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A prenuptial agreement is an agreement entered into by couples prior to their marriage. This document is typically signed, registered, and notarized, and serves to outline the distribution of assets and liabilities, as well as issues relating to the custody of children in the event of a divorce or annulment. By setting out the terms of how the parties wish to deal with potential issues that may arise during their marriage or relationship, such agreements address matters such as the division of property acquired during the union and the payment of maintenance or alimony.

In India, personal laws govern the matters of marriage and divorce, except for cases where the marriage was solemnized under the Special Marriage Act. Each religion has its own personal laws, which are used by the Courts to grant divorce, award maintenance, custody of children, and other related matters. According to Hindu law, marriage is considered a sacred sacrament rather than a contract, while Islam views it as a contract with pre-nuptial agreements frequently upheld in courts. The Indian Divorce Act, 1869, applicable for Christians allows court to consider the terms of any existing pre-nuptial agreements while making decisions regarding the division of assets in divorce cases. In addition to the personal laws, a wife can seek maintenance under section 125 the Criminal Procedure Code and Protection of Women from Domestic Violence Act, 2005. Prenuptial agreements are not specifically regulated by personal laws in force in the country.

In the absence of specific provisions under Indian personal laws, prenuptial agreement, because of its contractual nature, falls under the regulations outlined in the Indian Contract Act,1872. Section 23 of Contract Act stipulates that an agreement is deemed unlawful if it goes against public policy. This section states "The consideration or object of an agreement is lawful, unless- it is forbidden by law or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies, injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void."

If a woman consents in a prenuptial agreement to relinquish her legal entitlements, the court is likely to invalidate such an agreement on the grounds of being against the public policy of India. This is because any agreement in which one party surrenders their legal remedies is considered null and void under Section 28 of the Contract Act, 1872.

Pre-nuptial agreements are rare in India, but if they are made, they are treated as standard contracts. Nonetheless, they can be used as evidence or reference. To be recognized by Indian courts, a prenuptial agreement must be agreed upon and signed by both parties voluntarily, without any coercion, undue influence or intimidation. Additionally, the agreement must be fair and attested by separate advocate for each party.

Landmark Judgments:

·       Prenuptial agreements in Hindu marriages

In the case of Sheonarain v. Paigi, (1885) ILR 8 All 78, the plaintiff husband entered into a prenuptial agreement to settle in his mother-in-law's house with his wife but subsequently left her and began living with another woman. He filed for restitution of conjugal rights. The Allahabad High Court permitted the plaintiff to enjoy conjugal rights after “restoration to his caste” and ordered the defendant to return to her husband within one month of such restoration, despite the defendant wife's argument that he had violated the prenuptial agreement. The court deemed her argument "absurd."

In the case of Tekait Mon Mohini Jemadai v. Basanta Kumar Singh (1901) ILR 28 Cal 751, the husband and his parents signed a pre-marriage agreement when he was a minor stating that he would reside in his mother-in-law's house and abide by her instructions. After 15 years, the husband left his mother-in-law's house and demanded that his wife live with him in his own residence. The Calcutta High Court declared the prenuptial agreement invalid as it was deemed to be opposed to public policy, as it infringed upon the husband's rights under Hindu law and could potentially lead to separation in the future.

In the case of Sribataha Barik v. Musamat Padma, AIR 1969 Ori 112, a revision petition was filed against an order to pay the wife and child a monthly sum of INR 40 for maintenance. There was a pre-marital agreement that the husband would live with his wife in her residence, but he left after a few years and invited them to live with him and his mother in a separate house in the same village. The Orissa High Court referred to the Mon Mohini case and declared the prenuptial agreement invalid, as it went against the rule of Hindu law that the wife must stay with her husband and was opposed to public policy.

In Pran Mohan Das v. Hari Mohan Das, AIR 1925 Cal 856, a man agreed to marry a woman on the promise that her father would gift them a house. After the marriage, the father transferred possession of the house through an unregistered gift, and the couple sold it to someone else. The father later sued to recover the house, but the Calcutta High Court ruled that the prenuptial agreement was valid and the principle of "part-performance of a contract" prevented the father from recovering the property. The agreement was not considered to be opposed to public policy since it was not a marriage brokerage contract.

In the case of Sunita Devendra Deshprabhu v. Sitadevi Deshprabhu, 2016(6) BomCR 567, the prenuptial agreement was considered as one of the documents during deciding on a dispute regarding separation of assets.

·       Prenuptial agreements in Muslim marriages

In the case of Bai Fatma v. Ali Mahomed Aiyab (1912) 14 BomLR 1178, the Bombay High Court had to determine the validity of a prenuptial agreement between a Muslim husband and his wife that provided for a specified amount of maintenance in the event of a future separation. The court held that such an agreement, which encouraged future separation, was against public policy and therefore void. The court referred to English law of the time in reaching this decision.

In Saifuddin Sekh v. Soneka Bibi, AIR 1955 Gau153, the wife dissolved the marriage because the husband violated the terms of the prenuptial agreement. The agreement stated that the husband was not allowed to bring any of his former wives to live with him without the consent of the plaintiff wife. If he did so, the wife had the right to divorce him. The court found that the agreement did not hinder the husband's right to conjugal life with his other wives, but only required his wife's consent before bringing his former wives to live with him. The Gauhati High Court held that the agreement was not against public policy and therefore, was not void under Section 23 of the Indian Contract Act, 1872.

Prenuptial Agreement under Portuguese Civil Code:

The Portuguese Civil Code, 1867 which is only applicable in the Goa provides provisions for prenuptial agreement. A prenuptial agreement may be signed between the two parties at the time of marriage, stating the regime of ownership. If a prenuptial has not been signed, then the marital property is simply divided equally between the husband and wife.

References:

https://www.sndlegalassociates.com/post/importance-of-a-prenuptial-agreement-and-its-validity-in-india

https://www.barandbench.com/columns/are-pre-nuptial-agreements-enforceable

http://nujslawreview.org/2019/12/13/pre-nuptial-agreements-in-india-an-analysis-of-law-and-society/

https://blog.ipleaders.in/validity-of-pre-nuptial-agreements-in-india/