Contracts are an intrinsic part of the human life. They are involved in almost all of our day-to-day activities. Explaining in the words of Hugh E. Willis, when there is a promise or a set of promises which create a legal obligation and has to be performed and if in any case this obligation is not adhered to, the law provides remedies for the same.[1] The origin of a contract is from an offer which is a promise with a condition that the offeree can either agree to or not and if he/she agrees then an agreement is formed between the two parties.[2]

All these terms related to contracts and formation of contracts have been best defined in the 1872 act named Indian Contract Act.

Section 2(d) of the act says that when a promise is in place and as a result of such promise the promisee does has done or refrained from doing something or does something or refrains from doing something or promises to do so in the future, this can be a called a valid consideration for the promise.[3] This presence of a lawful and valid consideration makes the set of promises an agreement as put in section 2(e).[4] As clearly put in section 2(h) an agreement which the law can mandatorily enforce is called a contract.

Before we delve further into our topic, we must give a close look to one of the most important sections of the Indian Contract Act, Section 10, which explains all the essentials that are required to make any agreement a contract. It says:
All agreements are contract if they are made with the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.[5]

The essentials for making an agreement a contract as explained by the above-mentioned section are:

1. There should be a freely obtained consent of all the parties of the agreement.
2. The parties must be of a legal competency where the law permits them to give their consent for an agreement.
3. The agreement should have been formed for a lawful object only. If the subject matter of the agreement itself is not lawful then the agreement cannot become a contract.
4. The consideration that has been agreed upon by the parties in such agreement must be lawful and must hold some value in the eyes of the law.

Now that we have dealt what the terms ‘Agreement’ and ‘Contract’ actually mean, we can delve into the topic of this project which is prenuptial agreements and their validity in Indian context.

As defined by Black’s Law Dictionary, Prenuptial agreements which are also called antenuptial agreements are agreements that are entered into by parties before their marriage to decide and resolve all issues of property, support and asset division between them in case the marriage ends by way of divorce or is caused by a spouse’s death.[6]

In a world where rate of divorces is at an all-time high, the prenuptial agreements have become an extremely important tool for avoiding future conflicts among spouses. Despite this, the position of prenuptial agreements in India is not well defined. There is an absence of a clear legislation on this matter and there is no clear stance of the courts or of the policy makers of the nation. In this paper, an attempt has been made to critically analyse this position and the conflicting views regarding prenuptial agreements.

Rules and Acts that govern marriages in India

The Hindu Marriage Act

The Hindu Marriage act, 1955 is a parliament act enacted to govern marriages in Hindus and also other religions, namely Buddhists, Jains and Sikhs, and also the marriages of people who have converted to any of these religions. This law came as a replacement of the Sastrik Law and the addition made here was that this act also governs the separation and divorce of these religions.[7]

Muslim Personal Law

The Muslim personal law which, as the name suggests, is not a parliamentary law, governs the Muslim marriages and also the succession and inheritance processes. The divorce and separation are covered in a separate act of 1939 named Dissolution of Muslim Marriages Act.[8]

Special Marriage Act

The 1954 Special Marriage Act which originated in the late 19th century is a legislation that governs the marriages of all Indians living in India or abroad irrespective of their personal faith and religious beliefs. A noteworthy point here is that in any marriage solemnized under this act, none of the Personal laws can be said to be applicable.[9]

Status of Prenuptial Agreements in context of Public Policy

With modernisation in the Indian society a lot of changes were witnessed and one of these changes was seen in the status of women. Women became more empowered and self-reliant enough to have the capacity to leave a marriage that is not working due to some issue. At the same time the social stigma about divorces has decreased for all the genders over the years and this has led to an increase in the number of divorce cases and this makes the prenuptial agreements quite relevant.

Prenuptial agreements make the entire process of division of assets between separated spouses much smoother and save the parties from the trouble of going to the courts for years and spending lots of money as legal fees.

Prenuptial agreements have not been mentioned specifically in any of the personal laws and there is no specific legislation regarding it.

The Dissolution of Muslim Marriages Act deals with the rights that Muslim women have after getting a divorce and section 40 of the Divorce Act, 1869 which applies to Christians mentions explicitly that if a prenuptial agreement exists then the district court may take it in consideration if it deems fit to do so while discussing separation of spouses.

Contrary to this, in Hindu belief, marriages are considered to be of sacrosanct nature and not of a mere contractual nature and this makes the entire process relating to prenuptial agreements more complex. As prenuptial agreements are of contractual nature, we can take it to be governed by the Indian Contract Act of 1872 but there is a problem here.

Section 23 of the act talks about what considerations or objects cannot be called lawful and its clause 5 mentions that if the object of the agreement is found to be against public policy in the eyes of the law then it shall be termed unlawful.[10] Due to this very reason, the Courts have time and again declared prenuptial agreements to be void on account of being opposed to public policy but it is noticeable that this has been happening mostly in cases where the personal law does not prefer separation of spouses, like in Hindu law.

In Jewish religion where the ‘Ketubah’ marriage contract is necessary for all marriages, the groom specifically signs a prenuptial agreement to safeguard the financial condition of the wife in the unfortunate event of separation or death of the husband.[11] In the Islamic religion too, marriages are regarded to be civil contracts and thus Islamic marriages may have specific prenuptial rights with the only condition being that both parties must give their consent for the same.

Despite this, the underlying statement remains that any such agreement must not be opposing public policy and this makes it important for us to see what judicial proceedings say about this via different cases decided by the courts over the years.

Judgements on Prenuptial Agreements

Where Prenuptial Agreements were held to be invalid:

1. In Tekait Mon Mohini Jemadai v. Basanta Kumar Singh[12] case of the Calcutta High Court, the husband had signed a prenuptial agreement that he, along with his parents, would live is the house of his mother-in-law forever but some differences arose between the two families after the couple had been married for 15 years and thereafter the husband moved out and demanded that his wife should also leave her house and should come to live with him. When Mon Mohini challenged this in court, the HC held that as this prenuptial agreement made an attempt to control the rights of the husband given to him by the Hindu law, this agreement was against the policy and thus was declared to be void.
    
2. In Krishna Aiyar v. Balammal[13], the couple was already separated but the husband desired to get back together and so for restitution of his marital rights he filed a suit. Soon after, the couple decided among themselves that they would start living together and the husband that in the event of any future separation he would pay an alimony amount to the woman. This agreement was held to be not prenuptial as the wife never returned to living a married conjugal life. More importantly, another point that the Madras High Court brought up was that it referred to the Mon Mohini case and reiterated that such an agreement was against the marital obligations that are envisaged in the Hindu law and that this agreement was void as it talked about a future separation and this was said to be against public policy.
    
3. In Sribataha Barik v. Musamat Padma[14], the main issue of contention was just like the ‘Mon Mohini’ case. In an agreement before the marriage the husband had promised that he would reside in his wife’s mother’s home but after a few years he decided to leave the house and live in his mother’s house which was also in the same village. When challenged in the Orissa High Court, the court referred directly to the Mon Mohini case and declared that this agreement was against the provisions of both, public policy and the Hindu law and thus was invalid. The court also passed the decree that the wife and their child must reside in the husband’s house.
    
4. In the case of Bai Fatma v. Ali Mahomed Aiyab[15], an agreement had been formed between a Muslim man and a Muslim woman that said that in the event of their separation in the future, the husband would pay a pre-decided amount to the wife as maintenance. The Bombay High Court referred to English law here and held that this agreement by its language anticipated and to a certain extent was encouraging future separation and that was clearly against public policy which made the agreement invalid.

A point to be noted here is that right now the stance of the same English law, which was referred here to declare the agreement invalid, is that prenuptial agreements should be encouraged as they give autonomy to the parties involved which is of great value and also that such agreements save a lot of time for the courts.[16]

Where Prenuptial Agreements were held to be valid

1. In Pran Mohan Das v. Hari Mohan Das[17], a man agreed to marry a woman in return for a promise made by her father that he would gift a house to his daughter. The delivery of house was completed at that time and the couple acted as the home owners for some time, after which they sold off the house. The father sued them for this but the Calcutta high court pointed out that as there is the estoppel of past performance applicable here and more importantly as the nature of this agreement was not such that it could be held to be against public policy and thus the court said that the prenuptial agreement stands valid.
    
2. In yet another case presented before the Bombay High Court, Bai Appibai v. Khimji Cooverji[18], the court went against the judgements of the ‘Mon Mohini’ case and the ‘Krishna Aiyar’ case and said that those would not be valid because although Hindu law regards the husband as a God figure for the wife, it does not permit the husband to abandon his wife and child or treat them poorly. These cases can not be said to be in violation of or opposed to public policy as here the husband was the one who had deserted the wife. Thus, the court ruled in favour of the wife’s demand of the separate residence and maintenance but in doing so it added a condition of chastity for the wife, which did not make much sense there.
    
3. In the case of Mohd. Khan v. Mst. Shahmali[19], the would-be husband had agreed to live as a khana damad in the house of her wife’s father. Another condition attached to this was that if the husband would leave the house then it would lead to becoming a valid ground for divorce and also, he would pay to some money in order to compensate the wife’s father for the money spent on the ceremonies in their wedding.

Later on, the husband refrained from performing his obligations and fled the house for four years. When this case was brought Jammu & Kashmir High Court, the court said that as Muslim law itself talk about the concept of khana damad and it is also a vey common practice in the region, so this agreement could not be held invalid. The court also held that even though this agreement seems to be against Muslim Law provisions by talking about a possible future separation, it is not and thus is as a valid ground for divorce because here the husband had refrained from performing his part.

An analysis of all the afore-mentioned cases clearly indicates how there is no fixed position of the courts of India when it comes to prenuptial agreements. The entire burden of determining whether a prenuptial agreement is valid or not has been put on the principle of public policy which is a very vague term. The application of ‘public policy’ is so subjective that even similar set of facts end up getting non-uniform judgements, even by the same courts in some cases.

Conclusion
Change is an intrinsic part of this world and changes never exist in isolation. There is always a series of changes caused by one single one of them. Now the change in status of marriages is not a very small one. It has serious implications and one of these implications is that a lot of modern-day marriages end up in divorces. Even in these conditions, India does not a single legislation dedicated to prenuptial agreements which prove to be a very significant part of any divorce these days. This absence of legislation and policies eventually leads to a lot of ambiguity and non-uniformity.

Administering justice in case of prenuptial agreements by the help of the ‘public policy’ clause of the Indian Contract Act has proved to be quite a far-fetched and vague approach. The need of the hour is deliberation, policy making and legislative action on this subject. Countries like England were far quicker than us to adapt to these changes for the couples’ good as well as for the greater good. It’s high time we adapt to these changes and India brings forth a law dedicated specifically to prenuptial agreements and covers each and every aspect of it.

End-Notes:

1. Hugh E. Willis, Restatement of the Law of Contracts of the American Law Institute, 7 ILJ. 429, 430 (1932).
2. Id
3. The Indian Contract Act, 1872, No. 9, Acts of Parliament, 1872 (India)
4. Id
5. Id
6. Black, H. and Graner, B., 2004. Prenuptial Agreements. In: Black's Law Dictionary, 8th ed. [online] West Group, p.3744. Available at: [Accessed 11 January 2021].
7. Aggarwal, N., 2016. Marriage Registration Laws In India - Complete Legal Guidelines. [online] iPleaders. Available at: [Accessed 11 January 2021].
8. Vakilsearch. 2016. Muslim Marriage Law In India: Formalities, Polygamy, Divorce, Remarriage - Vakilsearch. [online] Available at: [Accessed 11 January 2021].
9. Supra note 7
10. Supra note 3
11. My Jewish Learning. n.d. The Ketubah, Or Jewish Marriage Contract - My Jewish Learning. [online] Available at: [Accessed 11 January 2021].
12. Tekait Mon Mohini Jemadai vs Basanta Kumar Singh, (1901) ILR 28 Cal 751
13. Krishna Aiyar vs Balammal, (1911) ILR 34 Mad 398
14. Sribataha Barik vs Musamat Padma, AIR 1969 Ori 112
15. Bai Fatma vs Ali Mahomed Aiyab, (1912) 14 BOMLR 1178
16. Radmacher v. Granatino, (2010), UKSC 42
17. Pran Mohan Das And Ors. vs Hari Mohan Das And Anr., (1925) AIR 1925 Cal 856
18. Bai Appibai vs Khimji Cooverji, (1936) 38 BOMLR 77
19. Mohd. Khan v. Mst. Shahmali, AIR 1972 J&K 8