There are several definitions of marriage given by various sociologists in history. Whether it is Westermarck in 'History of human marriage', which defined marriage as the more or less durable connection between male and female lasting beyond the mere act of propagation till after the birth of offspring. Malinowski's concept describes marriage as an agreement centred around the creation and upbringing of children. Horton and Hunt considered marriage as the approved social pattern whereby two or more persons establish a family. The modern marriage is an amalgamation of these theories and thoughts.
With the revolution of modernisation, marriage has also evolved alongside it. The emergence of an increase in divorce happened as part of this evolution. This gave rise to various new troubles, such as the division of the joint property and assets, maintenance and alimony, custody of any children, insurance, Mediclaim, trusts and savings, and any debt, individual or joint, between the couple.
A prevalent solution that gained attention to discuss the elephant in the room was the concept of Prenup Agreements. The history of Prenups dates back 2000 years to ancient Egypt. The Jews also provided for an ancient Hebrew marriage contract called a ketubah, which laid the foundation stone for the current concept of prenup agreements.
Prenuptial agreements are contracts created by two individuals before marriage to outline their rights to property and financial support in the case of divorce or death. A prenuptial agreement is a contract entered into between the spouses which is not regulated by any personal laws and, therefore, is subject to the provisions of the Indian Contract Act of 1872. The Supreme Court and High Courts in India held prenup agreements as void agreements as they held against the public policy of the nation. A gap between judgments on prenup agreement is seen, where in the case of Sayad Abbas Ali V Nazemunnessa Begum,[2] the Calcutta Court held that it is not against public policy, while in a judgement given in Bai Fatma V Alimahomed Aiyeb [3], the Bombay High Court held that it is against public policy. The Supreme Court, when evaluating the significance of prenuptial agreements in the case of Tekait Man Mohinin Jemadai v. Basanta Kumar Singh [1,9], ruled that prenuptial agreements do not hold evidentiary value in the court of law. This decision is based on the perspective that marriage in India is fundamentally viewed as a sacred bond rather than a contractual relationship. The decision of the apex court created a final statement where a prenup agreement is a void agreement and is not enforceable.
However, in the present scenario, the need for prenups has increased. Indian courts currently have 4,54,44,144 cases pending, and an average divorce case takes 5 to 6 years to resolve. The prenup agreement will help reduce the burden on courts.
Aside from the aforementioned scenario, there is a pressing need for prenuptial agreements due to the increasing number of divorces being filed solely for the purpose of securing maintenance. The essence of marriage was its sacrosanct nature which is a core concept in Indian society. Numerous cases have arisen where the wife requested the nonlogical quantity of maintenance from the husband. The infamous case of Atul Subhasha [4], a 34-year-old techie, died by suicide on December 9 in Bengaluru, alleging harassment and torture at the hands of his estranged wife and her family. In his 24-page suicide note, Subhash accused his in-laws of pressuring him to pay ? three crore for divorce. Atul also accused a family court judge of allegedly demanding a bribe to settle a maintenance case that his wife filed against him. Generally, the purpose of maintenance was to safeguard or help women to stand on their feet. But in the present scenario, it is misused for harassing husbands. The Atul Subhash case [4] is an eye-opener for Indian society, where he committed suicide as he did not get a satisfactory resolution. After his death, the rights of his child are in dispute now, and the parents of Atul have filed a case for the rights of the child. Prenup agreement will safeguard such inconsistent topics by creating a uniformity which will not only safeguard against nonlogical alimony but also help the wife in the rights of children. A prenup will ensure that things like Division of the joint property and assets, maintenance and alimony, custody of any child, insurance, medical claims, trusts and savings, and any debt, individual or joint, between the couple are already decided. In a modern scenario where marriage as a sacrosanct nature is in question, a prenup will help in getting the clarity of disputes that may arise.
Communities like Muslims, Jews, and Christians don’t consider marriage as sacrosanct in nature and consider it a civil contract. Goa has the UCC (Uniform Civil Code) based on the Portuguese civil code of 1857. A prenuptial agreement is allowed for property distribution under the Portuguese civil code. The legal provisions of Goa’s Civil Code have garnered significant appreciation. The apex court of India, in the Damodar Ramnath Alve v. Gokuldas Ramnath Alve case [8], noted that the Portuguese Civil Code has fortified the fundamental societal unit, the family, by protecting the rights of children and widows. This is a testament to the apex court showing the importance of a prenup agreement.
In conclusion, the implementation of prenuptial agreements in modern marriages can play a pivotal role in mitigating disputes and providing clarity in the event of a separation. Given the evolving nature of marriage, characterised by an increase in divorce rates and the accompanying complications, prenuptial agreements offer a pragmatic solution to safeguard the interests of both spouses.
By predefining the division of joint property and assets, maintenance and alimony, custody of children, insurance, medical, trusts, savings, and any individual or joint debt, prenuptial agreements can significantly reduce the burden on courts, which are currently overwhelmed with pending cases. This contractual clarity can prevent the misuse of maintenance provisions and ensure fair treatment for both parties, fostering a sense of security and fairness.
While the Supreme Court has historically viewed marriage in India as a sacrosanct bond rather than a contractual relationship, the contemporary scenario necessitates a reassessment of this perspective. The growing number of divorces filed for securing maintenance highlights the need for legal instruments like prenuptial agreements to protect against potential exploitation and provide a balanced approach to marital disputes.
Communities such as Muslims, Jews, and Christians, which consider marriage as a civil contract, and regions like Goa with its UCC based on the Portuguese Civil Code of 1857, have demonstrated the practicality and benefits of prenuptial agreements. The apex court's recognition of the Portuguese Civil Code's role in safeguarding family interests further underscores the importance of such agreements.
As Benjamin Franklin said, "An ounce of prevention is worth a pound of cure." Prenuptial agreements embody this wisdom by pre-emptively addressing potential issues, thereby fostering a more harmonious and equitable resolution to marital conflicts.
Disclaimer: Kindly note that the views and opinions expressed are of the author(s), not Law Colloquy.
References
[1] (1901)ILR 28CAL751
[2] 1997(4)BOMCR653
[3] Bai Fatma Wife Of Alimahomed Aiyeb vs Alimahomed Aiyeb on 1 October, 1912 (1913)ILR 37BOM280
[8] Shri Damodar Ramnath Alve vs Shri Gokuldas Ramnath Alve And Ors. on 12 February, 1996
[9] Tekait Mon Mohini Jemadai vs Basanta Kumar Singh on 20 March, 1901
