Home Effect of marriage Love with a clause: Prenuptial agreements in India

Love with a clause: Prenuptial agreements in India

April 17, 2025

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This article is written by Arya Senapati. It deals with the legal status of prenuptial agreements in India. It focuses on how prenuptial agreements are treated differently under different personal laws. It also covers the benefits, format, and essential conditions for a valid prenuptial agreement.

Table of Contents

Introduction

Did you hear about the suicide case due to alimony? Recently, the entire nation was shocked by the act of suicide of a young IT professional named Atul Shubash, who was pushed to the noose by the harassment meted out to him by the judiciary, legal system, and his wife.

The case was concerning his divorce from his wife, who demanded an unreasonable amount of dowry, and this unreasonable demand was also sanctioned by the judge. Throughout the proceedings, Atul kept stating that it was not within his capabilities to fulfil these demands, but to no avail. Ultimately, it ended up in his death, and the incident has raised much public discourse on divorce laws and maintenance.

This brings us to the topic of prenuptial agreements, what they mean, why they are required and whether it is legal in India. Many people who participated in these discussions raised the question of what could have been avoided if there had been a prenuptial agreement in place. This question comes into existence because, unlike many Western countries, prenuptial agreements are not legal in India.

What is a prenuptial agreement?

Everyone who has ever watched American TV shows like Two and A Half Men or Dynasty would have surely come across the term “prenup” and wondered what it is. A prenup is short for a prenuptial agreement. Nuptial ties mean the ties of marriage, and their prenuptial agreement means a written contract between two people who are yet to be married, outlining terms and conditions which would apply in case the marriage breaks down or ends up in divorce.

Usually, a prenuptial agreement is in the form of a written contract with various clauses. What do these clauses talk about? They largely deal with how the assets and liabilities of the spouses would be dealt with in case of a divorce. It lists down individual assets and liabilities of each of the spouses and mentions in detail the property rights of each of the spouses during the marriage and after the marriage ends.

Now, what are premarital agreements, antenuptial agreements, or prenuptial contracts? Don’t be confused if you come across these terms because they all mean the same thing: prenuptial agreement. Different nations have different terminologies for them, but they all entail the same thing.

One simple way to understand prenups is that they are like a “just in case” plan for your marriage’s future, which helps you avoid future financial problems.

What is the need for a prenuptial agreement?

As opposed to what the American TV shows and movies have made us believe, prenuptial agreements are not just for the rich, they are for everyone who needs to keep their assets and liabilities in check and separate from the institution of marriage. Let’s take a look at the various important reasons why one would want a prenuptial agreement:

Children from a prior marriage

Many couples have children from a prior marriage. In this situation, before entering a new marriage, the couple can draft an agreement mentioning the properties belonging to them, which would pass on to their children as inheritance. Why is this necessary? This allows them to protect the rights of their children and provide them with enough inheritance while saving resources to provide for each other when necessary.

Demarcate financial entitlements

Many couples from humble backgrounds are increasingly using prenuptial agreements to outline their financial rights and responsibilities in the marriage to avoid conflicts related to finances, assets, and liabilities.

For example, prenuptial agreements can list out:

How the couple can individually manage a joint bank account would be how each of them contributes to the house rent, utility bills, and credit card bills.

This clear division of responsibilities and rights helps maintain a smooth marriage by making both partners equally accountable for their part.

Avoid lengthy divorces

Most judicial systems have processes in place which make it extremely difficult to get a divorce due to the length of the proceedings. So how can prenuptial agreements help in avoiding lengthy divorces?

By specifying how the property is going to be divided and by mentioning pointers related to alimony, the prenuptial agreements lessen the length of proceedings, as there is not much left for the courts to decide and deliberate upon. This allows for speedier resolution of cases.

For instance, imagine a couple, Maya and Raj, who decide to get married. They draft a prenup agreement mentioning how their assets would be distributed if they end up getting a divorce. After years, when the marriage ends in an unfortunate manner, the prenup agreement helps them avoid a long legal battle, as the terms were already outlined in a prenup.

Debt protection

Finally and most importantly, couples enter into a prenuptial agreement to ensure that they are protected from each other’s debts. How so? Under many jurisdictions, a wife can be held liable for a husband’s debts and vice versa.

Therefore, by having a prenuptial agreement that limits the wife’s liability to her debts only or vice versa, the spouses are protected from having to carry the burden of each other’s debts even after the breakdown of the marriage. This helps them maintain their finances and responsibilities in a careful manner.

You can imagine a situation where a couple, Ronnie and Reah, enter into a prenuptial agreement mentioning the debt protection clause that each of them would only be liable for their own liabilities and debts. Their marriage sadly comes to an end, and when the ASC Bank, from which Ronnie took a loan, approaches Reah for recovery, she denies it as per the prenuptial agreement.

How are prenups viewed internationally?

Now that we have understood the importance and benefits of prenuptial agreements, let’s go through the global perspective on prenuptial agreements across jurisdictions.

When it comes to the United States, all fifty states of the United States consider prenuptial agreements as valid, but their interpretations can vary from one state to another. On a general note, prenuptial agreements in the United States must be entered into voluntarily, and the parties must comply with a full disclosure of their assets. The Uniform Premarital Agreement Act was adopted by many states to create a standard legal framework related to prenups in the United States.

In England and Wales, prenuptial agreements were initially seen to be against public polic,y but the decision in the case of Radmacher vs. Granatino (2010) changed the law and stated that prenuptial agreements can be enforced if they are voluntarily entered into with an understanding of the consequences of the terms in the agreement. The only situation where they are unenforceable is when they have terms unfair to one party. This decision has contributed to a larger acceptance of prenuptial agreements in English society. The change in societal perspective must be compared with that of Indian society, which is slowly making a move towards changes in social institutions like marriage.

When it comes to Canada, prenuptial agreements are treated as marriage contracts and are dealt with by their provincial laws. For example, in the jurisdiction of Ontario, they have the Family Law Act, which talks about the legality of agreements that couples can enter into outside the statutory regulations of property to define their own terms related to property in marriage contracts. The common factor with the previous two jurisdictions is the necessity for consensual agreement and full disclosure of assets by the parties.

Legal framework in India

After having analysed the details of prenuptial agreements and the global perspective on them, we come down to the most important question, i.e. what is the state of prenuptial agreements in India? In the Indian legal context, the attitude towards prenuptial agreements is truly ambiguous.

On one side, we have an agreement resembling a prenuptial agreement in Muslim marriage called Nikahnam, which is considered valid. And guess what? It is one of the most essential features of Muslim marriage, but on the other hand, prenuptial agreements related to other religions are considered invalid and void. Thus, the Indian position cannot be clubbed into one.

As Indian society progresses towards newer ideas and narratives, spouses have started facing newer forms of social issues that have not been properly dealt with by the current legal system. Issues like marital rape, maintenance, child custody etc. are commonly emerging in the institution of marriage in India.

The past generation was all about accepting the possibility of divorce, but the major concern for the current generation is the financial and emotional turmoil that one goes through due to divorce. These issues have also led to a prolonged period for getting divorce decrees, which dissuades a lot of couples from initiating divorce proceedings.

Currently, couples who file for divorce must be mentally prepared for a range of issues, for instance:

deliberation on a division of personal and joint assets,
custody of children,
maintenance and alimony.

These issues largely concern couples because they lead to an immense loss of time and money.

What is the solution to this? The first and foremost thing that needs to be changed is the societal attitude towards divorce.

Even though no one wants to foresee a negative circumstance while entering a marital bond, one must not be dismissive of the possibility of a divorce and take appropriate measures to reduce the load when it comes to that. Pre-negotiated terms could make it extremely easy for spouses to get a divorce without going through the hassle of court proceedings.

As the Indian legal system and society become increasingly accepting of divorces, it is also important to move towards legalising prenuptial agreements for people of all religions to ensure a smoother dissolution of marriage.

Legal status of prenuptial agreements in India

Having understood the general attitude of the Indian legal system towards prenuptial agreements, we shall now move towards the understanding of the legal status of prenuptial agreements in India.

Generally, there are no legal provisions that regulate the existence and validity of prenuptial agreements in India, but in the legislative domain, Section 40 of the Divorce Act, 1869, applies to the breakdown of Christian marriages.

This law specifically states that the district courts must look into the existence of prenuptial agreements and must consider the terms of the agreements while passing a divorce decree or while reaching a settlement. The next question we come across is, what about Hindus?

For people belonging to Hinduism, marriage is seen as a religious bond, and therefore, the acceptance of prenuptial agreements is far-fetched as compared to Muslim and Christian marriages. A Hindu marriage is not treated as a contract but rather as a sacrament. As compared to India, where marriage is viewed as a sacrament due to religious leanings and is often termed as an unbreakable bond for seven lives, in most Western countries, there exists a very liberal attitude towards marriage. In India, divorce is seen as taboo, and there exist multiple social obstacles towards divorce.

This happens largely because of religious teachings and social morality. Even after enduring multiple forms of cruelty and emotional torture, people are forced to stay in the ties of marriage because divorce is looked down upon.

However, things are slowly changing in urban settings as more awareness is being created and newer ideas emerge in societies due to globalisation. No matter how trivial it sounds, it cannot be denied that western media, for example, movies, TV shows, and books entering the Indian market have spearheaded this change beautifully by ensuring that attitudes of people towards marriage slowly transform.

This makes it evident that in Western countries, considering marriages are viewed liberally and divorce is not taboo, prenups have become more or less a necessity for many. There is an increasing adoption of prenuptial agreements in countries like the United States of America, Australia, European Nations, and Canada.

So why are prenuptial agreements not legal in India yet? Let’s find out more ahead.

Situation where there is a prenuptial agreement between a Hindu couple.

In such a situation, the agreement would be governed by the Indian Contract Act, 1872, owing to the contractual nature of the agreement, but since any agreement that is against public policy is void under the provisions of the Indian Contract Act, the prenuptial agreement will also be considered void.

What we can deduce from this analogy is that the main obstacle towards acceptance of prenuptial agreements in Hindu marriages is the public policy or morality that runs through Indian society at large. This observation was also laid down in the case of Krishna Aiyar vs. Balammal (1910), wherein the Madras High Court clearly stated that any agreement governing the terms of marriage and its dissolution would be considered void due to it being opposed to public policy at large.

The Indian courts show a tendency towards considering prenuptial agreements as a method that promotes separation between partners rather than viewing them as a tool to shorten divorce proceedings.

Coming to the details of the legal status of prenuptial agreements in Muslim marriage, the best example to study this would be the case of Abdul Moin vs. Mst. Rafia Bano (2014), wherein the Delhi District Court clearly stated that prenuptial agreements are valid in Muslim marriages. The primary reason behind this was the fact that Muslim law views marriage as a civil contract. However, we need to note that the validity of prenuptial agreements in Muslim marriages is subject to multiple conditions.

First and foremost, the prenuptial agreement can only contain those terms and conditions that are allowed under Islamic laws. Secondly, the consent of both parties is equally important to make the agreement binding. One of the most popular examples of prenuptial agreements in Muslim marriage is the agreement made to pay the Mahr Mu’ajjal or Mu’akhkhar by the wife after she goes through a separation or after the death of her husband.

Overall, it is safe for us to conclude that even though the legal status varies from one personal law to the other, the undercurrent of public policy and morality hinders the societal acceptance, popularity and adoption of prenuptial agreements in India. What could be done to solve this issue is to raise awareness regarding the pros and cons of prenuptial agreements, or through the constitution of a committee to examine the preparedness of Indian society to accept prenuptial agreements.

Once this is done, legislators can conduct surveys across constituencies and develop a model prenuptial agreement or something resembling them to protect the rights and liabilities of partners in a marriage.

We need to note that Indian society has become more accepting of changes in the institution of marriage through the introduction of live-in relationships and modern divorce laws, but one must try to understand what has led to the denial of Indian society towards prenuptial agreements.

Observations

As compared to India, where marriage is viewed as a sacrament due to religious leanings and is often termed as an unbreakable bond for seven lives, in most Western countries, there exists a very liberal attitude towards marriage. In India, divorce is seen as taboo, and there exist multiple social obstacles towards divorce.

However, things are slowly changing in urban settings as more awareness is being created and newer ideas emerge in societies due to globalisation. No matter how trivial it sounds, it cannot be denied that Western media, for example, movies, TV shows, and books entering the Indian market have spearheaded this change beautifully by ensuring that attitudes of people towards marriage slowly transform.

What are the cultural and social perspectives of prenup agreements?

In a country like ours, the acceptance of prenuptial agreements would unarguably depend on the attitude of society and the mindset of the general public to a very large extent. Our cultural values are intrinsically linked with religious teachings and morals. I believe it is very important to note that in India, marriage is seen as a sacrosanct institution, and that is the biggest obstacle towards the legalisation of prenuptial agreements in India.

Ancient perspectives on marriages vis-a-vis prenups

In India, there is an archaic outlook towards the institution of marriage. It is easy for us to observe one thing that social change is easily accepted in other spheres, but the biggest resistance that social change faces is when it attempts to enter the space of marriage in India. The most grave concern that society has is that the introduction of contractual aspects like prenuptial agreements can eventually change the nature of Hindu marriage from a sacrament to a contract, just like Muslim or Christian marriages, which go against the very tenets of Hinduism.

Myths about prenuptial agreements in India

I believe the third obstacle that the introduction of prenuptial agreements may face in India is the idea of people who believe that documents like prenuptial agreements can lead couples to foresee the possibility of ending their marriage before even beginning it.

Dissolution of marriages in India is still seen as an exception and not the norm. The introduction of prenuptial agreements can make it a norm, which is the biggest concern of the general public.

Another argument against prenuptial agreements that I wish to highlight for you is that marriage will lose its significance in Indian society with the introduction of easy escape routes like prenuptial agreements. This argument is substantiated by the idea that with the existence of a method which contains pre-negotiated terms for dissolving a marriage, the process becomes extremely easy and many couples will eventually choose to take the route even when they meet with the slightest hurdles in their relationship, therefore diluting the essence of marriage as a social institution in India.

In my understanding, all the above arguments can be contested by studying the evolution that the institution of marriage has taken in India. Starting from how the roles of women have changed within the folds of marriage, to the abolition of dowry, child marriage, Sati-pratha, widow remarriage prohibitions and introduction of live-in marriages, the institution of marriage has undergone multiple changes in India.

The arguments are based on a century-old understanding of marriage, but compared to today’s reflection of marriage, the past idea almost pales in comparison. Therefore, the introduction of a new reform like a prenuptial agreement should be accepted with few reservations necessary to maintain the sanctity.

Evolution of the judiciary’s perspective

Going forward, you should note that the Indian judiciary’s outlook towards Hindu marriage is slowly evolving. For instance, Hindu marriage was solely viewed as a sacrament earlier, but currently, with cases like Muthuswami Mudaliar & Anr. vs. Masilamani & Ors. (1909), the courts have started viewing Hindu marriage as both a sacrament and a contract of a civil nature.

Similarly, in Christian laws, which are treated as sacramental contracts, prenuptial agreements can be taken into consideration by the courts. We must understand that marriage is not devoid of contractual aspects under most, if not all, personal laws in India.

Therefore, it is safe for us to state that contractual elements can be introduced into the sphere of marriage without diluting the sacramental factor of marriage. The introduction of prenuptial agreements would therefore not affect the sanctity of marriage to a great extent.

I would like to point out that Indian society needs to accept the fact that social perspectives have changed a lot, and married couples face newer challenges now as compared to what they faced years ago. Keeping that in mind, prenuptial agreements must be viewed as a risk mitigation tool rather than being treated as marriage-breaking agreements.

Concerns over misuse

Another ground of resistance that prenuptial agreements may face in India is due to the perceived idea that some women enter marriage with a view to acquiring the wealth of their partner. Society is prone to believe that a woman may negotiate the terms of the contract in such a way that the man feels to be in a vulnerable position. There could be an element of fraud wherein the woman introduces clauses demanding huge amounts of alimony in the prenuptial agreement, thus putting the man at a disadvantaged position.

While the above argument may stand true in certain cases, in the larger scheme of things, we need to recognise that India is a patriarchal society where men still have more bargaining power over women, and usually, the woman is in a vulnerable position. Rather than harming a man, prenuptial agreements can balance the rights of a man and woman before marriage, thus increasing the safety and security both partners feel within the institution of marriage.

We must go back to the basic principles of contract law to counter this particular agreement. Contract law clearly states that any law created on the ground of fraud or undue influence, or misrepresentation, can be declared void. Therefore, it does away with the concern of the presence of fraud in the folds of marriage through prenuptial agreements. Such prenuptial agreements can be terminated once enough evidence to prove fraud or deceit is presented in front of the court by the party who has been defrauded.

The society must have trust and faith in the merits of the judiciary to apply prenuptial agreements in a strict manner, protecting the rights of both parties without fail. For instance, if there exists a no alimony clause in the prenuptial agreement and the court observes that the wife is incapable of maintaining herself, the courts can go beyond the agreement and provide for maintenance.

Prenuptial agreements in Hindu marriage

Now that we have covered the most important fundamentals of prenuptial agreements and their status in India, let’s get into the perspectives of the Indian judiciary on prenuptial agreements to understand the subject in a better way.

First and foremost, let’s cover case laws related to prenuptial agreements in Hindu personal law.

Invalid Hindu prenuptial agreement

In the case of Sheonarain vs. Paigi and Anr. (1885), the Allahabad High Court dealt with a matter wherein the husband was the plaintiff and the wife was the defendant. The husband had entered into an agreement prior to marriage where the terms stated that he would reside at the house belonging to his mother-in-law, along with his wife. After following the terms for a short time, the husband left the home and refused to come back. He also started cohabiting with another Muslim woman who was his mistress.

After some time passed, the husband filed a suit for restitution of conjugal rights. In that particular suit, the Allahabad High Court ordered the wife to resume residing with her husband after her husband was restored to his caste. One of the contentions taken by the wife in this case was that there existed an agreement before the marriage which the husband contravened. The High Court stated that such agreements are absurd and hold no value in the eyes of the law, and therefore, it has no effect whatsoever.

In the case of Tekait Mon Mohini Jemadai vs. Basanta Kumar Singh (1901), the husband’s parents and he agreed before marriage when the husband was a minor. The agreement stated that the man would reside with his mother-in-law post-marriage and would follow all the instructions set by the mother-in-law. The husband followed the agreement for 15 years, after which certain disturbances made him leave the house, and then he asked his wife to come stay with him.

The case was dealt with by the Calcutta High Court, which stated that agreements entered into prior to marriage are against public policy and therefore are void under Hindu law. The court stated that premarital agreements promote separation between partners and, therefore, prenuptial agreements are invalid in India.

In the case of Sribataha Barik vs. Musamat Padma (1968), the Orissa High Court dealt with a revision petition against an order which was passed by a sub-divisional magistrate ordering the husband to pay the wife a sum of Rs. 40 as maintenance for her and her child. In this particular case, there was an agreement before marriage wherein the husband had agreed to stay at his in-laws’ place after the marriage.

After following the agreement for a few years, the husband left the in-laws’ place but continued to stay in the same village with his mother. He also requested his wife to come and stay with him. The court stated that prenuptial agreements are void primarily because of public policy reasons. The court stated that Hindu marriages are considered sacraments and therefore there exists no space for contractual elements within the marriage.

Valid Hindu prenuptial agreements

In the case of Pran Mohan Das vs. Hari Mohan Das (1924), a man agreed to marry a woman when the woman’s father promised him that he would gift a house to his daughter. Post the marriage, the father, who is the plaintiff in this case, transferred possession of the house through an unregistered gift deed to his daughter. The married couple resided in the house for multiple years and then sold the property to someone else. The plaintiff’s father filed a suit to recover possession of the house.

As compared to the previous cases where pre-nuptial agreements were considered void, in this case, the Calcutta High Court considered the pre-nuptial contract as valid and applied the principle of part performance of contract. The principle says that if one party has performed their end of the agreement, the other party is bound by the terms of the contract.

Based on this particular principle, the court prevented the father from recovering possession of the property. The primary reason that the court considered this agreement valid was that it was not like a marriage brokerage contract and was not opposed to public policy.

In the case of Bai Appibai vs. Khimji Cooverji (1934), the Bombay High Court had a neutral point of view towards prenuptial agreements. In this case, the husband had abandoned his wife. There also existed a prenuptial agreement before marriage regarding separate maintenance and residence if she maintained her chastity. The court stated that the previously decided principle that prenuptial agreements are invalid primarily because of public policy reasons will not stand true when the husband abandons the wife.

The court noted the fact that the Hindu law places the husband in a position where he is treated as a god or a deity by the wife. This proposition should not allow a husband to abandon his wife, deny the marriage or ignore her needs and demands.

The court therefore held the premarital agreement as valid and ordered that the wife must be granted the promised relief of separate maintenance and residence. Therefore, this case added a condition to the previous ruling that prenuptial agreements would be considered by the court when the husband abandons the wife.

Similarly, in the case of Commissioner of Income Tax vs. Mansukhrai More (1988), the Calcutta High Court stated that whenever a prenuptial agreement has terms which are governed by the Transfer of Property Act,1882 the court shall treat it as valid and it would not be treated as invalid due to public policy reasons. It would be justified for the courts to consider such prenuptial agreements and apply them in cases where the dissolution of marriage is concerned.

Now that we have covered the various judicial interpretations of prenuptial agreements under Hindu law, let’s do the same for Muslim marriages next.

Prenuptial agreements in Muslim marriage

We have already covered the perception of Muslim law towards prenuptial agreements, but now let’s understand the judicial perception of prenuptial agreements in Muslim marriages through decided cases.

Invalid Muslim prenuptial agreements

In the case of Bai Fatma vs. Alimahomed Aiyeb (1912), a Muslim couple had filed for separation in front of the Bombay High Court. There existed a prenuptial agreement between the couple, which stated that the husband would pay a certain sum of money to the wife as maintenance in case they undergo a divorce or separation. The wife demanded that particular sum, but the court stated that the prenuptial agreement was void.

Why? Because the court relied on a foreign judgment and English laws, and came to the conclusion that prenuptial agreements are opposed to public policy. Surprisingly, current English laws consider prenuptial agreements as valid and not opposed to public policy, as they promote personal autonomy amongst spouses.

In the case of Khatun Bibi vs. Rajjab (1926), the Allahabad High Court was dealing with a suit for restitution of conjugal rights filed by the husband. The respondent’s wife stated that there existed a prenuptial agreement between the spouses before marriage wherein the husband had agreed to stay at his in-laws’ place and would not stay anywhere else without seeking permission from his wife and his mother-in-law. The agreement also stated that in case the man breaches these conditions, the mother-in-law is free to arrange for the wife’s remarriage.

The Allahabad High Court stated that such prenuptial agreements are invalid because they bind the liberty of the man, and that is against public policy. Also, as we have observed earlier, under Muslim law, only those prenuptial agreements are valid that follow the terms of Muslim law. The forceful act of making a man stay at his in-laws’ place is against Muslim law and therefore invalid.

In the case of Ahmad Kasim Molla vs. Khatun Bibi (1931), the husband had entered into a prenuptial agreement with his wife where he promised that if he ever does some cruel treatment towards his wife, his wife is free to leave him and he would have to pay a certain amount for her sustenance along with a monthly house rent for her residence.

After a few days of their marriage, the man started cruelly treating his wife, and the woman eventually left him. The man sent a talaknama (a notice for divorce under Muslim marriages) to her, but she did not receive it. The Calcutta High Court stated that the communication of talaknama is not necessary for divorce to take effect, but it is necessary for the calculation of the iddat period, as the period starts only when the notice of divorce comes to the knowledge of the wife.

On the topic of kabinnama or prenuptial agreement, the court said that since no particular period is mentioned for paying the sustenance allowance, the prenuptial agreement is invalid. The wife can only avail of maintenance for the iddat period and not beyond that. This judgment was highly criticised for being bad in law.

Valid Muslim prenuptial agreements

Now let’s see some judgments related to Muslim marriage where prenuptial agreements are treated as valid.

In the case of Saifuddin Sekh vs. Soneka Bibi (1954), a woman agrees to marry a man on the simple ground that he signs a prenuptial agreement or a kabinnama. The prenuptial agreement simply stated that the man would not bring his two previous wives to stay with him without the permission of his to-be wife. He signed the agreement, and they got married, but later on, the husband violated the terms of the agreement, and the wife filed for divorce based on the agreement.

The Gauhati High Court considered this agreement valid as it did not go against public policy. How? Because the terms of the agreement did not stop the man from enjoying conjugal relationships with his previous wives. The terms simply prevented him from residing with them without the consent of his present wife. The agreement, therefore, was enforced, and divorce was granted to the wife.

In the case of Razia Begum vs. Sahebzadi Anwar Begum (1958), there existed a prenuptial agreement wherein the husband had promised his wife, i.e. the plaintiff of this case, to pay a certain monthly expenditure to her for her needs, which were termed as “kharch-e-pandan”. The husband abided by the terms and paid the amount for a certain time, but eventually stopped making the payments. The wife filed for divorce due to a breach of the prenuptial agreement.

The Supreme Court of India treated the prenuptial agreement as valid, as it did not go against public policy. It simply had terms where a wife was demanding economic claims from her husband for her own needs, which is not unreasonable. The husband also admitted to the claims after the suit was filed, and therefore, there was no matter of divorce.

In the case of Mohd Khan vs. Shahmali (1971), there existed a prenuptial agreement where the husband had agreed to stay in the house of his wife’s father as a khana damad and if he decided to leave then he would have to pay a certain sum of money which was spent for the marriage ceremony by the wife’s father. The agreement also stated that non-fulfilment of these terms would, by default, result in a divorce.

The man ran away from his father-in-law’s house and was away for four years. During these years, he did not fulfil any marital obligations. The main question of law that arose in front of the Jammu and Kashmir High Court was whether the prenuptial agreement is enforceable or is it against public policy. The High Court stated that the custom of khana damad is a common practice in the Kashmir region, and it was largely voluntary. The khana damad also gets a lot of privileges during his stay. Considering all these factors, it is not at all against public policy, and the prenuptial agreement is valid.

Tabular comparison of prenuptial agreements in major religions

Category	Hindu	Muslim	Christian
Validity	Invalid	Partly Valid	Partly Valid
Conditions	Considered valid only under the condition that the clause is regarding a transfer of property.	Valid only if it does not go against the essential regulations of a valid Muslim marriage or any Muslim law.	It can only be considered by the courts during divorce proceedings. Has no binding effect.

Model draft prenuptial agreement for India

Now that we have discussed the various judicial interpretations of prenuptial agreements in India, the next step for us is to discuss what an ideal prenuptial agreement in India would look like. All prenuptial agreements across the globe have certain essential clauses on them, and therefore, these clauses will also teach you what the essentials of a prenuptial agreement are across the globe. Let’s understand the various categories of clauses of a prenuptial agreement:

Asset clauses

What is the primary purpose of prenuptial agreements, as discussed earlier? It is drafted and entered into primarily to protect the assets and liabilities of spouses. Therefore, the first and foremost clause in every prenuptial agreement must be related to asset and liability distribution.

What are the assets that we are talking about? The simple answer is that most married couples individually and jointly hold various assets, which form a physical part of their household and their life. These assets can include land, jewellery, money in joint bank accounts, houses, cars, etc. What are the liabilities? Liabilities for spouses include their individual and joint loans, EMI payments and other sorts of personal or any type of debt that they may owe to anyone.

Where does this idea of the consolidation of property come from? This idea emerges primarily from the religious understanding of marriage, which focuses on joint enjoyment of each other’s property and being liable for each other, too. Therefore, to avoid any issues related to these properties and liabilities post-dissolution of marriage, it is important to have a prenuptial agreement.

An asset distribution clause describes which partner shall receive how much portion of the jointly owned property after divorce, and to what extent one partner will be liable for the other partner’s debts (if at all, the person decides to take certain liabilities).

Let’s understand by an illustration: Mr Anik decides to marry Ms Jyoti. Mr. Anik owns a bungalow in Bangalore, and he wishes to keep it separate from his marital or shared assets. Mr. Anik has to mention his intention in the prenuptial agreement. Contrastingly, Mr. Anik cannot use any resources derived from the joint marital property to enhance or improve the value of the bungalow in Bangalore.

Till here, we have covered how properties and assets acquired before marriage would be dealt with under a prenuptial agreement, but what about properties acquired after marriage? The prenuptial agreement can mention in what manner those assets would be divided in case the spouse receives assets in the form of gifts or inheritance from others during the continuance of the marriage. The clause can mention in what manner these non-marital properties can be converted into marital property, either with the consent of both parties or through any other process.

These are the general considerations that will apply to all kinds of prenuptial agreements, but in case prenuptial agreements are treated as legal in India, what can be a unique clause that an Indian woman can incorporate in the agreement? One such clause that every Indian woman must incorporate in a prenuptial agreement is about her stridhan. Stridhan is essential to all the jewellery, properties and assets gifted personally to the bride for her needs. Clauses can be included mentioning her sole ownership over the properties and how they shall devolve in case of her death.

Another asset-related clause that every prenuptial agreement must have is a clause that mandates each spouse to disclose any personal income or financial gains and losses to the other spouse without trying to hide anything from each other. This maintains a transparent communication between both parties, which is not only essential for a healthy marriage but also important in case the marriage dissolves.

Custody or children clauses

After dealing with assets, the next thing that every prenuptial agreement must concern itself with is children and various aspects related to upbringing, maintenance, inheritance and custody of the children in case the marriage dissolves. When does this clause become the most important one? In situations where one of the spouses or both has children from their previous marriages that they are responsible for them.

Many such parents get concerned about securing the rights of their children from previous marriages over their assets before entering into a new marriage. These parents can secure the inheritance of their children by specifying the same in the clauses of a prenuptial agreement. What can the clause state? The clause can simply mention that in case the parent dies during the continuance of the divorce proceedings, the child will not be deprived of their right over his/ her shares in the property.

One would assume that spouses can mention clauses related to custody, visitation and maintenance of the child in a prenuptial agreement in case the marriage dissolves, but in most cases that is not possible.

You may ask why? The simple answer is that the custody and maintenance of a child is governed by the court keeping in mind the best interest of the child and considering there is no standardised test to determine which parent is more fit for the custody and it varies from a case to case basis, it is almost impossible to determine the samebeforeo marriage in a prenuptial agreement.

Also, we need to understand that all parents care about the mental health and wellness of their children. By imposing certain restrictive clauses on the prenuptial agreement, the child’s mental well-being is put at risk. It is universally true that all parents love and feel attached to their children, and therefore, if a prenuptial agreement mentions which parent gets custody of the child, the other parent may start feeling less attached to the child and eventually may start neglecting the child based on his/ her whims and fancies.

Now, coming to the topic of child support, it would never be ideal to place a cap on child support expenses between two partners because it is never possible to accurately determine the expenses of a child before marriage.

Spousal obligation and entitlement-based clauses

In a country like India, where people marry to seek lifelong companionship, support, and to raise a child, do you know why most marriages fail? Due to a misunderstanding, a lack of communication and non-fulfilment of expectations of one spouse from the other. As we all know, clarity and communication are the building blocks of a successful marriage.

Keeping the above proposition in mind, it is important to clear out the expectations between spouses before marriage. Prenuptial agreements can mention the specific rights and duties of each of the spouses towards each other and each other’s families. These prescriptions prevent one of the spouses from feeling tied down or bound by the other in case of misunderstandings.

Each of the partners has an understanding of what the other expects from him/ her. In such a situation, it becomes easy for them to fulfil each other’s expectations seamlessly and provide for each other without any misunderstandings or fights.

You may have the question in mind that there can be many such clauses; how is it feasible to incorporate them into a prenuptial agreement? Well, that is very true and is a fair concern, and therefore, it is advised to have certain important clauses in place regarding contentious topics to be able to draft a perfect prenuptial agreement, which is useful to both parties.

One such important clause can be regarding payment of compensation in case one of the spouses commits physical or mental cruelty and/ or domestic violence on the other. This is a very important safeguard to prevent such criminal acts within the folds of marriage. Especially in a country like India, where domestic violence is on the rise, it is important to have such a clause in place.

The amount of compensation can be fixed or made proportionate to a percentage of the income of the spouse during the commission of the act. Along with the fixed quantum, a minimum amount of compensation can also be fixed to protect the rights of the partner.

Another situation that I think couples can mention in their prenuptial agreements is clauses that mention circumstances under which they can remove themselves from each other’s vicinity. Spouses can write down specific circumstances as reasonable excuses, which, if the other partner does, they can remove themselves from each other’s company or residence or cohabitation.

Medical costs and visitations are very essential to couples, especially in India. Prenuptial agreements can mention the medical responsibilities of a spouse towards the other in terms of care, attendance and expenditures. Insurance coverage and monthly or annual medical coverage can also be determined in prenuptial agreements to prevent any sort of differences between spouses during medical emergencies.

Another prominent clause that is seen in most prenuptial agreements is lifestyle-related clauses. What are these clauses, and what kind of people use them primarily? These clauses are largely used by celebrities and famous people who have a particular kind of lifestyle to maintain due to their work or personal life.

By mentioning these specific lifestyle needs in a prenuptial agreement, couples can clear out what they can expect from each other so that their lives don’t clash with each other unnecessarily.

So these are the essential clauses when it comes to drafting or entering into a prenuptial agreement that spouses must keep in mind. If you want to go through a model draft of a prenuptial agreement, click here.

Comparing prenuptial agreements with other legal instruments in India

Many of you at this point may be thinking that even though prenuptial agreements are not legal in India, aren’t there any other legal instruments that resemble prenuptial agreements, and what do they do? Well, here’s a comparison of various kinds of legal instruments with prenuptial agreements.

Marriage contracts vs prenuptial agreements

Marriage contracts sound very similar to prenuptial agreements, but in essence, both these instruments are very different from each other. One may ask how.

Marriage contracts are agreements governing the rights and liabilities of parties related to finances, properties, alimony and more.

While prenuptial agreements deal primarily with asset and liability distribution and are entered into prior to marriage, marriage contracts focus on decision-making, rights and duties and responsibilities of both spouses in a marriage setting and can be entered into prior to marriage or after entering into a marriage or after its dissolution.

As we have already covered, prenuptial agreements emerged from a globalised world linked to capitalistic concerns, but marriage contracts emerged from customs and culture as well as traditions. For instance, while the Hindu law is against any kind of marriage contract, you will still find customary practices in certain rural or tribal communities. On the contrary, marriage contracts are very common in the Muslim religion.

The kabinnama document that has been mentioned above for quite some time is an excellent example of marriage contracts in the Muslim religion, wherein emotional elements related to family and responsibilities get a higher preference as compared to financial distributions and responsibilities.

Wills and trusts related to marriage.

After reading the heading, the first question that might come to your mind is how wills and trusts relate to marriage when they specifically deal with property. However, wills and trusts are primarily used as legal instruments for estate planning and for deciding how the assets of a person are divided after death. A prenuptial agreement, on the other hand, deals with financial distribution after divorce.

There are apparent differences between these legal instruments, but they still have certain commonalities in terms of their substance. One common feature we have described above is clauses related to children and their rights over property. Through a will or trust document, parents can secure the inheritance and claims of their child without any hassle or stress.

For example, Anton and Hannah decided to get married. In case of a prenuptial agreement, Anton can mention that his son from his previous marriage will get his Bungalow in Arizona as an inheritance, and that property will not be included in the marital fund in case of a divorce between Anton and Hannah. This agreement resembles clauses in wills and trusts that deal with the passing of property.

Children from previous marriages are at risk of being deprived of their claims to property shares, but wills and trusts can secure those rights without any trouble.

We see that in many divorce proceedings in India, where a will is a contested document, complementing the prenup in foreign countries, where they are contested to determine the rights of a child over their parents’ property. Well-drafted legal instruments of any kind can be utilised to protect rights and responsibilities in a marriage effectively.

Divorce settlements

Out of all the existing valid legal documents related to marriages in India, the ones that most closely resemble prenuptial agreements are divorce settlements. The primary difference between these two documents is that prenups are entered into before marriage, envisaging a situation of divorce, but divorce settlements are entered into after the breakdown of marriage, involving certain terms. Divorce settlements are negotiations made on the distribution of marital assets and funds, custody of a child, maintenance and alimony for the wife as well as the child.

It won’t be wrong for us to say that a divorce settlement is a postnuptial agreement, as it holds all the essential clauses of a prenuptial agreement but is entered into after marriage. As we make this comparison, it is also important for us to note that prenuptial agreements are not set in stone.

Prenuptial agreements can be contested in courts and especially in a country like India, where courts focus more on equitable distribution of property between the spouses and the best interest of the child, a prenuptial agreement will indefinitely fail to hold up to the standards of Indian judiciary and Indian culture unless they adapt well to the specificities of Indian society and norms.

Conclusion

In this article, we covered the various essential aspects of prenuptial agreements, their purpose, their origin, the benefits of entering into one and all essential clauses related to a prenuptial agreement. While Indian society is slowly and steadily becoming more accepting of foreign ideas and principles, the changes in the realm of marriage take more time than other social institutions.

Indian society is gradually becoming more progressive towards the idea of the dissolution of marriage and divorces in general, and with that growing change, prenuptial agreements are essential. It is only normal to expect a greater acceptance of prenuptial agreements, especially after Indian society has become more receptive towards the idea of divorce. While it is a great tool to protect the rights of spouses, it also raises several concerns related to India.

The Indian society and social fabric are very unique and have their own sets of challenges. Prenuptial agreements must be drafted keeping those particular circumstances in mind to be effective in Indian marriages. More awareness and social education related to divorce laws can be spread across both rural and urban areas in India to make the society ready to accept newer changes like prenuptial agreements.

As we have already studied, Muslim laws and certain customary laws have some sort of prenuptial agreements; Hindu law is not very receptive to them, but the way Hindu marriages are perceived by courts is slowly changing from just a sacrament to a contract, along with a sacrament. Therefore, there is hope that we will see a day when prenuptial agreements are more accepted by people to protect their rights and duties effectively without any hassle or stress.

Frequently Asked Questions (FAQS)

What are the main legal requirements of a prenuptial agreement in India?

Prenuptial agreements are not legal and valid in India, especially for Hindu marriages, but in the case of Muslim marriages, prenuptial agreements like kabinnama are considered valid. The only prerequisite for a valid Muslim prenuptial agreement, like a kabinnama, is that it must abide by the Muslim law and must not impose conditions that contravene it.

Can a prenuptial agreement be contested in India?

Prenuptial agreements are not valid in India, but generally, they are contested across India on various grounds like fraud, deceit, illegality, etc. In Christian marriages in India, prenuptial agreements can be considered and contested, too. For Muslim marriages, they can be contested because they are against Islamic law. For Hindu marriages, they can be contested for being against public policy.

Is the prenuptial agreement enforceable in India after marriage?

They are enforceable for Muslim marriages if they are not against Muslim law. They can be considered by the court for Christian marriages, but they are not enforceable when it comes to Hindu marriages in India, as they are against public policy and morality.

How does a prenuptial agreement protect assets and inheritance?

Prenuptial agreements can determine which funds will be considered marital funds and which will be considered separate funds. They can also be used to protect the inheritance rights of children from previous marriages.

Are prenuptial agreements only for the wealthy?

While it emerged as a tool for the wealthy to protect their assets, it eventually became accessible to all kinds of people to clear out responsibilities, rights and duties in a matrimonial setup without any hassle or stress.

References

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