Prenuptial agreement now on government’s radar
According to officials familiar with the matter, the Indian Contract Act, 1872, acts as a roadblock in the implementation of prenuptial agreements, with Sections 23 and 26 rendering such pacts “void”.
Prenuptial agreements is a practice in the West before marriage, where couples sign a pact on how to treat their assets in case of separation. The agreements also often encapsulate the responsibilities of each other after wedding, such as who would do the dishes and who would drop the kids to school. Though rare, prenuptial agreements happen in India as well. But, there is no legal standing for those here.
Maneka Gandhi’s Ministry of Women and Child Development believes making such agreements legally binding would help save marriages. Once the liabilities, assets and responsibilities are decided in advance, either spouse would be wary of a callous dissolution, said an official. Officials also expect such pacts to reduce, as one of them pointed out, “the injustice being meted out to women who are deserted by their NRI grooms”.
A high-level meeting will be held in Delhi in the third week of March to explore the feasibility of giving legal recognition to prenuptial agreements, an official in the know of the matter said. Representatives from the ministries of home affairs, law & justice and women & child development are expected to attend, along with those from bodies like the National Commission for Women and legal luminaries. The meeting is expected to consider including a provision for prenuptial agreements into existing laws so that they can be legally enforced.
The Ministry of Women & Child Development had initiated a similar move in 2015 as well — as first reported by — but failed to make much headway. One of the major reasons at the time was the opposition from a secretary at the ministry, who raised doubts about the practicability of such agreements.
“The objections recorded were extremely orthodox and far from reality. It was contended that introducing prenuptials may lead to breakdown of families and that marriages cannot be reduced to mere contracts. The said opinions were, however, seemingly unfounded,” said a senior government functionary.
Asked about the reason to take up the matter now, a senior official said: “The ministry has put the spotlight on injustice being meted out to women who are deserted by their NRI grooms. Recently, there have been a spurt in such cases. A prenuptial agreement, it is believed, will significantly help in tackling this rising menace”.
According to officials familiar with the matter, the Indian Contract Act, 1872, acts as a roadblock in the implementation of prenuptial agreements, with Sections 23 and 26 rendering such pacts “void”. Also, none of the marriage Acts in India provides for prenuptial agreements. Hence, the need to ascertain ways to amend existing laws.
An upside of entering into a prenuptial is that neither the husband nor the wife can contest a demand for dissolution of marriage. Under a prenuptial agreement, a sparring couple can only apply for dissolution of marriage by mutual consent. For that, the terms and conditions of separation will be enshrined in the agreement. A senior law ministry official said: “A wide range of issues need to be discussed before reaching any conclusion.”