MARITAL AGREEMENTS: THE FUTURE OF FAMILY LAWBY ANIL AND ANKIT MALHOTRA

MARITAL AGREEMENTS: THE FUTURE OF FAMILY LAW

BY ANIL* AND ANKIT MALHOTRA**

INTRODUCTION

Pre-nuptial agreements, though increasingly discussed in some urban circles, remain largely unrecognised and unenforceable in India. Indian matrimonial laws do not provide for these agreements under any existing statutes, including the Indian Code of Civil Procedure (CPC), 1908, or the Indian Contract Act (ICA), 1872. Additionally, there is no specific provision under any prevalent criminal laws in the Indian jurisdiction that recognises or governs the concept of pre-nuptial agreements. As a result, this concept is considered foreign or alien to the Indian legal system. Despite recent discussions around pre-nuptial agreements in metropolitan cities like Mumbai, Delhi, and Bangalore, practical guidance on this subject within the Indian legal context is still scarce. The lack of popularity of pre-nuptial agreements in India can be attributed to the country’s deep-rooted cultural and traditional views on marriage, which is often seen as a sacred, lifelong bond rather than a contractual arrangement. This view persists particularly in rural areas and smaller towns, where the concept of a pre-nuptial agreement remains virtually unheard of. In contrast, pre-nuptial agreements are seen in isolated instances in urban areas, largely among the elite or those with significant assets, seeking to protect their financial interests in the event of a marriage breakdown.

o   PRE-NUPTIAL AGREEMENTS ARE OPPOSED TO PUBLIC POLICY

Initially, Indian Courts were opposed to pre-nuptial agreements, primarily arguing that they conflicted with the Indian Contract Act, 1872, which requires contracts to have a lawful object and not be contrary to public policy. The judiciary viewed marriage as a sacrament under most personal laws, emphasising that any agreement that pre-determined the outcome of a marriage or its dissolution went against public policy. Indian Courts also contended that such agreements could undermine the sanctity of marriage and facilitate easy exits from the marital bond, which is contrary to the lifelong commitment expected under Indian personal laws. Furthermore, Courts believed that allowing pre-nuptial agreements would enable individuals to waive rights conferred upon them by personal laws, such as maintenance, alimony, and property division. For example, under Hindu law, marriage is not merely a contract but a sacrament, and rights arising from it, such as those relating to maintenance, are not to be pre-negotiated. Similarly, under Muslim personal law, marriage has a contractual element, but the provisions relating to dower, maintenance, and inheritance are governed by religious tenets that do not envisage pre-nuptial negotiations of marital obligations. Therefore, Courts were reluctant to enforce such agreements that they viewed as potentially undermining the personal laws' fundamental principles.

However, the landscape is slowly changing. With evolving societal norms and an increasing number of young professionals seeking more autonomy and control over their personal and financial lives, discussions around the potential validity and enforceability of pre-nuptial agreements in India have gained some momentum. Nonetheless, this shift is limited primarily to metropolitan areas, and there remains a significant lack of legal clarity and uniformity on the matter. While the Courts have started to entertain discussions on pre-nuptial agreements, they continue to be cautious, scrutinising the terms of these agreements to ensure they do not violate Indian public policy or the statutory rights provided under personal laws.

o   NOT SUPPORTED BY ANY STATUTORY PROVISIONS

Pre-nuptial agreements, though commonly used in various countries, remain largely unrecognised and unenforceable in India. This stems from the lack of statutory provisions in Indian law, such as the ICA, or the CPC, that explicitly address the legality of pre-nuptial contracts. Furthermore, Indian personal laws—be it Hindu, Muslim, or other faith-based matrimonial laws—do not accommodate or recognise the concept of pre-nuptial agreements. Consequently, pre-nuptial agreements are still considered foreign to the Indian legal system, with Courts viewing marriage as a sacred, lifelong bond rather than a contractual arrangement. India's deep-rooted cultural traditions, particularly in rural areas, emphasise marriage as a sacrament rather than a civil contract, leaving little room for pre-nuptial agreements. This cultural perception is reinforced by judicial reluctance to enforce such contracts due to concerns that they might undermine the sanctity of marriage, facilitating easy exits from the relationship, and conflicting with statutory protections related to alimony, maintenance, and property distribution. These views, however, are evolving in urban centres like Mumbai, Delhi, and Bangalore, where discussions around pre-nuptial agreements have gained traction, especially among wealthy individuals, seeking to safeguard their assets in case of marital breakdown.

Despite these changing societal dynamics, there is still limited guidance within Indian jurisprudence on the enforcement or validity of pre-nuptial agreements. Historically, Indian Courts have invalidated such agreements, deeming them contrary to public policy or incompatible with the rights conferred under personal laws. For example, under Hindu law, marriage is considered a sacrament with inherent obligations that cannot be pre-negotiated. Similarly, in Muslim law, while marriage has a contractual aspect, pre-nuptial agreements are often perceived as inconsistent with religious prescriptions governing maintenance and property rights. This chapter explores the legal challenges and evolving attitudes toward pre-nuptial agreements in India, focusing on how the judiciary has addressed this issue in the context of matrimonial disputes. By examining landmark cases and judicial interpretations, we aim to provide a comprehensive understanding of the current legal landscape surrounding pre-nuptial agreements and the prospects for their future recognition in Indian law.

o   PRINCIPLES FOR ACCEPTANCE OF MARITAL AGREEMENTS

Drawing from both cases, the Courts have established that if a pre-nuptial or marital agreement is to be considered valid, certain principles must be followed. Firstly, the agreement (a) must not be opposed to public policy, which, in the Indian context, includes preserving the sanctity and duties inherent in marriage. Agreements that allow spouses to circumvent these duties by opting for separate living arrangements in exchange for compensation can be seen as contrary to the cultural fabric of Indian society. Secondly, the agreement (b) should not violate the principles of natural justice. It should not disproportionately favour one spouse over the other or impose unfair conditions that would prevent either party from exercising their lawful rights. Thirdly, (c) the agreement must not be fraudulent in either its letter or spirit. If the agreement contains elements that deceive or mislead one party into waiving their legitimate rights, it cannot stand up to legal scrutiny. Lastly, the agreement (d) must recognise the rights of both parties fairly and equitably. This requirement ensures that both spouses are afforded mutual respect and consideration within the terms of the agreement.

ROLE OF THE INDIAN JUDICIARY

It is pertinent to mention that Article 142 of the Constitution of India vests the Supreme Court of India with vast inherent powers, and the same provides that the Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by the Parliament of India. By way of instance, it is pertinent to mention that the concept of irretrievable breakdown is not recognised as a ground for divorce under the existing matrimonial laws, but over the years, the Apex Court has been recognising irretrievable breakdown as a ground for divorce, by using its above-mentioned inherent powers in its wisdom in appropriate cases only. This is only when the matrimonial litigation reaches the last Court of Appeal. The point to be conveyed is that if the Apex Court, can recognise irretrievable breakdown as a ground for divorce in India, although not existing in the statute book, it well may be the case that the Apex Court, in the time to come, can adjudicate upon the validity/enforceability of pre-nuptial agreements or lay down suitable comprehensive guidelines on the subject in a suitable case. There is hardly any case law on the subject, in Indian jurisprudence or the Indian context.

o   NEW PERSPECTIVE ON PRE-NUPTIAL AGREEMENTS

In a judgment of Family Court, Delhi, in divorce petition HMA No. 181/2023, decided on October 3, 2023 [parties’ names withheld for confidentiality], a significant observation was made: "The time has come to make prenuptial agreements compulsory." The judge suggested that these agreements should be executed before an appointed authority after the parties undergo counselling about the potential risks that may cause a marriage to fail. Additionally, it was proposed that any breach of the agreement must be reported to the allegedly responsible party, with the understanding that failure to report such breaches would prevent the party from later claiming ignorance or hoping for improvement in the relationship. In the case at hand, the Court granted a no-fault divorce to the parties, who had been engaged in a legal battle for over seven years. The Court noted that since both parties had accused each other while seeking a divorce, it would be unjust to deny them a divorce based on fault. The Court emphasised that the divorce should be granted without assigning blame to either party for the breakdown of the marriage.

The Court also acknowledged that this judgment might be critically analysed, with some perceiving it as an effort by the Courts to avoid their duty to make decisions based on a thorough examination of evidence. However, the Court defended its stance by pointing to the overarching goal of the Family Courts Act, 1984, which is to facilitate settlements between parties and bring disputes to a close. The judge argued that if one spouse’s prayer was granted by finding the other guilty of a matrimonial offence, it would likely lead to further litigation and prolong the agony and harassment for both parties. Conversely, if neither party’s allegations were proven, the refusal to grant a divorce could result in, what the Court described as, "law-induced mental cruelty." The Court also ruled that both parents would remain the legal guardians of their daughter for school, academic, and extracurricular matters. Additionally, the Court directed the mother to ensure that the father's name was added to the daughter’s school records.

In India, we have a 3-tier structure of the Court system, starting from the District Court as the Court of first instance, with the High Court next in the hierarchy for each State, and then ultimately Supreme Court of India at New Delhi, which is the highest Court of Appeal in the Indian judicial legal system. The Supreme Court of India also has an original jurisdiction. It is important to mention that the validity of any pre-nuptial agreement, if questioned, will first have to be challenged in the Court of first instance, i.e., the District Court and not directly in the Supreme Court of India.  Whether or not the enforceability or challenge to any such pre-nuptial agreement will be successful or not, is a highly debatable issue in the Indian jurisdiction. If a valid marriage has been performed between the parties to a marriage, it must be duly registered in terms of the relevant matrimonial legislation, as applicable to the parties. Of course, there are no consequences on the martial regime in India, in the absence of a pre-nuptial agreement. This aspect of the matter is of immense concern in international marriages, where parties have substantial assets in multiple jurisdictions. Hence, the enforcement of pre-nuptial agreements in India is an uphill task.

CURRENT PRACTICES IN INDIA

It is important to mention that what is more prevalent in India is the practice of post-marriage settlement, in the event of divorce proceedings and allied matrimonial litigation, especially when criminal proceedings have been initiated by either of the parties to the marriage. Generally, these criminal proceedings would be for cruelty/desertion and/or demand for dowry on the part of the erring spouse, possibly arraying immediate family members as respondents in the said criminal litigation, which could well be from the family of either of the parties to the marriage.

o   SUPREME COURT ON SETTLEMENTS OF MATRIMONIAL DISPUTES

The Supreme Court in two recent meaningful decisions mentioned below has very aptly and tersely emphasised the need to encourage Court settlements in genuine matrimonial disputes. The Apex Court in the matter of BS Joshi v. State of Haryana[1] reiterated the law earlier laid down by the Apex Court itself in the matter of GV Rao v. LHV Prasad[2] as follows:

“The observations made by this Court, though in a slightly different context, in GV Rao v. LHV Prasad are very apt for determining the approach required to be kept in view in a matrimonial dispute by the Courts. It was said that there has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in the commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons that need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a Court of law where it takes years and years to conclude and in that process the parties lose their ‘young’ days in chasing their “cases” in different Courts.”

Building upon these principles, subsequent cases have continued to highlight the importance of settlements in matrimonial disputes, especially when criminal charges have been filed. In K. Srinivas Rao v. D.A. Deepa[3], the Supreme Court further emphasised that the pursuit of criminal proceedings under Section 498A of the Indian Penal Code, 1860 [Section 85 of the Bharatiya Nyaya Sanhita, 2023] might be futile if both parties have reached a settlement. The Court pointed out that matrimonial disputes are deeply personal and often entangled with emotions, which necessitates a more reconciliatory approach, rather than prolonged litigation. The judgment reinforced that Courts should prioritise settlements that dissolve animosity and restore peace between the parties. In Gian Singh v. State of Punjab[4], the Supreme Court addressed the issue of quashing criminal proceedings when a mutual settlement is reached in matrimonial disputes. The Court held that under Section 482 of the Code of Criminal Procedure, 1973 [Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023], Courts possess the inherent power to quash criminal proceedings, particularly in personal matters where the parties have genuinely settled their differences. This ruling highlighted that reconciliation and peace between the parties should be encouraged over continued litigation, which often results in further hostility and stress.

Similarly, in Narinder Singh & Ors. v. State of Punjab & Anr.[5], the Court laid out detailed guidelines for quashing criminal proceedings upon reaching a settlement in matrimonial cases. The Court noted that even in non-compoundable offences, such as those under Section 498A of the IPC [Section 85 of the BNS], the power to quash proceedings could be exercised if the dispute is purely personal and the settlement is genuine. This decision reinforced the idea that reconciliation and settlement should be prioritised, recognising that matrimonial conflicts are often best resolved outside the adversarial framework of criminal litigation. While Arnesh Kumar v. State of Bihar[6] did not directly deal with settlements, it is highly relevant in the context of criminal proceedings in matrimonial disputes. The Supreme Court, in this case, provided guidelines to prevent the misuse of Section 498A of the IPC [Section 85 of the BNS], where arrests were made without adequate scrutiny. The Court pointed out that many matrimonial disputes often become entangled in criminal cases that escalate conflict. This judgment emphasised the need for caution in dealing with such cases, thus indirectly supporting the approach of resolving disputes through negotiation and settlement rather than through punitive legal action.

Furthermore, in Rajesh Sharma & Ors. v. State of U.P.[7], Supreme Court introduced additional safeguards against the misuse of Section 498A [Section 85 of the BNS] in matrimonial cases. The Supreme Court recommended the establishment of Family Welfare Committees to investigate allegations before proceeding with arrests. The Court recognised that matrimonial disputes require sensitive handling and that a settlement-oriented approach could prevent unnecessary criminal litigation from aggravating the situation. These cases collectively demonstrate the judiciary’s stance on promoting settlements in matrimonial disputes, especially where criminal proceedings are involved. The Supreme Court, through its decisions in B.S. Joshi, G.V. Rao, and K. Srinivas Rao, has laid the groundwork for a more reconciliatory approach to handling such disputes. By acknowledging the personal and emotional nature of matrimonial conflicts, the Courts have encouraged settlements that aim to end the disputes amicably. The judiciary also acknowledges the importance of ensuring that settlements are genuine and voluntary. Courts assess the circumstances to verify that one party is not coercing the other into a settlement that would undermine their rights. The rulings in these cases collectively underscore that while criminal proceedings may sometimes be necessary, they are not always the best course for resolving matrimonial disputes. Encouraging settlements helps preserve harmony and reduces the burden on the legal system, allowing couples to resolve their issues in a more dignified and less adversarial manner.

SOCIETAL AND CULTURAL CONSIDERATIONS

The point to be conveyed is that there is far greater emphasis in the Indian context on settling post-marriage matrimonial disputes in the event of divorce-related litigation, rather than focusing on pre-nuptial agreements. Traditionally, Indian society views marriage as a sacramental union and not as a contractual relationship. However, media reports in recent years indicate that a miniscule percentage of affluent urban couples have at times opted for executing pre-nuptial agreements. Typically, in Indian society at first blush, even the thought of exercising a pre-nuptial agreement would seem abhorrent, rather than face stiff resistance from family members. This is because when people marry in India, they do not readily anticipate divorce between the couple. Although, it is a matter of fact that divorce is on the rise in urban India, and even in smaller cities. It is common knowledge that, in some higher sections of Indian society, divorce is not considered to be stigmatic.

o   LEGITIMACY OF FAMILY SETTLEMENT

A case questioning the legitimacy of a detailed family settlement memorandum during ongoing divorce proceedings was brought before the Supreme Court in Ravi Singhal v. Manali Singhal[8]. The appellant argued that an interim maintenance order included in the settlement, which was agreed upon under special circumstances, was invalid and contrary to public policy. The appellant cited Section 25 of the Hindu Marriage Act, 1955, which mentions agreements between parties concerning the amount of maintenance. Additionally, the appellant claimed financial incapacity. On the other side, the respondent’s counsel argued that a family settlement was permissible and did not conflict with public policy. In another case, the Calcutta High Court dealt with a prenuptial agreement that restricted the husband's rights under Hindu law. The Court ruled that the agreement was in violation of India’s public policy, as demonstrated in Tekait Mon Mohini Jemadai v. Basanata Kumar Singh[9]. Hence, it becomes manifest from the above-mentioned decision that the concerns as to the memorandum of settlement did find favour with the Supreme  Court, and the Judges without expressing any opinion on the merits of the matter, remanded back the matter to the single Judge as a Court of first instance for a detailed consideration of the matter.

 EVOLUTION OF PRECEDENTS

Over time, Indian Courts have gradually begun to recognise the validity of prenuptial agreements, although this acceptance is not unconditional. The enforceability of these agreements depends on a careful review of the purpose, intent, and specific terms outlined within them. While prenuptial agreements are not yet universally upheld in all jurisdictions or cases, there has been a noticeable shift towards their acceptance, as evidenced by the evolution of case law in this area. One of the earliest instances where a prenuptial agreement was judicially acknowledged occurred in the case of Pran Mohan Das v. Hari Mohan Das[10], decided by the Calcutta High Court. The Court upheld the agreement based on the doctrine of "part-performance of a contract," which prevented the plaintiff from reclaiming property as specified in the agreement. The Court reasoned that since the agreement was not a marriage brokerage contract, it did not conflict with public policy. This case set a precedent that prenuptial agreements could be upheld, provided they did not violate public policy or statutory law.

Similarly, in the case of Mohd. Khan v. Mst. Shahmali[11], the Jammu and Kashmir High Court dealt with a prenuptial agreement where the husband had agreed to live as a khana damad (a son-in-law residing in his wife's father's home), with the condition that if he left, it would trigger a divorce and require him to repay wedding expenses. After abandoning his obligations for four years and then returning, the husband was asked to fulfil his financial commitments as per the agreement. He challenged the validity of the agreement, arguing that it was contrary to Muslim law. The Court, however, upheld the agreement, noting that the practice of khana damad was customary and that the husband had failed to meet his responsibilities.

This ruling reinforced the notion that prenuptial agreements can be considered valid if they align with societal practices and do not contravene religious or statutory laws. Similarly, the State of Gujarat has seen practices of Maitri Karar or friendship contracts, which was a traditional contract system used to legitimise a relationship that was akin to marriage. It was commonly used between a married man and his partner to avoid the offence of bigamy. Though it was never legally enforceable, it only provided some degree of security to unmarried women in a relationship. The practice originated in the 1970s as a legal way for urban men to live with women other than their wives. It is similar to a live-in relationship which is a custom of nata pratha (relationship practice) which is practiced in the States of Rajasthan and Madhya Pradesh.  

o   NEW PERSPECTIVE IN FAMILY COURTS

A Family Court in Mumbai granted divorce based on a prenuptial agreement executed between the spouses (parties’ names withheld) on July 22, 2016. In this case, the husband and wife had signed a prenuptial agreement before their marriage, outlining the conditions under which they would separate if their marriage deteriorated. The Court highlighted that both parties were mature individuals who had anticipated the possibility of separation and had mutually agreed on the terms in advance. Additionally, the Court found that the wife and her mother had subjected the husband to cruelty, and the prenuptial agreement had been drafted to prevent future legal disputes. The Court admitted the agreement as valid, citing the FCA, which allows such documents to aid in case resolution. This case illustrates the growing willingness of Courts to consider prenuptial agreements, especially when they are clear and mutually agreed upon by both parties.

RELEVANCE OF PRENUPTIAL AGREEMENTS IN CONTEMPORARY INDIA

Although prenuptial agreements are still relatively new in India, their relevance is increasing for several reasons. As marital relationships and financial concerns become more complex, prenuptial agreements offer couples a way to protect their interests and minimise potential conflicts. Here are key reasons why prenuptial agreements are gaining significance:

o   REASONS FOR ACCEPTANCE

·         Asset Protection: Prenuptial agreements are crucial for safeguarding personal assets brought into a marriage, particularly for individuals with substantial pre-existing assets such as family inheritances, businesses, or valuable properties. These agreements ensure that such assets remain protected from division in the event of a divorce.

·         Changing Marital Dynamics: As both spouses often contribute financially to the household, the dynamics of marriage are shifting. Prenuptial agreements offer a framework to address these changing roles, ensuring a fair distribution of wealth and resources between spouses. They help establish clear terms for managing assets and financial contributions.

·         Clarity and Transparency: One of the primary benefits of a prenuptial agreement is the transparency it fosters regarding financial matters. By discussing and setting clear expectations before marriage, couples can avoid misunderstandings and conflicts later on. Prenuptial agreements facilitate open communication about financial responsibilities, reducing the likelihood of disputes during the marriage.

·         Financial Independence: Prenuptial agreements allow both spouses to maintain financial autonomy. They establish guidelines for managing finances during the marriage, including income, expenses, and assets, thereby preserving each party's financial independence. This is particularly important for individuals who wish to retain control over their finances post-marriage.

·         Alimony and Maintenance: Prenuptial agreements can specify terms for alimony or spousal maintenance in the event of a divorce, preventing lengthy and costly legal battles. By agreeing on financial support in advance, couples can avoid contentious disputes over maintenance or alimony if the marriage ends.

·         Protection of Children’s Interests: In cases of second marriages, prenuptial agreements can protect the financial interests of children from previous relationships. These agreements ensure that specific assets are preserved for these children, safeguarding their inheritance and financial security.

CONCLUSION

The growing acceptance of prenuptial agreements in India reflects the judiciary's increasing recognition of their importance, particularly in protecting financial interests and ensuring clarity in marital relationships. While these agreements are not yet universally accepted or regulated by specific statutes, Indian Courts have shown a greater willingness to consider them on a case-by-case basis, provided they do not violate public policy, religious laws, or statutory provisions. As societal norms and economic realities continue to evolve, prenuptial agreements are likely to become a more significant tool for couples looking to protect their financial and personal interests in marriage.

The concept of pre-nuptial agreements does not have any statutory recognition under the Indian legal system. As of now, the provisions of the Protection of Women and Domestic Violence Act, 2005 statutorily recognise the concept of domestic relationship by the decision of the Supreme Court of India in the case of D. Velusamy v. D. Patchaiammal[12]. In sum, in the present day and age, the new India in the twenty-first century is not ready to usher, let alone to accept diluting the traditional sacramental notion of marriage into a somewhat commercially sounding agreement called prenuptial agreements.

However, like the foreign international perspective, it is believed that it is perhaps wiser to accept the concept of a prenuptial agreement in India that clearly states a fair division of property, personal possessions, and financial assets than having the parties fighting over these small issues for years after the filing of a divorce. The larger issue that looms in the Indian setup is the fact that any pre-nuptial or post-nuptial agreements/settlements could well be struck down by the Courts on the grounds of public policy, depending on the facts and circumstances on a case-to-case basis. However, purely in the Indian context, the enforcement of pre-nuptial agreements may prove to be an effective check on some false or implicating prosecutions by some unethical women who misuse section 498A of the IPC [Section 85 of the BNS], or the provisions of the DVA to intimidate or to extort money by unfair means.

*Author, a practising Senior Advocate, has ten books pertaining to issues of private international law. He can be reached at anilmalhotra1960@gmail.com. www.anilmalhotra.co.in

Advocate, Malhotra & Malhotra Associates, India.

LL.M [London]&Felix Scholar, School of Oriental &African Studies, University of London, London.

Email: ankitmalhotra97@gmail.com ,

Website :https://www.ankitmalhotra.co.in

[1] 2003 (4) SCC 675, para 13, at page 682.

[2] 2000 (3) SCC 693, para 12, at page 698.

[3] (2013) 5 SCC 226.

[4] (2012) 10 SCC 303.

[5] (2014) 6 SCC 466.

[6] (2014) 8 SCC 273.

[7] (2017) 10 SCC 472.

[8] 2001 (8) SCC 1.

[9] (1901) ILR 28 Cal 751.

[10] AIR 1925 Cal 856.

[11] AIR 1972 J&K 8.

[12] AIR 2011 SC 479.