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This Article is authored by Advocate Anil Malhotra.


In an inimitable decision rendered on 15 July, Supreme Court, accepting a tripartite settlement deed executed between wife, husband and his mother through mediation, permitted parties to part ways upon a one time payment of Rs.45 lacs to wife with condition that both would not seek divorce on any ground. Couple married for 30 years agreed to withdraw all their pending litigations and wife agreed not to cause any disturbance or invade privacy of her husband and his 83 year old mother living in their household property. Sum of Rs.45 lacs paid in full and final settlement to 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. Wife would also not claim restitution of conjugal rights or rights of residence in household. However, in event of remarriage of husband, agreement shall stand terminated and wife would be entitled to revive her claim maintenance or alimony for present and future, since sum of Rs.45 lacs shall not be considered as an amount towards dissolution of marriage and payment of permanent alimony. Apex Court accepting Settlement Deed and Undertakings of parties, disposed off matter and permitted parties to file same before all Courts where litigations were pending with liberty to invoke provisions of Contempt of Courts Act, 1971 upon breach if any.


Under Hindu family laws where marriage is considered a sacrament and not a contract, pre-nuptial agreements do not find any recognition under existing matrimonial legislation or under other civil codified laws. Hence, pre-marital settlements between Hindus are alien to present legal system. Regardless, if there be any pre-nuptial 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 parties as also should be executed freely, voluntarily, without coercion and upon full disclosure of all relevant facts. As, traditionally, break-ups are not discussed before marriages, there seems to be no reported decision testing validity of a pre-nuptial termination agreement.


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 process of alternative dispute resolution and mediation centres now available in all Courts in India. Furthermore, invoking of punitive criminal proceedings against immediate family members and parents of spouses upon death of a matrimonial relationship often results in entire family being implicated on trumped up charges as retribution to settle scores. Easy outlets to do so under Indian Penal Code and Domestic Violence Act often result in harassment to parties, even though they may have no 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 mind ponder to evolve solutions which as of now do not exist in statute book but are now necessitated with advent of time.


As of now, mutual consent is most resorted to method for divorce if parties are principally in agreement on 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 a additional ground for divorce, through process of legislation may be time consuming. Though, irretrievable breakdown of marriage is not recognised as a ground of divorce under existing matrimonial laws, Apex Court, in exercise of its vast powers under Article 142 of Constitution of India may pass such decree or make such order as it is necessary for doing complete justice in any cause or matter pending before it. Hence, in a prolonged messy litigation, Apex Court may bury hatchet in facts and circumstances of a case under its inherent jurisdiction.


Apex Court Judgment of July 15 opens a new window. It is in this breath that need for pre-nuptial 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 concept of a pre-marital 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, emotions of feelings of traditional mindsets, 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 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. Clash of parallel matrimonial disputes in Indian and foreign courts can easily be avoided by it.


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