By Hemant Sharma Prenup is just like a contract which two people sign before they get married. It describes how their assets, property, money and other things would be handled in the case of a divorce or separation. Prenups are legal and enforceable in a number of countries. But these matters are far more complex in India.
The Law in India:
There is no specific law in India that deals with prenuptial agreements. There is no one law in the country that grants prenups official legal status.
Most of the Indian marriages are controlled by personal laws based on religion or generic marriage laws. For example Hindu law frequently sees marriage as an act of worship instead than a contract. Adding a prenup or a marriage contract which is basically against that idea.
The Indian Contract Act of 1872 says that a contract is only valid if it has a legal objective and consideration, which means that something of value is given in exchange. Prenups usually don’t include this kind of discussion before marriage, which makes their binding nature questionable.
Most importantly any clause in a prenup that tries to take away a person’s legal rights under current law is likely to be wiped out since it goes against public policy.
Judicial Methodology and Variations:
Different Indian courts have issued various decisions on prenups. If a prenup goes against the law or public policy, some high courts have declared it is not valid.
In certain situations, especially when the contract is about splitting the property and doesn’t try to limit legal privileges or marital responsibilities then the courts have been ready to look at them. Yet this is still very rare and very dependent on the facts.
A court, for example saw a prenup as a clue of the parties’ “intent,” but it did not see it as a legally binding contract that could be strictly enforced.
The Case of Goa is an Exception:
Goa is a small state, which is a very interesting exception. Parties in Goa can sign contracts for property and assets before getting married because the Portuguese Civil Code is different there. Prenups are accepted in Goa.
This Code permits couples to disclose the ownership of their own properties before they get married and to decide how their assets will be shared and owned if their marriage get ends.
The Social and Cultural Context:
In India marriage has always been seen more as a sacred relationship than a legal contract. Due to this, many people think prenups go against social norms, which makes them socially rejected or even prohibited.
Nevertheless, the interest towards prenups is gradually growing as people become more financially independent and divorce rates are increasing day by day.
What a Prenup Can and Can’t Do in India:
A prenup might server as a record of what each individual wants to do with property they possessed before they got married or how they want to split their property. This is particularly true if the prenup is written down clearly and fairly. In certain cases, courts might use these kinds of agreements as a solid evidence when they are trying to figure out who owns something.
However courts are usually hesitate to enforce prenups that try to give up or limit legal rights, including as claims for maintenance, alimony, rights over marital property and child custody.
Since such provisions go against public policy and personal laws.
- Terms that try to limit or impose restrictions on a spouse’s rights under the law such as marital duties or personal obligations are likely to be invalid.
Conclusion:
For now prenups in India are in a legal grey zone. They aren’t certainly illegal but they also aren’t frequently recognized or enforced. There is no legal foundation outside of Goa. Courts determine whether an agreement is lawful on a case-by-case basis and this is mostly based on whether it goes against personal laws or statutory rights.
If you’re an Indian couple and considering to get a prenup, then the best thing to do is to see it as an expression of purpose only rather than a guaranteed shield.
If the goal is really to protect assets and avoid future fights, then it might be better to combine a prenup with a stronger legal agreement, just like setting up trusts, separate legal entities or clear wills and inheritance plans, instead of just relying on a prenup.