Source: Times of India

Why in News?

A Family Court of Mumbai observed that pre-nuptial agreements can be referred to understand the intent of parties while entering into the agreement.

What is the Background of the Case?

• The petitioner husband prayed before the court to grant divorce on the ground of cruelty by wife whom he met on a matrimonial website.
• The husband presented a Memorandum of Understanding (MoU) in the form of a pre-nuptial agreement which reflected that both parties agreed to separate on mutual grounds in case of any problem.

What was the Court’s Observation?

• The court granted the divorce to the couple by observing that “the agreement shows that the parties agreed to enter into partnership, and it was not related till last breath”.

What is a Pre-Nuptial Agreement?

• About:
  • Traditionally associated with Western cultures, pre-nuptial agreements are contracts entered into by a couple before marriage, outlining the distribution of assets and liabilities in the event of divorce or separation.
• Components:
  • This may include prior agreement related to distribution of properties, financial assets, and other valuable possessions after divorce or separation.
  • The agreement can also outline the terms and conditions for alimony or maintenance payments, specifying the amount and duration of financial support that one party may be entitled to in the event of a marital breakdown.
  • The pre-nuptial agreements can address issues related to child custody and support.
  • Pre-nuptial agreements can include clauses specifying the method of dispute resolution in case the terms of the agreement are contested.
    • This may involve mediation, arbitration, or other agreed-upon mechanisms.
• Global Position:
  • The pre-nuptial agreements are valid in countries like US, Netherlands and Belgium.
• Position in India:
  • India does not have a specific legislation governing pre-nuptial agreements. However, they are recognized under the broader view of the Indian Contract Act, 1872.
  • Thus, pre-nuptial agreements, being essentially contracts, cannot be considered illegal. However, their enforceability is still not enshrined in any legislation.
  • Under Section 40 of the Divorce Act, 1869, which applies on Christians states that the High Court and District Court, after its decree for dissolution of marriage or of nullity of marriage has been confirmed, may inquire into the existence of ante-nuptial or post-nuptial settlements made on the parties whose marriage is the subject of the decree.
• Reason:
  • The pre-nuptial agreements are not legalised in India because in India, where marriages are often seen as sacred and enduring, the idea of planning for its potential dissolution can be questioned by the societal norms.
  • Families may perceive pre-nuptial agreements as undermining the sanctity of marriage, emphasizing financial considerations over emotional commitment.
  • They are usually considered as contrary to public policy hence contradict Section 23 of the ICA which states that, “A 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”.