Thanks to India News Time for publishing my article on Pre-nup (content reposted below in my blog section).
Few Years Back while having dinner at a restaurant Dhruv asked me an interesting question.
Aunty, do you practice matrimonial law? What are the general clauses of a PreNup agreement in India?
Well, Dhruv is my very close friend Madhu’s Son , who is 21 years old and was doing his under graduation at the Stanford University, California, USA and is now a researcher there.
I rolled my eyes and told him, “Prenuptials are for rich and famous Dhruv, and in India we don’t even know whom we are getting married to most of the time, reality comes out after about 6 months of marriage!! forget about a pre-nups, we have more graver concerns than that!!
So, Dhruv came sharply at me and told…..”Aunty, think about me, I am part of a lot of research back there, we do quality research for many software development projects and for companies and these research findings are very valuable and most of them are patented and when I am part these innovations, the stakes are very high and it is part of my hard work, why would I risk it in the name of a marriage. If I want to marry a Tam-bram girl, an arranged marriage as my mom wants, or even a love marriage here, I need to think about a pre-nuptial agreement with respect to these aspects. This is very common in USA as they have the concept of community property rights among spouses. So, if any one need to marry in India and live in California or anywhere for that matter, they should think about a pre-nuptial agreement.
Almost during the same time, Kripa during one of her counseling sessions with me, addressed the same issue. She married her love here in Chennai and is now settled in the US. She holds a coveted post with a Retail Giant in the US and her husband is an artist. She says: “Madam, I have struggled on my own for years to be what I am, today if I have to part ways with my husband, it is agreeable for me to pay a decent alimony, but it is absolutely unfair if I have to share 50 % of my entire assets and income with him plus child maintenance. This is the point where pre-nuptial agreements are important. We in India are highly emotional and skeptical about documenting anything unless we are pushed against a wall!”
This kindled my curiosity to understand what is a Prenuptial Agreement and how does it work!
PreNuptial Contracts are agreements entered into between the couple before tying the knot, the purpose of the agreement is to have a clear understanding about the division of property, custody of children and alimony in the event of matrimonial discord which could culminate in a Divorce. The Western Countries like the US, Canada and Australia and even the UK has adapted to this concept of Pre-Marital Contract and in my understanding prenuptial agreements are gaining popularity among coupes with considerable income differences. We, in India are far behind accepting any new concept, same in the case of signing a Prenup. Having said that, let me admit that any Indian mind would revolt to view marriage as a contract and one may view signing of a Prenuptial agreement as a challenge to the sanctity of marriage.
In this context, it will be interesting to understand the History of marriage in general and India in particular.
Marriage as a social Institution came into existence to regulate the natural consequences of human behavior like possession and ownership of property, to ascertain the paternity of children and later for the protection of women. With the advent of religion, laws were made to regulate all aspects of Human life and marriage was no exception. For example the Catholic Church preached that marriage is a divine communion between a man and a woman and the Church converted marriage into a divine sacrament with ceremonies and exchange of vows where separation of couple/Divorce became impossible. The purpose of this was to ensure protection of women and her off-springs and also to promote monogamy among men. Islam also made personal law to regulate marriages which are contractual in nature where the mosque register the marriage with consent of parties and the same process is followed for divorce as well.
In India, different forms of marriage existed and the earliest text available on marriage or Vivaha is “The Manusmrithi” which compartmentalized marriages on the basis of caste system. Each caste had different dharmas and the marriage also was considered a religious sacrament to uphold the virtues of their respective dharma. The Vedic scriptures, and the religious literature like the Upanishads, Ramayana, Mahabaratha etc tells us that there existed 8 types of marriages namely Brahma, Prajapathya, Aarsha, Daiva, Asura, Gadharva, Rakshasa, Paisacha and there also existed the Swayamvara tradition followed by the Kshathriyas. India had/has variety of customs and traditions depending on caste or dharma of each sect or community. However, the essential religious rites for solemnization of a Hindu Marriage is the Panigrahna (the groom holding the hand of the bride assisted by the bride’s father or Uncle) and the Sapatpadi (taking the seven steps together). According to Hindu Dharma these rites bond not only two individuals into a conjugal relationship in this life but for many more lifes to come and therefore marriages in India (among most communities) was a religious sacrament and not just a social or legal commitment. But having said that, polygamy was widely accepted as a norm and polyandry was also prevalent among few communities and tribes.
The British Raj did not interfere with the personal laws or the customs and the traditions prevalent in India, but as a part of various social reforms orchestrated by the freedom movement in India, the educated Indian minds slowly started attacking the social evils like Sathi, Child Marriage, abandonment of widows etc which were nothing but the residue of the sacramental Hindu Marriage which were mostly patriarchal and women were victims of the sacrament. The second part of the 19th Century saw radical changes in the Social structure of the society in India, various enactments like the Hindu Widow Remarriage Act 1856, The Child Marriage (Restraint) Act 1929 (popularly known as The SARDA ACT)revolutionalised, the Hindu Marriage from its sacramental status to a humanly affair.
Finally, the Hindu Marriage Act of 1955 codified the rights and duties of any Hindu who wants to marry, and for the first-time consent of both the parties became a substantial ingredient of a valid Hindumarriage which made marriage closer to a contract but still a furlong away from a contract. In India today all marriages are governed by the personal law of the religion professed by the individual. Hindu marriages are governed by “The Hindu Marriage Act of 1955”, Christian marriages are Governed by The Indian Christian Marriage Act, 1872 and the Muslim marriages are governed by their personal law (Muhammadan Law) and for Inter –Religious marriages there is the Special Marriage Act, 1954 and the Foreign Marriage Act 1969 respectively. We also have some secular laws dealing with matrimonial rights in the form of Section 125 of the CRPC. 1973, Section 498 A OF IPC, 1860, The Family Courts Act, 1984, The Muslim Women Act 1986 and The Domestic Violence Act 2005.
Agreement of marriage in writing existed even in the early post-independence traditional arranged marriages among all communities in India. This development of a written agreement to conduct the ceremony started when the families of the prospective Bride or Groom started looking for matches away from their families and localities due to growth of transportation, communication and better education. The engagement or betrothal ceremony conducted as a pre-marriage event has a custom of the parents or elders in the family of the bride and the groom exchanging written agreements/consent letters to conduct the marriage by fixing the date and sometimes the details of the money, jewels and other articles exchanged as Sthreedhanam or Mehar for the marriage.
Today due to urbanization and cross-culture societies, Globalization and financial independence of women there are numerous inter-castes, inter-religious and inter-state (both love/arranged)marriages. The ceremonies or rites are just emotions or celebrations of a long-lost glory of a sacrament which would largely depend on the taste, financial capabilities or believes of the couple or their parents. Whereas a Tamizh, Hindu Brahmin may want to by-pass their three days ceremony and tie the knot in a Kerala Hindu Nair style wedding with selective rites lasting 5 minutes, a Hindu Nair may want to get married in a Punjabi style and convert their 5 minutes wedding into a 3 days gala event with mehandi, horse ride and what not.
In Short, Indian Marriages have travelled far away from its old concept of divine union of the man and woman for 7 lives to a mutually accepted and respected conjugal relationship on such agreeable terms and conditions by the contracting parties. Therefore any mutual written agreement between the parties before entering into a matrimony concerning the marriage like division of property, Child welfare or even Alimony would not harm the institution in its latest form. On the other hand, it could prove to be advantageous to go into marriage with more clarity and foresight.
Essential Ingredients of A Pre-Nuptial Agreement
A PreNup should be a simple agreement to document few mutually accepted decisions of the couple with respect to division of property, child custody rights and welfare and alimony without much qualifications. It should state in specific terms that the agreement comes to operation only in the event of dissolution of marriage between the parties or Divorce, not in the event of death or sickness.
Enforceability of A Prenuptial Agreement In India
Any agreement entered into between two parties under their free will and consent is enforceable under Section 10 of The Indian Contract Act, 1872. However, the personal laws that govern the marriages or matrimonial affairs in India does not have any provision to deal with pre-existing agreements, but Section 13(b) of the Hindu Marriage Act,1955 and Sec 10 (a) of The Indian Divorce Act, 1869 allows the spouses to dissolve the marriage under mutually agreed terms and conditions. In case of existence of a Pre-Nuptial agreement the parties can work around it to make the process of separation much easier and less stressful.
Living in a times where marriages collapse at the drop of a hat and young men and women want to remain single or live-in with their partners without a marriage simply due to fear of failure, a prenuptial agreement signed by parties and witnessed by two independent witnesses and their respective Attorney could be a breather to the collapsing social institution called Marriage.
Ambili Menon is Practising Advocate at Chennai on Corporate Practice and Compliances IPR, ADR, Family Law, Insolvency & SARFAESI matters.