Chains do not hold a marriage together, it is threads, hundreds of tiny threads which sew people together through the years. In India, marriage is considered as an auspicious ceremony were not only two people but their families unite to form a relationship that lasts forever. Indian marriages are believed to be made in heaven and its breakdown is considered as a misfortune. Prenuptial or postnuptial agreements are related to marriages means an agreement entered into before marriage.
In western countries like Italy, Canada these agreements are valid and entered into between two individuals before marriage. But in India unlike western world marriages are considered as sacred so these prenups are like aliens to Indian society. People believe that such an agreement will bring the marriage to its end. Unlike Muslim marriages and to some extent Christian marriages also Indian marriages are not legal contracts but civil contracts for sure in addition to being a sacrament stated in Bhagwati Saran v. Parmeshwari Nandar Singh.
Thus in the present time where the ratio of love marriages on arrange marriages are growing in which both the spouse are financially independent but needs to be insured against any ambiguity, prenups can be a good option for them. Prenups have many benefits like
- It provides full disclosure of the assets.
- Can prevent each other’s debt.
- Ensures support from spouse for monthly maintenance /alimony.
- Protects child future in case of separation.
- Couples are saved from legal hassles, bitter negotiation regarding financial matters in case of breakdown.
- Clarifies the custodial rights of children.
- Protection of husband against false prosecution or allegations by the wife.
While entering into a partnership in a business we sign a contract, the prenups are also an agreement in which spouses are the partners for life in a marriage. But with pros cons are also attached as there is a very diverse system of Indian matrimonial laws i.e., marriages are covered by Indian Marriage Act, 1955, and due to absence of uniform civil code each religion has its laws. Presently only Goan law recognizes such agreements. The courts in India held prenups to be unenforceable under section.23 of the Indian Contract Act, 1872 as it contradicts personal laws and thus is opposed to public policy.
Another view regarding prenups says that it can be considered under section. 10 of the Indian Contract Act which says that parties should be competent to contract, the agreement must be made with free consent, there should be a lawful consideration and lawful object. The third view is that it can be legally binding under the Special Marriage Act, 1954 as it posses all the necessary documents for marriages to be registered. But the original view accepted was these prenups are not legally enforceable in Indian courts. For instance in cases like Krishna Alyar v.Balammal and CIT v. Shanti Meattle where courts refused to uphold the validity and were held unenforceable the agreement between the parties. But in all cases, prenups are devalued like in Sunita Devendra Deshprabhu v. Sita Devendra Deshprabhu where High Court of Bombay at Goa considered the prenups agreement to decide the separation of assets among parties.
In the end, as western culture is invading our Indian society, women and children are becoming more aware of their rights and liberties these prenups can be considered as a better option to decrease the chaos between spouses, their families, and kids. These prenups should not be seen as a taboo. People here have very different thoughts as for the marriage with a stranger is good but love marriage is like an evil. People should be made aware of these agreements as they are not made to end the marriage but to protect the man and wife from any misconduct or ambiguity in the future. These prenups can do wonders in NRI marriages where females were taken to abroad after marriage and all kinds of violence which are practiced against them. Its time for the government to make laws to lower the chaos after separation of couples as well as to save time and money which is consumed when cases were filed against. Furthermore, if man and wife want to get separated they can be separated smoothly without any difficulties.
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