- 28 Mar 2025
Prenuptial Agreements in India: Legal Reality or Wishful Thinking?
In Indian society, marriage is often seen as a sacred and lifelong union. Discussing finances, separation, or divorce before the wedding is still widely considered taboo. However, with increasing divorce rates and complex matrimonial disputes, many couples are now asking: Is it time to talk about Prenuptial Agreements?
Let’s explore what a prenuptial agreement really is whether it holds legal ground in India, and how such agreements if drafted thoughtfully can help couples avoid bitter disputes in the future.
Understanding Prenuptial Agreements
A Prenuptial Agreement, commonly referred to as a "Prenup", is a private contract made between two individuals before marriage. It outlines the ownership of their respective assets, financial responsibilities, and the course of action in case the marriage breaks down in the future. Although common in many Western countries, the legal recognition of such contracts in India is still under debate.
Typical clauses in such agreements often cover the division of property, financial support (alimony or maintenance), allocation of debts, and in some cases, terms of separation. However, it's important to note that child custody or guardianship terms in such agreements have no binding legal value in India. Courts determine custody strictly based on the best interests of the child.
Legal Validity of Prenuptial Agreements in India
India does not have a codified law that formally recognises prenuptial agreements. They are not addressed under the Hindu Marriage Act, 1955, or the Special Marriage Act, 1954. However, the enforceability of such agreements can be examined under the Indian Contract Act, 1872.
Under Section 10 of the Contract Act, a contract must be based on free consent, lawful consideration, and a lawful object. Additionally, it must not be against public policy. Therefore, for a Prenup to be enforceable:
- It must be voluntarily entered into.
- It should not restrict the legal rights of any party (such as the right to approach courts).
- The terms should not be immoral or contrary to public interest.
A major challenge lies in the interpretation of public policy. Indian courts have often held that agreements that restrict legal remedies or are contrary to social norms may not be enforceable. At the same time, the definition of public policy is not fixed it evolves with time and changing societal standards.
What Do Indian Courts Say?
While courts in India do not treat prenuptial agreements as fully enforceable contracts, they are increasingly willing to refer to them, particularly for evidentiary value. In certain cases, courts have examined prenups to understand the financial position of the parties, or their intentions at the time of marriage.
For instance, in Sunita Devendra Deshprabhu v. Sita Devendra Deshprabhu (Bombay High Court, 2016), the court noted that while a prenup is not binding, financial disclosures made in it can be considered. Similarly, under Section 14 of the Family Courts Act, 1984, courts have the discretion to consider any document that helps in the resolution of a family dispute, even if such documents are otherwise inadmissible under the Evidence Act.
In R. Rambilas v. Anita (2009), it was clearly held that no private agreement can take away a woman’s statutory right to claim maintenance.
Myths vs. Legal Reality
One of the biggest misconceptions is that a wife is entitled to 50% of the husband's property upon divorce. Indian law does not support such automatic division of assets. Maintenance is determined based on several factors, including the standard of living, income, and dependents, and is often limited to modest monthly sums.
There’s also a myth that property of the husband’s parents is considered for maintenance. However, the Supreme Court in Manish Jain v. Akanksha Jain clarified that only the income and assets of the spouse are relevant.
Another myth is that including a clause in the prenup stating that neither spouse will claim maintenance will prevent future claims. Courts have consistently held that such clauses are invalid, as statutory rights cannot be waived through private contracts.
Is There Any Practical Use of Prenups in India?
Despite not being strictly enforceable, prenups and related documents can still serve important purposes. A financial declaration made before marriage, detailing each party’s income, assets, and liabilities, can help courts assess claims for maintenance more accurately in the event of a dispute. This approach is sometimes referred to as a Peaceful Future Document—a mutual acknowledgment of financial status, helping to define the standard of living that a spouse is entitled to under law.
Some couples execute such agreements right after their marriage, particularly when registering under the Special Marriage Act. These documents can later be used as part of settlement agreements in mutual consent divorces or even as evidentiary documents in contested divorces.
Goa: The Exception to the Rule
India's only state with a uniform civil code, Goa, recognises prenuptial agreements under the Portuguese Civil Code, 1867. Article 224 of this Code specifically mentions the legality of prenups, making Goa the only jurisdiction in India where such contracts have formal legal status.
Conclusion: Is India Ready for Prenups?
While prenuptial agreements are not yet legally binding in India, they are not prohibited either. If carefully drafted within the framework of Indian contract law and avoiding clauses that violate legal rights, they can act as strong evidence and serve as preventive tools in matrimonial disputes.
India’s courts are evolving. As more couples seek financial clarity and independence, we may witness a broader legal acceptance of prenuptial agreements in the coming years. Until then, couples should consult legal professionals to create declarations or agreements that respect the law but also provide a roadmap for stability and fairness.
In the end, love and law need not be at odds. Informed planning is not a sign of distrust it’s a step toward a more transparent, equitable partnership.
Disclaimer
The contents in this article are just for informational purposes only. Efforts have been made to ensure the accuracy and reliability of information, the author(s) and publisher do not guarantee its completeness or precision. Any matter written in this article does not express the opinion of the author or the publisher. Additionally, it does not reflect the views of the organisation. Readers should self-analyse the information and perceive accordingly. The author(s), The publisher and the organisation are not responsible for any losses or damage occurring due to the interpretation of the article.
