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PRENUPTIAL AGREEMENTS: Agreement recognition need of an hour.


Prenuptial agreements though seem to be a phenomenon of the complex industrialized society; however, its genesis can be traced back to more than 2000 years, to ketubah, a Hebrew contract marriage. It has been a part of the traditions of the royal lineages such as Edward IV between1461-64 signed a prenuptial agreement with Eleanor Butler​. The concept of prenuptial a.k.a, Prenups has been moulded to its current form, by the ever-evolving society. Prenups in its infant stage, was meant to protect the divorced woman or a widow from the vicious trap of indigence, however we see that this concept has liberalized and allowed couples to decide their post-divorce rights such as settlement of assets, to escape the tedious and long suits in the court.


Before going on the intricacies of this subject it is important to define the term prenuptial agreements. As the prefix in the name prenuptial agreements suggests that it is an agreement entered before marriage. Black's Law Dictionary has defined it as follows –

“The term is described as, the agreement between spouses in the divorce or separation process in relation to child support, alimony, distribution of assets, custody and support of children, etc.”


In India, prenuptial agreements have not been able to get its due, which it is getting in other legal systems across the world. However, there are different stand of the Muslim community, the Hindu Marriage Act, 1955 and the Indian Contract Act, 1872​, regarding the Prenuptial Agreements.

Muslim Community- In Muslim community, prenuptial agreements in the form of ‘Nikah Nama’ and ‘Mahrnama’ is an inextricable part of Islam across the globe however, there is a legal vacuum for prenuptial agreements in India.

Hindu Marriage Act, 1955- In the Hindu Marriage Act, 1955, marriage is a sacrament, a religious bond, though the sacramental basis of it has been partly eroded by section 13 of the Act providing for Divorce. Nevertheless, the dominant view of the Indian judiciary is that Hindu marriage is a sacrament, and mere mocking ceremonies would not solemnize marriage. Therefore, prenuptial agreements in Hindu Marriages are seen as a sacrilege.

Indian Contract Act, 1872- Coming on to the Indian Contract Act, 1872, though the prenuptial agreements satisfy the requirements under Section 10 of the Act, it has been declared, on many instances, void under Section 23 of the Act, on the touchstone of ‘Public Policy.’ This term public policy is nowhere defined under the Act, however what the current judicial trend is that the ‘no child clause’, ‘separation clause’, etc. are declared void by the court. This is so because the aim of courts is to preserve the institution of marriage, which is not only important for the couple and children but also for the society. This aforesaid, argument can be validated by the fact that under section 13A of the Act, court except petitions on the following grounds, grants Judicial Separation in petition for Divorce under Section 13 of the Act, that is Apostasy, renunciation of the world, not heard of being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive. However, the legislature has not provided any straightjacket formula to define the term ‘public policy’.

Thus, the definitional interpretation of the term ‘public policy’ is unclear and ambiguous.


The various judgments passed by the Apex Court of Michigan, showcases a better perspective of Judiciary towards Prenuptial Agreements.

In the case, Re Benker Estate​​, it was explained that-

“A contract relating to property made between persons in contemplation of marriage shall remain in full force after marriage takes place. Such agreements, while recognized as valid instruments, are of a special nature because of the fact that they originate between parties contemplating marriage. This relationship is one of extreme mutual confidence and, thus, presents a unique situation unlike the ordinary commercial contract situation where the parties deal at arm's length.

Moreover, through the case, Rinvelt v. Rinvelt​​, ​an analogy can be drawn with the position in India, basically due to two reasons​-

Firstly, similar to the position in India, the Apex Court of Michigan pronounced that the public policy prevailing in their country is also in favour of the institution of marriage. Secondly, before the coming of the above-mentioned case and its judgment, a similar fact was observed in their country that, Prenups will lead to separation/divorce and is conflicting with the institution and sanctity of Marriage. Similar to the view prevailing in India.

However, it was in the case of Rinvelt, where the court tried to explain and position that Prenuptial Agreements and the institution of Marriage are not conflicting entities. Rather, it strengthens the institution of Marriage by making the partners feel more secure about their future. Moreover, it gave greater liberty to the mature adults to handle their own financial affairs​.

Thus, through the above two cases, the evolving view of Judiciary towards Prenuptial Agreements can be easily mapped, that is how there was a gradual evolvement of the judiciary from a regressive judgment to a progressive judgement.


Safeguarding Women’s Rights after the separation/divorce or death of spouse-

It is often discussed that, in India Divorce cases run for a considerable number of years. Long Battles are fought among the spouses over the matter of property, maintenance and assets, and the majority of the time women end up losing out on their rightful share.

Thus, in the cases, mentioned above legally valid prenuptial agreements can play a vital role because it clearly defines the division of property, assets and maintenance and child custody clauses before the marriage takes place.

Thus, a prenuptial agreement can secure the rights of a woman in case of separation/divorce or death of the spouse without going through vigorous litigation​.

Safeguarding Women’s Rights in the case of Fraudulent NRI marriages-

NRI Marriages are marriages which take place between an Indian Women from India and an Indian Man but residing in some other country either as an Indian citizen or as citizen of that other country.

There are a number of problems which a woman has to face in case of NRI marriages. Neglection by the husband and the in-laws, harassment, case of bigamy in which the woman is treated as a slave, these are a few examples of what a woman may undergo in case of NRI Marriages​.

When the spouses enter into a prenuptial agreement, it means they are demonstrating their views prevailing to property, which would help them in the division of assets, property in case of separation/ divorce or death of the spouse.

Thus, this would defeat the whole purpose of people for the sake of property of the other spouse. ​Further, these agreements also define the spouse’s separate property, which would solely remain his/her and can be used in times of need​. Also, prenuptial agreements play an essential role, to ensure that the children from any previous relationships are fully protected.

Thus, Prenuptial Agreements ensure to its fullest that the rights of the women who are a part of these NRI Marriages are not submerged.

Prenups act as a game changer for the aggrieved party-

Prenuptial Agreements are often criticized on the ground that they increase the probability of separation/divorce; however, the criticism stands vague and illogical. Furthermore, getting life insurance doesn’t increase the probability of us dying, but it ensures the financial stability for those we leave behind​.

Similarly, Prenuptial Agreements also ensures the financial stability of the spouses in case of separation/divorce. If the marriage is not derailed, the agreement will be forgotten for good; if it does, the insurance can ensure that one’s individuality can be retained even if the marriage falls apart.​

Furthermore, Prenuptial Agreement, don’t demolish the love and trust of the future marriage, rather they empower the marital partners with the opportunity to decide on their hopes and dreams which strengthen their relationship. A relationship based on reality is definitely stronger than one built on illusion​.

Thus, prenuptial agreements are very similar to insurance, which keeps the marriage insured.


Prenuptial Agreements to be viewed, in the light of the celebrated ‘Privacy Judgment’ which is K. S. Puttaswamy v. Union of India.

The crux of this celebrated ‘Privacy Judgment’ can be understood by reading few phrases from the judgment, “Right to Privacy is natural, primordial, basic, inherent and inalienable right and it permeates the core of Preambular philosophy underlying ‘liberty’ and ‘dignity’ as also human concepts of ‘life’ and ‘personal liberty’ enriched in Art. 21, considered essential for a meaningful human existence.”

Thus, this showcases the elevated position given to this right in the recent judgment and the intrinsic value and paramountcy given to an individual and its autonomy. Making an individual, the focal point of the Constitution​.

Moreover, when we move towards the scope of this right, it can be deciphered that, Prenuptial Agreements makes a space in it​. The bench held that, “Personal choices governing a way of life are intrinsic to privacy. The autonomy of the individual is the ability to make decisions on vital matters of concern to life. The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual. Thus, above all, the privacy of the individual recognizes an inviolable right to determine how freedom shall be exercised”

Thus, it can be clearly understood that the aim and objective of the prenuptial agreements fall within the ambit of this judgment. Further as stated in the judgment, an individual should have autonomy to make decisions on vital matters of life and marriage being such an intimate and vital matter of an individual; hence an individual should be given full autonomy in this matter without any intervention. Thus, prenuptial agreements enlarge the sphere of autonomy, power and choice of an individual by empowering them to govern their personal matters without the intervention of the State.


The cases in which, Prenuptial Agreements between the couples were upheld by the courts are as follows-

In the case of, Pran Mohan Das v. Hari Mohan Das​. A prenuptial agreement providing transfer of certain piece of land by the wife’s father and subsequent unregistered gift by the latter in favour of husband, was upheld by the court and decreed that the wife’s father is now estopped by his part performance.

A contemporary case to quote, in 2016, Bombay High Court has upheld the validity of prenuptial agreements in settling of assets in divorce proceedings in Sunita Devendra Deshprabhu v. Sita Devi Deshprabhu​​.

Furthermore, in the case of Commissioner of Income Tax v. Mansukhrai More​​, the courts have recognized the validity of prenuptial agreements providing transfer of property as a mode of discharge of liabilities and subsequently did not attract section 16(3), Income Tax Act, 1961. Thus, it can be clearly concluded that prenuptial agreements are trending and the courts are actively recognising them.


Through the above discussion it can be clearly concluded that Prenuptial agreements are being favoured all over the world because of the reason that it gives future stability to the partners. However, due to lack of legislation and uninformed population, the masses in India are not able to extract the advantages of prenuptial agreements. Furthermore, it has to be understood that prenuptial agreements are in no sense against the institution of marriage; rather, it supports the very foundation of the institution by securing its future relations. Moreover, as discussed above, prenuptial agreements enlarge the sphere of autonomy, power and choice of an individual by empowering them to govern their personal matters without the intervention of the State which stands in support of the famous privacy judgement.

Hence, recognition and validation of these prenuptial agreements have become the need of an hour mainly because of two reasons, firstly for safeguarding women's rights after separation/divorce. Secondly, for safeguarding women’s rights in case of fraudulent NRI marriages. Thus, recognition and validation of prenups have become extremely important.


  1. The History of Prenuptial Agreements, available at​: (last visited on Dec. 28, 2020).

  2. Prenuptial Agreements in History, available at: (last visited on Dec. 26, 2020).

  3. Analysing the Validity of Prenuptial Agreements in India, available at: (last visited on Dec. 28, 2020).

  4. Is India really ready for Prenuptial agreements, asks divorce lawyers, available at: (last visited on Dec. 28, 2020).

5. The Not so Sweet face of NRI Marriages, available at: (last visited on Dec. 28, 2020).

6. Is entering into Prenuptial or Postnuptial Agreements beneficial to NRIs, available at: (last visited on Dec. 28, 2020).

7. Why are Prenuptial Agreements becoming so Popular, available at: (last visited on Dec. 28, 2020).

8. Three States of Marriage: Time for Urban India to Debate Prenuptial Agreements, available at: (last visited on Dec. 28, 2020).

9. A case for global enforceable Prenuptial Agreements, available at: (last visited on Dec. 28, 2020)

Name- Srishti Sachan.

Course & year- BA.LL.B, II year.

College- University School of Law & Legal Studies, Guru Gobind Singh Indraprastha University.

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