Pre-nuptial agreements: A low hanging fruit for societal empowerment

Thomas Jefferson did not include women in the list of benefactors when he wrote how “all men are created equal” with the right to “life, liberty and the pursuit of happiness”. Pioneering feminist Mary Wollstonecraft in her famous A Vindication of the Rights of Woman condemned marriages of convenience. She wanted women to be transformed into rational and independent beings whose sense of worth came, not from their appearance, but their inner perception of self-command and knowledge. The Vindication argued that women should be taught skills to be able to support themselves and their children in widowhood, and never have to marry or remarry out of financial necessity. It argued that marriages ought to have friendship rather than a physical attraction as their basis, exhorting women to aspire to full citizenship and to be worthy of it. A Bebaak Collective report says that one important reason for the low divorce rate among Muslim women has been the State’s deficiency to empower Muslim women. This is also true for the majority of Indian women.

A pre-nuptial agreement defines -

(i.) Who does what upon dissolution of marriage

(ii.) Who gets what upon dissolution of marriage

(iii.) Mutual agreement to share future responsibilities should the union fail.

A pre-wedding pre-nuptial agreement saves time, expenditure and energy of warring couples by making both parties clear, careful and cautious in seeking dissolutions. The Jeff-Mackenzie Bezos divorce settlement made Mackenzie Bezos the richest woman in the world due to the absence of a pre-nuptial agreement. In March 2015, the then Minister of Women and Child Development floated the idea of pre-nuptial agreements as a low hanging fruit for women empowerment, but secretaries in the ministry raised orthodox and unreal doubts at the practicability, fearing that such contractual agreements may lead to societal breakdown and transformation of marriages into mere contracts. The secretaries were basically kowtowing to the mortal Hindu fear of abandonment of rituals. The fear is unfounded as I argue in this blog.

A pre-nuptial agreement may cover -

(i.) Ownership of assets & liabilities

(ii.) Division of house chores

(iii.) Purchase of assets

(iv.) Alimony

(v.) Children custodial rights

(vi.) Other issues like vacations, protection of spouse against false cases etc.

The Hindu perception of marriage as a sacrosanct institution, forming the very basis of families and civilised society, is the biggest hurdle in the path of legal acceptance of pre-nuptial agreements. In Janki vs. Nand Ram and Ors. (65 Ind Cas 813), the learned Allahabad High Court wrote: "To use the words of Manu, the nuptial ceremony is considered as the complete institution of women, ordained for them in the Veda" (Manu, Chap. II, s. 66,67). It is this perspective, powered by social stigma and underconfidence, that suggests prenuptial agreements, which are in the nature of contracts, will take away the sacredness of marriages in India. Under current Indian laws, divorce or dissolution of a marriage is either by mutual consent or by contest. This boon for lawyers is a bane for the hapless litigators who are at their wits' end grieving the loss of their marriages. The financial dependency along with the patriarchal premise that family assets belong to men makes separations worse.

Under the Hindu law, the wife's first duty to the husband is to submit to his authority and to remain under his roof and protection. She is not entitled to separate residence and maintenance unless she proves his refusal of the provision of a place of residence. Mere unkindness not amounting to cruelty, or ordinary quarrels between the husband and wife do not justify a claim for separate residence and maintenance (Mulla on Hindu Law 13th edition, Article 555). This position was remedied by the Separate Maintenance & Residence Act, 1946. Section 2 of that Act sets out grounds on which a married Hindu woman was entitled to separate residence and maintenance from her husband.

Pre-nuptial agreements are hit by Section 23 and 26 of the Indian Contract Act 1872, wherein the courts regard it as immoral or opposed to public policy. Section 26 of the act says every agreement in restraint of the marriage of any person, other than a minor, is void. In the case of ONGC Ltd. v. Saw Pipes Ltd (2003) 5 SCC 705, the Hon'ble Supreme Court of India observed that there is no precise definition of ‘public policy’ as it varies from “generation to generation and from time to time” and therefore, the idea of ‘public policy’ is ambiguous and its “narrow or wider meaning” depends on the situation in which it is applied. The concept of what is for the public good or in the public interest or what would be injurious or harmful to the public good or the public interest has varied from time to time. In metros like Mumbai and Delhi, almost 20% of marriages involve prenuptial agreements, serving as predetermined arrangements in arranged affairs. In most of the cases, the prospective spouses know that such documents may not have legal teeth but they feel that a prenuptial agreement imposes some moral obligations.

Currently, pre-nuptial agreements are not binding or executable in a court of law. The courts may take a prenuptial agreement into consideration for understanding the intention of the couple in cases for divorce. In the case of Mozelle Robin Solomon v. Lt Col RJ Solomon (1979) 81 BOMLR 578, the laws related to the marriage and divorce among Jews were reviewed and it was affirmed that Jewish marriage is a contract and not a religious sacrament. A ketubah marriage contract, intrinsic to Jewish marriage, where written commitments are given by the groom before nuptials to provide economic safeguards to the wife in case of his death or divorce, is a type of pre-nuptial agreement. Prenuptial agreements are commonplace in marriages under Islam, which regards marriage as a civil contract. Agreement to pay Mahr Mu’ajjal or Mu’akhkhar, which is to be paid to the wife after separation or death of the husband, is fairly well-known. The treatment of pre-nuptial agreements in the context of Muslim marriages, which are also in the nature of civil contracts, was given effect to Jewish marriages in India. The Indian Divorce Act, 1869, applicable to dissolution of Christian marriages, specifically provides that district courts may look into the existence of prenuptial agreements and refer to terms contained therein while passing a decree on the settlement of property upon divorce. The state of Goa, by virtue of being the only state to implement Uniform Civil Code and laws with heritage derived from the Portuguese, allows pre-nuptial agreements. Pre-nuptials are also allowed under the Special Marriage Act, 1954.

Why is the pre-nuptial agreement opposed?

(1.) Naysayers allege that incorporation of pre-nuptial agreements in Indian marriages will potentially and inauspiciously encourage couples to envision the end of the marriage prior to being bound in the marital bond itself which will lead to the end of marriages being viewed as the norm rather than the exception in India.

(2.) Legalising prenuptial agreements may give rise to the perception that there is an easily accessible escape route in case anything were to go wrong. This may encourage them to choose separation or termination of marriage instead of attempting to work together to reduce the differences, thereby shifting the resolution of marital disputes out of the domestic sphere and into the public arena of courts.

(3.) It can become difficult for husband or wife to seek non-enforcement of the contract from a schemer spouse due to consent to the terms at the time of signing the contract since there is often an element of deceit involved which is tough to prove before the court.

(4.) Restrictions of options which are available in conventional divorce proceedings. Agreements that are agreed upon by spouses by means of prenuptial agreements may further be detrimental to the spouse in case of unforeseen circumstances.

(5.) If provisions in prenuptial agreements seeking to defeat the provisions of legislation meant for the benefit of women would be legally prohibited from being given effect, there would be nothing to prevent a husband from abusing his wife by convincing her that she signed away her rights and protections under these legislations when she signed the prenuptial agreement. It is argued that prenuptial agreements may be used to bypass the provisions of beneficial legislations like the Dowry Prohibition Act, 1961.

(6.) A man from a wealthy background can marry a woman from a relatively less wealthy background and his family may claim large sums of money from her family as dowry. He may then make her sign a prenuptial agreement stating that the amount of money which she receives from her family as a gift of marriage is being voluntarily transferred to him. The wife may later find it difficult to seek remedy under the relevant provisions of the Dowry Prohibition Act.

(7.) A groom may make his fiancé sign a prenuptial agreement stating that he is permitted to hit her during coitus in pursuance of physical pleasure. It may become difficult for a wife to differentiate from an evidentiary point of view between wounds consensually received in pursuance of physical pleasure and wounds attributable to domestic violence.

How to check misuse of pre-nuptial agreements -

(1.) Prenuptial agreements can serve as emancipatory instruments beneficial to spouses. Procedural safeguards as in with Section 498A of the Indian Penal Code 1860, can be developed to curb the possibility of misuse instead of refusing to validate them legally.

(2.) Prenuptial agreements are likely to operate based on basic contractual principles. Safeguards allowing for voiding of contracts like undue influence and fraud and permitting nonperformance on grounds of frustration can operate to safeguard against possible misuse.

(3.) Given the unique nature of marital contracts in the societal context, courts can limit the application of the terms of the pre-nuptial agreement if they have a detrimental effect. For instance, if a ‘no alimony’ clause renders the divorced wife incapable of maintaining herself, the court may go beyond the terms of the pre-nuptial agreement.

(4.) In Indian marriages, the wife is generally considered to have lesser agency and power than her husband. The environment of many families reduces female autonomy with reference to decision making regarding their spouse. This plus the perception of women as burdens on the family within a patriarchal society may increase the opportunity for husbands to compel their wives to begin the marital relations by agreeing to agreements which are essentially oppressive in nature.

(5.) Multitude of family laws bring confusion. For example, since triple-talaq was declared invalid, some husbands are declaring themselves subject to shari'ah laws rather than court judges, to be able to continue the practice regardless.

Remote potential for possible misuse is no valid reason for rejection of an easy measure to safeguard human rights. Expecting women to be aware of legal technicalities is overly optimistic. This is truer for women from weaker economic backgrounds or rural areas. The changing attitudes in Indian society necessitate that prenuptial agreements be regarded as risk prevention tools instead of marriage breakage tools. Pre-nuptial agreements can help improve the marital life of a couple by building a strong marital foundation based on effective communication and concurrence on sensitive issues and full disclosure about respective liabilities and responsibilities. such agreements have not been demonstrated to be deterrents to entering into the marital bond but instead have been proven across the world to serve as safeguards in the unlikely event of the marital relation falling apart. It will not be the first time for the law to intervene in a homestead. India has previously passed laws like Protection of Women from Domestic Violence Act, 2005, Muslim Woman (Protection of Right on Divorce) Act, 1986, and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, Section 125 of the Code of Criminal Procedure, 1973.

Some relevant caselaw -

In the case of Tekait Mon Mohini Jemadai v. Basanta Kumar Singh ILR [1901] Cal 751 there was an ante-nuptial agreement on the part of the husband that he will never be at liberty to remove his wife from parental abode. Later, the husband filed a suit for the enforcement of conjugal rights wherein the agreement was pleaded as a defence to the suit. That defence fell on the ground that the agreement would defeat the rule of Hindu law that the wife must reside with her husband wherever he may choose and on the ground that it was opposed to public policy.

In the case of Krishna Aiyar v. Balammal ILR [1910] Mad 398 the wife refused to return to cohabitation with the husband. The husband filed a suit for restitution of conjugal rights. The suit terminated in a compromise but the wife never returned. The husband brought another suit for restitution of conjugal rights. One of the defences set up to the suit was the agreement between the parties which provided for future separation. It was held by the Madras High Court that such an agreement was forbidden by Hindu law, and it was also opposed to public policy and unenforceable.

The Bombay High Court in Bai Fatima v. Ali Mahomed Aiyab 17 Ind. Cas. 946 (1912) held that a prenuptial agreement specifying maintenance for wife in the event of prospective separation, although entered into by a Mahommedan couple, was against public policy since the agreement encouraged separation in addition to providing for it.

In Pran Mohan Das v. Hari Mohan Das AIR 1925 Cal 856, a person agreed to marry a woman based on the promise of her father to gift a house to his daughter. After the marriage, the plaintiff father shifted the possession of the house through an unregistered gift. The couple maintained possession of the house for several years and sold it to some other persons. The wife’s father later sued to recover the house. Here, the Calcutta High Court held that the prenuptial agreement was good and valid and the principle of “part-performance of a contract” estopped the plaintiff from the recovery of the property. Moreover, as the agreement in question was not a marriage brokerage contract, it was not found to be opposed to public policy.

In Bai Appibai v. Khimji Cooverji (1936) 38 BOMLR 77 a prenuptial agreement requiring the couple to reside in Bombay after marriage was held by the Bombay High Court as not being against public policy, given that it did not impose a restrictive obligation on either spouse to reside in Bombay permanently. The learned court sought to take a balanced view on prenuptial agreements, holding that the dictum in the Mon Mohini case and the Krishna Aiyar case would not be valid where the husband had abandoned the wife and it would also not attract the issue of public policy violation. It was observed that although Hindu law had made the husband tantamount to a ‘deity’ or ‘god’ for the wife, this would not allow a husband to desert his wife, deny the marriage or ignore her. The court further stated that as per the prenuptial agreement, the wife should be granted the requested relief of separate maintenance and residence as long as there was no confusion about her chastity.

In Buffatan Bibi v. Sheikh Abdul Salim AIR 1950 Cal 304, the plaintiff husband sued the wife for restitution of conjugal rights. The wife alleged that since the husband had failed to fulfil the terms of kabinnama duly executed by the plaintiff as a prenuptial agreement, she had divorced herself and was not his wife anymore. The Calcutta High Court observed that Mohammedan law allowed a person to confer his power of repudiation of marriage to his wife. It held that as part of the kabinnama, the husband had authorised the wife to stay in her father’s house in case of animosity and conferred on her the power to get divorced if he failed to maintain her for six consecutive months, and this was in the nature of a valid agreement.

In Saifuddin Sekh v. Soneka Bibi AIR 1955 Gau 153, the plaintiff-respondent wife dissolved the marriage as the husband could not fulfil 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 wife and if he did so, the plaintiff wife would be entitled to divorce him.

The agreement neither put any impediment to enjoying conjugal life on the other two wives nor obstructed the husband to hold relationships 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 affected by Section 23 of the Indian Contract Act, 1872 as it was not opposed to public policy.

In P. J. P. Thomas v. Commissioner of Income Tax [1962] 44 ITR 897 (Cal) the Supreme Court did not express any opinion as to whether a pre-nuptial agreement would constitute an adequate consideration or not within the meaning of section 16 (3) (a) (iii) of the Income Tax Act

In Thirumal Naidu v. Rajammal Alias Rajalakshmi (1967) 2 MLJ 484, the question before the Madras High Court was whether a prenuptial agreement between a husband and a wife to live separately would go against the claim for restitution of conjugal rights made the wife. The court placed reliance on the Krishna Aiyar case and opined that as marriage under Hindu law is not merely a contract but is sacramental in nature, a prenuptial agreement for future separation is contrary to the public policy and therefore, invalid.

The case of Sribataha Barik v. Musamat Padma AIR 1969 Ori 112, there was a pre-marital agreement that the husband would stay with the wife in her residence, but after a few years of residence, the husband left his in-law’s house, though he continued to stay in the same village with his mother separately. He also invited his wife and the child to stay with him and his mother. The court referring the Mon Mohini case observed that the wife must stay with the husband as per rule of the Hindu law and the prenuptial agreement was invalid as it was opposed the public policy.

The case of Sandhya Chatterjee v. Salil Chandra Chatterjee AIR 1980 Cal 244, though it concerns a post-nuptial agreement, would be relevant towards understanding how a logical contractual agreement between the husband and wife will not be opposed to public policy and enforceable. In this case, the Calcutta High Court held that while declaring a contract to be invalid for being contrary to public policy, a court should also consider the paramount public policy concern in terms of respecting free and voluntary contract between two adult persons. It was observed that with the change of time and advancement of the society, law changes and the wife’s demand for separate maintenance when living independently was justified and not against public policy.

In Commissioner of Income Tax v. Mansukhrai More (1988) 75 CTR Cal 101, 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 Section 16(3) of the Indian Income Tax Act, 1922.

Interestingly, the Supreme Court of England in the Radmacher vs Granatino [2010] UKSC 42 while upholding prenuptial agreements has observed that “the reason why the court should give weight to a nuptial agreement is that there should be respect for individual autonomy. The court should accord respect to the decision of a married couple as to the manner in which their financial affairs should be regulated.”

In Sunita Devendra Deshprabhu and Ors. vs. Sitadevi Deshprabhu and Ors. 2016 SCC online Bom 9296, the defendant contended that the plaintiffs have suppressed the prenuptial agreement dated 07.05.1951. It was submitted that the prenuptial agreement between Raghunathrao and Sitadevi would show that the parties had agreed for the regime of separation of assets. It was submitted that the concept of Hindu United Family is in conflict with the prenuptial agreement and the Portuguese law thus a decree obtained to save the properties after the Income Tax Act and the Wealth Tax Act became applicable to Goa was tainted with fraud.