This Article is written by Sneha Solanki, pursuing LLM from Faculty of Law, University of Delhi
Abstract
Law is a reflection of society. In the social structure of society, the basic unit of society is family and this notion of family is based upon the very institution of marriage. The objective of institution of marriage is to ensure the stability and order in society. The institution of marriage has become a trademark of a civilised society.
But time never remains same and society also changes with the time and this dynamism also affects the very institution of marriage. In this scenario, a new concept is developing as a pre-nuptial agreement, which is an agreement done before marriage. In various religions the marriage is a sacrosanct institution. Hence, this concept of pre-nuptial agreement is very much contradictory to the traditional norms of institution of marriage. But as we know, by the time the modernisation, constitutionalism, issues of the rights of equality, privacy etc. being evolved and these factors have not only affect and but also hits upon the foundation of institution of marriage which is molding and modifying in a new modern or non-conventional terms.
Introduction
The concept of Pre-Nuptial Agreement is flourishing in western countries but in India, it is still a concept of criticism and suspicion. Mostly in the eyes of adherers of traditionalistic views. But, there are many possibilities and capabilities to make applicable the pre-nuptial agreement with legal backing and enforceable by the court subject to conditions of Contract Act.
It has its own benefits and demerits, but we need to absorb the benefits from it to make our marital laws up to date and try to drain out its demerits to protect the foundations of marriage and social order. But it is not a cakewalk as it looks like. There are many complexities of various religious and personal laws, also there is no uniform civil code despite various landmark judgments of apex court of India. There are also doubts in the mind of the people that the pre-nuptial agreement could become a bane to institution of marriages and makes marriages highly prone to divorce. But we need to clarify all these complexities. As law is for the people governed according to their need based system until these needs fulfils from that system or institution, is fine, but as the needs changes the law must also change.
The Concept of Pre-Nuptial Agreement
The pre-nuptial agreement in simple words means that the agreement done between the spouses before marriage regarding the terms and conditions of the marriage. It is a western concept where civil laws are very specific, uniform and strong. The two major persons can enter into an agreement which consists of terms and conditions of their marriage and that agreement like a contract, would be enforceable by law and in case of breach, any aggrieved party can seek remedy through the court.
History
If we search out the very earlier history of the pre-marriage agreement, the first instance occurred 2,000 years ago in an ancient Hebrew Marriage called Ketubah. Ketubah is a Jewish marriage contract. In this document the rights and responsibilities of the groom are given and that is signed by two witnesses. In India, there is no such kind of instance but a glimpse of it can be seen in the story of marriage of Maa Ganga and Shantanu, in Mahabharta, where in Maa Ganga put some major conditions for the marriage. Likewise, in Islamic Law the concept of Khana-damad is somewhere has shadow of the prenups. If the husband firstly agreed to be a Khana-damad means agreed to live in wife’s native house and after marriage if he refused to do so, then he must pay the sum expended towards the marriage. So the non -fulfilment of the conditions leads to divorce. But in Indian Culture there is no specific legal kind of agreement between the spouses before marriage.
As the prenups is a western concept in the legal sense, so that the prenuptial agreement solidified in legal sense in 1848, in New York through the Married Women’s Property Act. Under section 4 of the Act, all contracts made between persons in contemplation of marriage shall remain in full force after marriage takes place. The British Parliament passed the Act of 1882. The new concept of civil partnership is also emerging in European countries. The British Government in 2004 passed the civil partnership act, 2004 where two eligible persons may enter in to civil partnership without having status of marriage by registration. In USA, some states which recognises the domestic partnership agreement through statutes.
Possibility of Legalization of Pre-Nuptial Agreement in India
In India, although it is a noble concept in a legal scenario. But with the increasing awareness regarding women’s rights, human rights, civil rights, and especially the right to privacy, the possibility of the codification of the prenups agreement-related law is increasing. There is also the standpoint of the supreme court about the right to privacy which is indirectly linked with the validity of the pre-nuptial agreement. This agreement has a wide range of content but it especially related to the division of assets and property and specified the rights of the spouses.
Hindrances before the Possibility of Pre-Nuptial Agreement in India.
- BAD IMPACT ON SANCTITY OF MARRIAGE by the flourishing of the pre-nuptial agreement in India. In India, the institution of marriage is a very kind of a pious ritual not only in the religion but also for society. So that most of the religion depicts that the marriage is sacrosanct which is made by the God. And this pious bond is not compared by any agreement which depicts the situation of divorce and it is in Indian society conceived as a bad omen and against the rituals of the sanctity of the marriage.
- DANGER OF THE SOCIAL STABILITY many conceptions arise in a part of the society that the pre-nuptial agreement increases the possibility of the break down of the marriage, because of the pre-decided conditions and both spouses know very well the pros and cons of the divorce and if in the situation any spouse can depart with the marriage easily. So that it creates a more alienated society and a strong family institution in India may suffer which creates more other destructive consequences in the society.
- UNIFORM CIVIL CODE under Article 44 of the Indian constitution has not in force yet because of a huge diversity in the personal laws which makes uniformity in civil or family laws no less than impossible. Therefore, in India, the law on marriage is mostly based on the personal laws of the respective religion. Although many personal laws are codified in India like Hindu laws, Muslim laws, Parsi law, but these laws codified are only codification their respective laws not there is uniformity in the marriage laws, inheritance laws, divorce laws, etc. the personal laws cannot be challenged in the court of law whether relating to the issues of marriage, or divorce. As also the validity cannot be challenged Article 13 of the constitution. State of Bombay vs. Narasu Appa Mali AIR 1952 Bom 84, Justice Gajendragadkar observed, “the framers of the constitution wanted to leave the personal laws outside the ambit of part III of the constitution…”
- LEGAL DISABILITY is also a big hindrance in the growth of the pre-nuptial agreement concept. In the actual scenario, there is a lack of legal sanctity towards the validity and enforceability of the pre-nuptial agreement. There is no specific law to enforce the agreement so that the judiciary has not given any concrete position in the jurisprudence of the pre-nuptial agreement. The judiciary in India has an indeterminate position on the issue and somewhere it sees the marriage as the pious institution so that it is very reluctant towards the validity of the pre-nuptial agreement.
- EFFECTS ON THE RIGHTS OF WOMEN AND CHILDREN must be taken into consideration in the context of the pre-nuptial agreement. In India, although the position of women is strengthening, the actual position is far away to make both genders in the level of equality. This agreement becomes a tool for the husbands to exploit their wives. As the women are still in a weaker agency, they are easily ditched by their husband, and by the twisted and biased provisions husband can easily take the separation or divorce from his wife without any fault on the part of the wife. By this bad consequence, the children would be a great sufferer and their future might be at stake due to separation between the parents.
Enforceability of The Pre-Nuptial Agreement in India
Despite all these hindrances, the concept of the pre-nuptial agreement is still flourishing in India not only because of awareness of the legal rights but also the impact of western culture. We can observe many legal and social elements which create the possibility in India. Some are mentioned here: –
1. PERSONAL LAWS has also somewhere directly or indirectly the concept of uncalled agreement in some other forms. In Hindu laws, although marriage is pious and has a great sanctity. It has the concept of the pious obligations so that there is no concept of dissolubility and it has no contractual obligation but an indissoluble holy union which is not manufactured but a holy union, makes in heaven. But in modern scenarios, many judgments considered the agreement as valid with applying the other legal provisions. As in the case of Commissioner of Income Tax v. Mansukhrai More, the High Court of Calcutta held that the transfer of property as per the prenuptial agreement for the accomplishment of commitments undertaken was justified and did not attract S. 16(3) of the Indian Income Tax Act, 1922.
The institution of marriage in Islam is contractual in nature. There are many trending scenarios in the Islamic personal laws in the context of the pre-nuptial agreement, especially from the standpoint of the judiciary. In the case Saifuddin Sekh v. Soneka Bibi, the plaintiff-respondent wife dissolved the marriage as the husband could not fulfill the terms of kabinnama. As per the prenuptial agreement, the husband was barred from bringing any of his former two wives to stay with him without the consent of the plaintiff’s wife and if he did so, the plaintiff wife would be entitled to divorce him. Here, the agreement neither put any impediment to enjoying conjugal life on the other two wives nor obstructed the husband to hold the relationship with the other wives. It only said that he had to take consent from her before bringing any of his former wives to reside with him. Therefore, according to the Gauhati High Court, the agreement was not effected by S.23 of the Indian Contract Act, 1872 as it was not opposed to public policy. Likewise, these above examples in other personal laws like Parsi, Jewish, and Christian has somewhere the concept of the pre-nuptial agreement been in existence.
2. RIGHT TO PRIVACY under Article 21 is also opening wide rights for persons not only in public paragraph state context but also in the civil and personal rights arena. A recent judgment of the supreme court in the case of Puttuswamy vs. Union of India declared the right to privacy is the fundamental right under Article 21 of the Indian constitution. If we interpret the legal sanctity of the pre-nuptial agreement based on this decision, there would be a new aspect for the pre-nuptial agreement would be opened. Because the marriage and the persons whose decision towards it, is private and one is free to make the decision about his life and can put the terms and conditions in the form of the agreement.
3. INDIAN CONTRACT ACT,1872 in some ways gives legal backing to the valid prenuptial agreement. In various case laws, the judiciary applies the provisions of the contract act to examine the validity of the agreement, and only if the agreement fulfills the conditions of a valid contract under section 10, the pre-nuptial agreement would be valid. Firstly, the agreement must be between the legally major parties, there must be free consent and the consideration must not be against the public policy. In Tekait Mon Mohini Jemadai v. Basanta Kumar Singh case, the parents of the husband as a minor husband also signed the pre-marriage agreement stating that he would reside in the house of his mother-in-law and would abide by the instructions of his mother-in-law. But, after living for about 15 years as such, the husband left his mother-in-law’s residence and demanded that his wife resides with him in his residence. The Calcutta High Court relied on the Sheonarain case and some foreign judgments and held that the agreement was invalid due to opposed to public policy because it restricts the marital rights of the husband and, he was minor at the time of signing the agreement. The court indirectly had accepted that if the contract would not have been against the public policy, then it could be valid.
Conclusion
Yet there are no concrete views of the Apex court on the issue but still the jurisprudence of the pre-nuptial agreement adapting in India by the well-educated society although the rural part of India is still far from this new emerging concept. There may be clauses about assets, spousal rights, clauses related to children, etc. given in the agreement within limitations of the Indian Contract Act, 1872, to ensure the validity and enforceability of the agreement. The evolution of judicial precedents may be a torchbearer in grounding the jurisprudence of pre-marriage agreements. But a legal step must be taken by the legislature to give the clarity and specification with the legalisation of the concept of the pre-nuptial agreement.