This blog has been written to help you understand several important practical concepts. It outlines how to file a complaint with the Police and the Adjudicating Officer.
We also touch upon Section 43(d) of the Information Technology Act, 2000, focusing primarily on physical damage caused to computers. Section 43(d) is used here solely for illustrative purposes. To explore this section in greater detail, you may refer to our blog What to do when your friend breaks your phone and won’t pay up?
Table of Contents
- Brief Introduction – Prenuptial and Postnuptial Agreements
- Why are prenuptial agreements illegal in India?
- Why are prenuptial agreements entered into?
- Key elements of a valid prenuptial agreement
- Countries where prenuptial agreements are legal
- Are there alternatives to prenuptial or postnuptial agreements in India?
- Co-owned businesses and properties of spouses as partners
- Marital assets
- Section 498a of the Indian Penal Code, 1860
- Preventive measures against false cases regarding maintenance and alimony
Brief Introduction – Prenuptial and Postnuptial Agreements
A prenuptial agreement (or prenup) is a private contract entered into by partners before marriage, outlining the division of financial responsibilities and rights in the event of divorce or death.
A postnuptial agreement, by contrast, is a similar contract made after marriage or entering a civil union.
Why are prenuptial agreements illegal in India?
The Indian legal system does not formally recognise prenuptial agreements as valid contracts. Presently, there is no specific legislation governing prenups.
- Public policy: Prenups are often deemed contrary to public policy. Under Section 23 of the Indian Contract Act, 1872, an agreement is void if its consideration or object is unlawful, immoral, or against public interest.
- Not covered by marital laws: Prenups are assessed under general contract law, not under the Hindu Marriage Act or other personal law statutes. Hence, Section 10 of the Indian Contract Act governs their validity, as it would with any standard contract.
Courts in Tekait Mon Mohini Jemadai v. Basanta Kumar Singh and Krishna Aiyar v. Balammal have held prenuptial agreements to be unenforceable.
However, in Sunita Devendra Deshprabhu v. Sita Devendra Deshprabhu, the court did consider the prenup while assessing division of assets, though this did not equate to full legal recognition of the contract.
Why are prenuptial agreements entered into?
Prenups aim to safeguard the interests of both parties and avoid contentious disputes during divorce. One of the primary benefits is that it compels couples to have financial discussions before marriage. Additional reasons include:
- Avoiding costly legal battles during divorce.
- Preventing the burden of sharing each other’s financial liabilities post-marriage.
- Allowing for smoother division of property.
- Pre-deciding alimony/maintenance terms, thereby limiting court involvement.
- Reducing the likelihood of appeals or disputes since terms have been pre-agreed.
Key Elements of a Valid Prenup
In jurisdictions where prenups are legally binding, certain standards must be met:
- Must be in writing; oral agreements are invalid.
- Mutual consent and acknowledgement by both parties.
- Free of coercion, fraud, or misrepresentation.
- Ideally signed before witnesses or a notary.
- Clauses must be fair and benefit both parties equally.
Countries Where Prenuptial Agreements Are Legal
Australia, Canada, Brazil, China, Finland, France, Greece, Portugal, Spain, South Africa, Sweden, Russia, Taiwan, Thailand, and the United States Virgin Islands have all recognised prenuptial agreements as enforceable by law.
Are There Alternatives to Prenups in India?
India does not offer exact alternatives to prenups or postnuptial agreements. However, this blog explores certain measures that can protect individuals, particularly in the event of divorce. Although the tone may appear male-centric, the intent is to highlight preventive approaches against misuse of laws and to protect those who may otherwise be vulnerable.
Co-owned Businesses and Property Between Spouses
It is common for spouses to co-own property or businesses after marriage. Problems can arise during divorce when these assets must be divided. In many cases, if a wife is the sole legal owner, she retains the asset after separation, even if it was built jointly.
In the absence of prenups, spouses can still draft separate business contracts detailing individual ownership shares. These should be structured as agreements between business partners, rather than spouses, and will be legally enforceable under the Indian Contract Act, 1872.
Should the couple separate, they may either continue the business as partners or fairly divide assets using the agreement.
Marital Assets
Gifts received by a bride, including jewellery, property, or household items, may sometimes be misconstrued as dowry. To prevent false allegations, the bride and her family may submit an affidavit declaring that such items were gifted voluntarily, without coercion or involvement from the groom’s side.
Section 498a of the Indian Penal Code, 1860
Section 498a protects women from cruelty by their husband or his relatives and allows imprisonment of up to three years with a fine.
While vital in protecting women from abuse, the law has also been misused in some cases. Frivolous accusations, particularly concerning dowry demands, are not uncommon, especially when the bride has already received substantial gifts at the time of marriage.
A sworn affidavit from the bride, listing possessions brought into the marriage and affirming the voluntary nature of such gifts, can serve as evidence against false accusations.
Preventing False Maintenance or Alimony Claims
Some individuals may leave their employment or business voluntarily after marriage and later file maintenance claims, citing coercion or abuse. In such scenarios, the husband may find it difficult to prove the contrary.
To mitigate this, the wife can be asked to sign an affidavit at the time of leaving employment, clearly stating that her decision was voluntary and uncoerced. This document can serve as evidence in court to counter fraudulent claims of abuse or financial pressure during divorce proceedings.
Edited by: Siddhant Pandey
