
In the Indian context, the legal approach towards matrimonial disputes has been focused on divorce-oriented litigation, rather than prenuptial deeds. However, a recent Supreme Court decision shows a different way.
IN a decision rendered on July 15, the Supreme Court, accepting a tripartite settlement deed executed between a woman, her husband and his mother through mediation, permitted parties to part ways upon a one-time payment of Rs 45 lakh to the wife with the condition that both would not seek divorce on any ground. The couple married for 30 years agreed to withdraw all their pending litigation and the wife agreed not to cause any disturbance or invade the privacy of her husband and his 83-year-old mother living in their household property.
The sum of Rs 45 lakh paid in full and final settlement to the wife was towards all her financial claims. Both parties, living separately since 2009, agreed that they shall have nothing to do with each other's lives and will not undergo any divorce proceedings. The wife would also not claim restitution of conjugal rights or rights of residence in the household.
However, in the event of remarriage of the husband, the agreement shall stand terminated and the wife would be entitled to revive her claim for maintenance or alimony for the present and future, since the sum of Rs 45 lakh shall not be considered as an amount towards dissolution of marriage and payment of permanent alimony.
The court accepting the deed and the undertakings of the parties, disposed of the matter and permitted the parties to file the same before all courts where litigation was pending with liberty to invoke the provisions of the Contempt of Courts Act, 1971, upon breach if any.
Position of law
Under the Hindu family laws, where marriage is considered a sacrament and not a contract, prenuptial agreements do not find any recognition under existing matrimonial legislation or under other civil codified laws. Hence, premarital settlements between Hindus are alien to the present legal system.
Regardless, if there be any prenuptial settlement, it would be tested like any other contract for its validity. Essentially, it should not be opposed to public policy, must not violate principles of natural justice, shall not be fraudulent, and must recognise rights of both the parties as also should be executed freely, voluntarily, without coercion and upon full disclosure of all relevant facts. As, traditionally, breakups are not discussed before marriage, there seems to be no reported decision testing the validity of a prenuptial termination agreement.
Changing social milieu
In a fast evolving society of urban set-ups and escalating cross-border matrimonial unions, divorces settled through mutual consent petitions to avoid ugly, protracted and harmful litigations are being increasingly resorted to through the process of alternative dispute resolution and mediation centres now available in all courts in India.
Invoking of punitive criminal proceedings against immediate family members and parents of spouses upon the death of a matrimonial relationship often results in the entire family being implicated on trumped up charges as retribution to settle scores.
Easy outlets to do so under the Indian Penal Code and the Domestic Violence Act often result in harassment to the parties, even though they may have no apparent role attributed to them.
Likewise, adequate protection and financial support to an abandoned spouse needs to be secured in advance to avoid flights of fancy, leaving a hapless partner with nothing to survive on, if a marriage goes sour. Securing protection for children from inter-parental child removal is another dimension of breaking marriages when abduction of children is resorted to by parents to settle egos.
Such facets of life of new generations makes the mind ponder to evolve solutions which as of now do not exist in the statute book but are now necessitated with the advent of time.
Existing law
As of now, mutual consent is the most resorted to method for divorce if parties are principally in agreement on the terms and conditions of termination of marriage, which in itself reflects acceptable breakdown of marriage. However, Parliament is looking at defining and bringing in irretrievable breakdown of marriage as an additional ground for divorce, through the process of legislation may be time consuming.
Though irretrievable breakdown of marriage is not recognised as a ground of divorce under existing matrimonial laws, the apex court, in exercise of its vast powers under Article 142 of the Constitution, may pass such decree or make such order as it is necessary for doing complete justice in any cause or matter pending before it.
New perspective
The judgment of July 15 opens a new window. It is in this breath that the need for prenuptial agreements needs a fresh thought with a new outlook. It comes at a time when surrogacy agreements are entered upon freely and have become acceptable in society. Thus, if the concept of a premarital settlement finds judicial acceptance and ultimate legislative sanction, matrimonial terms can be settled in advance optionally and alternatively to those who wish to do so. By no means would this be mandatory to offend those who do not wish to think of marital breakups before marriage by considering it as inauspicious or uneventful.
Without disturbing sentiments of traditional mindsets, the thought process can possibly relax drawing up of pre-marriage agreements where double-income independent spouses are comfortable in such mutual understandings.
Protection of spouses and avoidance of inter-parental child removal are immediate benefits of it. Beneficiaries would include a large segment of the non-resident Indian (NRI) population who either marry foreign spouses or relocate to overseas jurisdictions and need written understandings for mutual protection and easy implementation by courts in alien jurisdictions. The clash of parallel matrimonial disputes in Indian and foreign courts can be avoided to a large extent by following this system.
The law does not forbid spouses to agree as to how they should live and conduct themselves as husband and wife, when they would consummate their marriage and how they would conduct themselves to each other. It is equally important that due respect should be given for adult autonomy, subject to proper safeguards and which could be tested by judicial discretion, when the need arises.
The fact of the matter remains that any matrimonial agreement between a husband and a wife should not be illegal, immoral or opposed to any public policy.
The overhanging safeguard of the premarital settlement being adopted as a fair, free and just settlement will always be omnipotent. By no means or standard, it should be used as an instrument of oppression to take away rights of spouses which are guaranteed under existing laws meant to secure relief.
The need for evolving the jurisprudence to develop a positive thought process for creating such friendly methods would require an educative process to familiarise the advantages of such a concept while also clearly identifying its negative traits, if any.
The chaff should be separated from the grain to enjoy the dough which has to be kneaded and blended nicely over a long period of time to be consumed to become acceptable as a welcome change.
The traditional and sacramental notion of marriage must be gently flavoured with a commercially sounding phrase of prenuptial agreements, which is not to be viewed as an announcement of a breakup of a marriage, even before it is solemnised.
The path has to be tread carefully and slowly while administering the change. Changing times require that amicable matrimonial settlements be arrived at by dispute resolution which can be aided and assisted if the parameters are penned down in advance to benefit the parties concerned.
How prenuptial pacts may help
Matrimonial terms can be settled in advance.
Without disturbing traditional mindsets, the thought process can relax drawing up of pre-marriage agreements where spouses are comfortable in such mutual understandings.
Protection of spouses and avoidance of inter-parental child removal are immediate benefits.
Beneficiaries would include NRIs who marry foreign spouses or relocate to overseas jurisdictions and need written understandings for mutual protection and easy implementation by courts in alien jurisdictions.
Time is of essence
In a prolonged messy litigation, the court may bury the hatchet in the facts and circumstances of a case under its inherent jurisdiction. The court in BS Joshi Vs. State of Haryana (2003) 4 Supreme Court Cases 675 and GV Rao Vs. LHV Prasad (2000) 3 Supreme Court Cases 693, has very eloquently emphasised the need to encourage court settlements in matrimonial disputes.
It concluded "…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." Therefore, there is far greater emphasis in the Indian context to settle post-marriage matrimonial disputes in the event of divorce oriented litigation, rather than focusing on prenuptial agreements. Law looks at the cure and not the remedy to prevent the problems.
Comments