A Prenuptial Agreement is a contract between two individuals who are about to get married, outlining the state of finances and personal liabilities in case the marriage fails. Though it is not popular in India, the instrument helps avoid financial disputes and trauma at the time of separation.
Scholars tell us that this practice dates back to the ancient Egyptians, and that prenups have existed for many centuries in Anglo-American tradition, and is not a new addition to the legal arena. Whereas in India prenups are neither legal nor valid or enforceable. A marriage is treated as a religious bond between husband and wife and prenuptial agreements don't find social acceptance. However, these are governed by the Indian Contract Act and have as much sanctity as any other contract, oral or written.
The Indian courts take cognizance of a prenuptial agreement if both the parties mutually agree to it and sign it voluntarily, without any undue influence, force or threat. Besides, the agreement should be fair, clearly stating the division of property, personal possessions and financial assets of the parties, and should be certified by a separate lawyer for each.
There could be a way out of acrimonious courtroom battles and bitter divorces if Union minister Maneka Gandhi has her way. The minister wants prenuptial agreements — a standard legal document in many Western countries — to be recognized in India. The move could help both spouses especially women get their right to maintenance or marital property without a cumbersome, expensive legal battle.
Divorce cases in India often run into several years of courtroom battles over property, assets and maintenance, and women often end up losing out on their rightful share. If the terms of property division and maintenance are clearly spelt out in a legally valid prenup, however, it could ensure that women get the assets and support they are entitled to without going through lengthy litigation.
Thus, prenups can be used as tool to check lengthy and cumbersome court room trials, save the court’s time. It can also act as determining factor for securing the rights of women against divorce as well!