1. Introduction
To the lay person marriage can be defined in many ways and differs from person to person and depends on the traditions and customs they follow. Hindu marriages have historically been seen as holy sacrament; this has been emphasized in numerous religious texts and judgements throughout the centuries. But in recent times it has also been referred to as a ‘contract’ in judgements by various High Courts across the country like in Bhagwati Saran Singh V. Parmeshwari Nandan Singh[1].
Different religions have different definitions of marriage. As per Mohammedan law marriage is seen as a civil contract and not holy sacrament due to its resemblance to contractual agreements. Meanwhile, although Christian marriage has contractual aspects, courts have also upheld the sacramental nature of Christian marriage.
A prenuptial agreement is a contract entered into by a couple before they wed to set certain duties and rights in place as well as create guidelines regarding the ownership, and distribution of assets and liabilities in the event of dissolution of the marriage.
Traditionally, in Hindu marriages prenuptial agreements have not been held as valid as they went against the Section 23 of the Indian Contract Act 1872[2] since they were against public policy. Additionally, courts ruled that any agreement that would encourage the future dissolution of a marriage was void. However, this view on prenuptial agreements has been changing throughout the years and various courts have upheld the validity of prenuptial and antenuptial agreements between couples. When it comes to prenuptial agreements for other religious communities such as Muslims and Christians, courts are more liberal in their enforcement of a prenuptial agreement however there are certain limitations put in place so that any agreement does not violate personal laws or go against public policy.
Goa is unique due to its adoption of a uniform civil code based on the Portuguese Civil Code, 1867[3]. Prenuptial agreements are valid in Goa because personal laws do not apply and they are allowed under the Portuguese Civil Code.
Thus, it can be seen that throughout India there is no constant interpretation or enforcement of prenuptial agreements and that they differ based on various circumstances and are always evolving.
2. Hindu Marriages
Hindu marriage has always been seen as a holy sacrament between husband and wife. This has been held by the Madras High Court in Krishna Aiyar v. Balammal[4]. Pre-nuptial agreements are seen as undermining the sanctity of a marriage, and thus, they are not usually enforceable. But in more recent times, a more liberal attitude towards prenuptial agreements has been adopted by our courts.
In some of the earliest cases regarding prenuptial agreements, the common consensus from High Courts around India was that prenuptial agreements were not valid because they went against public policy and because they aimed to take away or grant special privileges that were barred in the Hindu law.
In 1901, the Calcutta High Court struck down the validity of a prenuptial agreement in Tekait Man Mohini Jemadi v. Basanta Kumar Singh[5]. In this case, the groom and his family signed an agreement when the groom was a minor, with a clause that stated that the groom would exclusively stay at the mother-in-law's house and that his own family would neither propose to nor were they competent to take him back. The court held that a prenuptial agreement that forced a husband to live with his mother-in-law and abstained him from leaving was void and did not have validity in the eyes of the law. The Court cited that such a clause in the prenuptial agreement would “practically lead to the separation of husband and wife in the future.”
In Sribataha Barik v. Musamat Padma[6], the Orissa High Court referenced the Mon Mohini case and held that an agreement violated Hindu law and public policy would not be valid.
In Krishna Aiyar v. Balammal[7] the Madras High Court held that a prenuptial agreement whereby a husband would pay a certain sum of money to the wife if she chose to leave him was void since it was against public policy and an agreement that would instigate any future separation would be invalid and conjugal rights could not be restored. The Madras High Court referred to the Mon Mohini case as well.
However, as time has gone on, courts have become more receptive to prenuptial agreements in Hindu marriages and have begun seeing them as enforceable.
Appibai v. Khimji Cooverji [8] is a landmark case as it did not follow the Court's ruling in the Mon Mohini case. In this case, a prenuptial agreement required the couple to stay in Mumbai after their marriage. Unlike the Mon Mohini case, the Bombay High Court upheld this prenuptial agreement between the couple as it did not place an unreasonable or restrictive burden on the couple to continue residing in Mumbai and, hence, in the Court's opinion, would not lead to the separation of the couple if enforced. The Court held that it did not violate public policy and was a “valid and good” agreement.
Sunita Devendra Deshprabhu v. Sita Devendra Deshprabhu[9] is another important judgement as the Bombay High Court took a prenuptial agreement into consideration while deciding the division of assets in a dispute.
Harish Kumar, a Family Court judge from the Patiala House Court, said in favour of prenuptial agreements that “The time has come to make compulsory a prenuptial agreement to be executed before the appointed authority after counselling of parties about the possible risk of marriage going haywire for a variety of reasons…”[10]
This shows society’s increasingly progressive outlook and acceptance of prenuptial agreements in Hindu marriages.
3. Muslim Marriages
Unlike Hindu marriages, Muslim marriage is not seen as a holy sacrament. In Abdul Kadir v. Saliman and Others,[11] Justice Mahmood observed that "Marriage among Muslims is not a sacrament but essentially a civil contract." In Urdu, prenuptial agreements are referred to as Nikah-Nama. It is an agreement signed by both husband and wife during the wedding, and it contains the rights, duties and obligations of the parties. This document must be signed in the presence of witnesses and must be publicly declared.
In the case of Muslim marriages, courts can hold an agreement as invalid if they think it violates public policy, encourages separation or restricts the liberty of any party.
An instance of the courts holding a prenuptial agreement void due to it encouraging separation can be seen in Bai Fatma v. Alimohmed Aiyeb[12]. The Bombay High Court held that a prenuptial agreement that provided payment of maintenance for the wife if they separated in the future was against public policy and that “an agreement providing for and thereby encouraging future separation between spouses must be pronounced void on account of being against public policy”.
In general, courts in India are more open to prenuptial agreements when it comes to Muslim marriages. This can be seen as early as 1882 in Hamidoolla v. Faizunnissa[13]. In this case, the husband and wife signed a Kabinnama (marriage contract) that allowed her the power to divorce her husband. The wife filed for divorce, and the husband argued that such delegation of divorce power was invalid. The Court held that if the wife consented to getting married under a contract that allows her to get a divorce under specific conditions, such an agreement would be upheld.
In Buffatan Bibi v. Sk. Abdul Salim[14], the husband had failed to comply with the terms of kabinnama and the wife had filed divorce proceedings due to this. According to the kabinnama the husband had agreed that his wife could live at her father’s house if there was any conflict between them and the wife had the power to get a divorce if he she lived at her father’s house for more then six months due to conflict. The Calcutta High Court upheld the kabinnama.
In Saifuddin Sekh v. Soneka Bibi[15], the wife divorced the husband as he could not fulfill the kabinnama. According to the kabinnama the husband could not bring his previous two wives to his current wife’s house without her consent. If he did, she would have the power to divorce him. The husband still had the ability to be in contact with the previous wives. The Guahati High Court upheld the validity of the kabinnama as it was not against public policy.
4. Christian Marriages
In canon law marriage was deemed an act of God by which man and woman were made of one flesh. This idea regarding the sacramental and indissoluble nature of marriage came from St. Paul.
This idea of marriage has gone through numerous changes throughout the centuries, especially the idea of indissolubility of marriage. In Saumya Ann Thomas v Union of India[16] the Kerela High Court held that marriage has transformed from a divine institution to a social institution. The Court recognized the evolutionary nature of marriage.
The Indian Divorce Act of 1869[17] and the Indian Christian Marriage Act of 1872[18] serve as the main laws that govern Christian marriages in India. Although marriage is considered as a sacrament as held in Kurian v. Alphonsa[19].
Section 40 of the Divorce Act, 1869[20], allows district courts to take into consideration the terms of any prenuptial agreements and enforce clauses related to settlement of property in the occurrence of divorce.
5. Conclusion
In recent times there has been a push to normalize prenuptial agreements, especially for the benefit of women in India. Maneka Gandhi communicated to Justice D.V. Sadananda Gowda, Minister for Law and Justice, the need for prenuptial agreements to be made compulsory for every couple and that the marriage would only be recognized in the eyes of the law if both parties had entered into the agreement.[21] This agreement could be regarded as a memorandum of understanding. The agreement would be signed in front of a witness and registered. Recently the Indian Ministry of Women and Child Development has also proposed measures to legally recognize prenuptial agreements formally. [22]
This shows that Indian society is moving their traditional views on prenuptial agreements and that with this change in mindset could lead to a change in what is considered against public policy. The Apex Court in ONGC Ltd v. Saw Pipes Ltd. [23] held that there is no concrete definition of public policy and that it changes from time to time. Additionally, the Supreme Court has also relied on the judgement Janson v. Driefontein Consolidated Gold Mines Ltd.[24] in which Lord Davet stated that public policy was an “unsafe and treacherous ground for legal decision”.
Like the Kerela High Court noted in Saumya Ann Thomas v Union of India[25] it is crucial to understand that the nature of marriage is evolving and it is not wise to stick strictly to ancient texts and laws. More emphasis should be placed on the nature of marriage in our contemporary society, instead of blindly obeying scriptures.
So as society changes, the legal system needs to strike a balance between preserving the institution of marriage and respecting individual liberty.
[1] AIR 1942 SCC 287.
[2] Indian Contract Act, 1872, s. 23.
[3] Portuguese Civil Code, 1867.
[4] ILR 1911 (34) MAD 398.
[5] ILR 1901 (28) CAL751.
[6] AIR1969 ORI 112.
[7] ILR 1911 (34) MAD 398.
[8] AIR 1936 (38) BOMBAY 138.
[9] AIR 2016 (6) BomCR 567.
[10] “Time to make 'pre-nup pact' compulsory, says Delhi court.”, The Times of India, Nov. 1,2023.
[11] ILR 1886 (8) ALL149.
[12] ILR 1913 3(7) BOM 280.
[13] I.L.R 1882 (8) CAL372.
[14] AIR1950 CAL304.
[15] AIR1955 GAU153.
[16] ILR2010 (1) KER804.
[17] Indian Divorce Act of 1869.
[18] Indian Christian Marriage Act of 1872.
[19] AIR 1986 Ker LT 731.
[20] The Indian Divorce Act, 1869 (Act No. 4 of 1869), s. 40.
[21] Tinesh Bhasin, “Prenuptial agreements likely to be mandatory” Business Standard, Feb. 05,2016.
[22] Raghav Ohri, “Prenuptial agreement now on government’s radar” The Economic Times, Feb. 27, 2018.
[23] AIR 2003 SC 2629.
[24] 1902 AC 484.
[25] ILR2010 (1) KER804.