not hold legal binding in India.

However, a prenuptial agreement can be considered as valid as a ‘Contract’ made between two parties who mutually agree and sign the contract voluntarily, without any undue influence, force or threat. These contracts are governed by the Indian Contract Act and thus have as much sanctity as any other contract, oral or written.

But in the Court of Law, there is a possibility of the Marriage Act superseding the Indian Contract Act.

The only kind of marriage which is a contract in India is the Muslim nikah. So a prenup may have a legal binding in Muslim marriages. As per the nikah rules, the groom is also supposed to pay a mehr or a bride price which is an amount meant to secure the bride’s well being in case of talaak or divorce. But today, people just pay a token amount and get over with this tradition.

Current Scene in Indian Legal System on Prenuptial Agreement

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The minister for women and child development, Maneka Gandhi has sparked up the discussions on prenuptials again. On 23-Nov-2015, her ministry called for a consultation meeting with legal experts and stakeholders and discussed the plausibility of bringing this law enforced and legitimise it in India.

This is just a beginning to a long journey. It will take atleast 4-5 years till such a law comes in practice in India.

Will a Prenuptial Agreement be successful in India?

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There has been a debate in the lawyer fraternity regarding the success of prenuptial agreements in India. A faction of lawyers believe that prenuptials will definitely help in financially securing the bride’s well being in case of divorce.

While other faction says in a society where dowry is still prevalent and the groom’s family is considered superior, will women come forward and negotiate the financial terms with their would be spouses? Will women be able to do justice in laying out the terms and conditions of a prenuptial agreement?

However, there is one fact which all lawyers agree upon – Divorces will become easy in court and will not have to be dragged for years to come to a mutual conclusion once prenups are in place.

All said and done, will we be better off with prenups? To know the answer to this, we need to wait and watch.

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She is a dynamic HR, an avid reader, an amateur poet and a natural writer. She is an ardent believer in God and tries to dig up happiness even in the darkest of mines. Join her as she takes you on a joyride called ‘life’.

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