Validity Of Prenuptial Agreements In India

Bhaavika Pillalamarri, BBA LLB (Hons.), Mahindra University School of Law

ABSTRACT

A Prenuptial agreement or prenup is an agreement made between two individuals before they get married that addresses how the assets and property will be divided along with issues regarding alimony and child custody if divorced. In the contemporary world lot of young couples are opting to enter into prenuptial agreements before getting married to secure their future in case of separation. The idea of entering into prenuptial agreements or prenups is becoming widespread now in India and it is something considered mostly by celebrities and rich families. But in India, marriages are governed by personal laws. Since marriage is a religious sacrament and not a contract under the Hindu Marriage Act of 1955, a prenuptial agreement is not enforceable under Hindu law.

If prenups were valid in India then in cases when a married couple apply for divorce then the presence of a valid prenup can be beneficial as it already has all the terms laid down with respect to maintenance, alimony, child custody and other matters which the couple had already discussed and gave consent to. This will make the whole divorce process easy and quick.

In India, there is uncertainty about the validity of these kinds of agreements since there were situations when the Courts used these agreements as a reason for splitting property between the couples, but in other cases, the court was completely opposed to enforcing prenuptial agreements.

In this paper, the author will address why prenuptial agreements are not enforceable in India even though it is known to be a secular state. The author will also examine the contradictions between the prenuptial agreements and the current Indian legal system.

Keywords: Prenuptial, Prenups, Divorce, Alimony, Personal laws, Secular law.