Validity of Pre-Nuptial Agreements in India

By:- Vishal Patidar


Over the last couple of decades, there has been a sharp rise in the number of divorces around the globe. As the number of these cases grows, a new concept known as a “Pre-Nuptial Agreement” has taken centre stage. A pre-nuptial contract is signed and entered into by two people when they marry. It’s a written, certified, and notarized agreement that generally spells out how property and child custody concerns will be dealt with if the marriage ends in the years ahead. It is a formal legal contract signed and verified by both parties that lists the objects presented at the wedding as well as those presented by the bride to the groom.

The agreement has its origin in the western world and is gradually making its way to other parts of the world. This agreement is described as a preventive step that protects both spouses’ interests. Although such an agreement is more widespread in Western nations, it is not yet widely accepted in India, since marriage is regarded as a holy and sacrosanct ritual.

Entering into such a contract before marriage doesn’t sit well with Indian culture. Furthermore, selecting from these contracts creates a social stereotype that the partner has a low level of commitment, and the prospect of divorcing just before marriage is both dishonourable and ominous. We will be discussing various aspects of Pre-Nuptial Agreements and try to answer the question of whether these agreements are valid in India or not.

Evolution of Pre-Nuptial Agreements

The Pre-Nuptial Agreements have not been developed in the country, but they have their origin in the western world. These agreements are probably a much older concept and have their roots in the Egyptian era, dated around 2000 years ago. The reason for the evolution of this system was to ensure that women would not be left without any means of survival in the event of divorce or separation. This was subsequently developed and modified to meet the needs of numerous nations.

Taking the Jewish Ketubah marriage as an instance, it gives the image of a genuine prenuptial agreement. The Jewish premarital arrangement is known as a Ketubah marriage. The Ketubah comprises mostly of a spouse’s privileges and a husband’s responsibilities to his spouse, as well as a spouse’s rights to maintenance by her husband in case of divorce.

The idea, similar to the pre-nuptial agreement, is also prevalent in Mohammedan law. As an element of a marriage ceremony, many Islamic weddings include the agreement of a mahr arrangement, which would be a monetary payment from the man to his spouse. As a result, the idea of premarital agreements has been around for a longer period, but it is practised in various ways by every nation, civilization, and group.

Why is the Pre-Nuptial Agreement necessary?

Marriage was originally thought to be a seven-life relationship that was established in heaven, so once wedded, the couple could not be parted until death. This would have been the reason for the lack of prenuptial agreements at this time because the thought of separation was itself immensely upsetting to the community. In contrast to today’s reality, a different perspective could be seen, as marriage is seen merely as a contract that takes no time to be broken, which is evident as the number of divorces is increasing day by day.

The need for a prenup is felt as our country has certain laws that are formulated to favour women, as they were the ones who faced oppression in history. But this doesn’t mean that they should be given an undue advantage against their spouses, as it defies the idea of bringing gender justice. The second reason for making the prenup agreement valid is that it may help in stopping the misuse of Section 498-A of the Indian Penal Code by the bride or her family.

Also, another reason for this is the fact that no legislation determines the amount of maintenance based on arithmetic. It is normally decided at the court’s discretion. When determining maintenance, the court could take into account criteria like the earnings of the couple, living standards, the claimant’s behaviour, and so on. By making a prenuptial agreement, couples may settle on this sum ahead of time and aim for an equitable distribution that benefits both sides. Thus, it assures us that spouses are not responsible for one another’s financial obligations after a divorce. 

Legal Position of Pre-Nuptial Agreement

In India, marriage is considered a sacred bond between two individuals, and a lot of impetus is given to the purity and piousness of marriage. Because of this belief, some religions in India do not consider marriage to be a contract. Therefore, the validity of an agreement like the pre-nuptial agreement is still a bone of contention in the country. There is no legal recognition provided for these types of agreements as of now in India. Some people in India do enter into such an agreement, but it can only be done for their convenience in the distribution of assets during a divorce, and it cannot be legally recognized in a court.

In this country, the personal laws of every religion deal with the matters of marriage and separation. These laws for different religions already have provisions for maintenance. Also, Section 125 of the CrPC deals with the provision of maintenance in the case of divorce or separation. Although there are no specific laws in India governing pre-nuptial agreements, if they were to be recognized here, they would have been subject to the Indian Contract Act of 1872. If we analyse Section 10 of the Indian Contract Act, 1872, which says, “All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.”

This agreement can be said to have some validity if we see it through the lens of Section 10. But, if we see Section 23 of the same act, which says that any object which is against public policy and is immoral, then the contract is void. So, as we all know, there is a social stigma associated with divorce, which renders such an agreement null and void for the time being. Because of this ambiguity, it can be deduced that the validity of the pre-nuptial agreement still lacks legal support.

Though the country does not have any statutes to provide legal recognition for pre-nuptial agreements, people still have an option to provide legal backing for them under the special marriage act. When all of the relevant paperwork is provided to the Registrar, a prenuptial agreement could be recognized and made enforceable at a future date if it is filed with other documentation.

Judiciary’s Stand on Pre-Nuptial Agreements

Though the concept of the Pre-Nuptial Agreement does not have any statutory validity in the country, the judiciary has still been confronted with cases regarding pre-nuptial agreements from time to time. In the case of Tekait Mon Mohini Jemadai v. Basanta Kumar Singh, the husband and his family entered into a pre-nuptial agreement in which the husband agreed to live in his mother-in-law’s house and follow his mother-in-law’s directions after the marriage. But the man moved out of his mother-in-law’s house.

The Calcutta High Court ruled that the pre-marital agreement was against social policy since it was intended to completely regulate the freedoms of men guaranteed by Hindu law, which, according to the court, might lead to the couple’s eventual divorce. As a result, the prenuptial agreement was deemed void by the court. The Madras High Court was confronted with the issue of the validity of the pre-nuptial agreement in the case of Thirumal Naidu v. Rajammal Alias Rajalakshmi. The court in the said case opined that because a Hindu wedding is sacred and not just a transaction, a prenup agreement for potential divorce is against public policy and hence illegal as per Section 23 of the Indian Contract Act, 1872.

Another case regarding the prenup agreement is Sunita Devendra Deshprabhu v. Sita Devendra Deshprabhu. The issue before the High Court of Bombay in this dispute has been the division of assets between the spouses. Nevertheless, the presence of a prenuptial was brought to the Court’s attention, and the Court took this arrangement into account while considering the issue of property splitting. With the support of numerous court decisions, one can see that there is still no strict rule about the conditions that will eventually lead to the applicability of a prenuptial agreement, but the court considers the parties’ intentions once they enter into a prenuptial agreement and delivers a judgement based on this.


Living in the 21st century, the most important thing that needs to be worked upon is to strive for gender-neutral laws that can bring equality. A pre-Nuptial Agreement could be a good concept that could end the confusion that is caused at the time of a divorce. This can make the process easier and way faster than the current process. The countries where the concept of a prenup is in practice have provided positive results in the process of separation and distribution of property among couples. In India, there is a lack of awareness of such agreements.

The reason behind this is the unavailability of a proper legal provision regarding the Pre-Nuptial Agreement. The courts also lack a proper guideline for deciding on issues relating to these agreements, which discourages couples from entering into a prenup agreement because it lacks a proper legal statute to provide its validity. Dedicated legislation with proper provisions needs to be implemented with immediate effect in India. Implementing such legislation would undoubtedly have a good impact and contribute to more amicable means of settling marriage-related conflicts.

It is usually advantageous for both sides as both engage in the contract and agree on its fulfilment based on mutually agreed terms. In the end, this will also benefit the judiciary because if this becomes valid, then limited cases of dispute will arise related to the amount of maintenance and other settlements at the time of divorce. Even after the agreement, the dispute remains. Then the court will have a dedicated statute to refer to and decide upon cases more efficiently which are related to the Pre-Nuptial Agreements.

Vishal Patidar is a first-year law student at Narsee Monjee Institute of Management    Studies (NMIMS) Navi Mumbai campus, currently pursuing a BA.LL. B (Hons).

Leave a Reply