Under Section 23 of the Indian Contract Act, 1872 the consideration or object of an agreement is lawful unless the Court regards it as immoral or against public policy. Across judgments related to pre-nuptial agreements in the courts of India, the agreements have been held contrary to public policy.[1]

The Indian Contract Act does not give meaning to the expressions of public policy or opposed to public policy. The expressions are not capable of a clear definition. Public policy is not the policy of a specific government and refers to matters which revolve around public good and public interest. There are new concepts that are taking over the old which were once considered against public policy are now being upheld by the courts and similarly, where there has been a well-recognized head of public policy, the courts have not avoided extending it to new transactions and changed circumstances.[2]

There are a few cases in the Indian legal system that declared pre-nuptial agreements solely because it was contrary to public policy under Section 23 of the Indian Contract Act, 1872.

In Krishna Aiyar v. Balammal, the wife had refused to cohabit with her husband and the husband filed a suit for restitution of conjugal rights. The suit had terminated in a compromise by which it was agreed that the wife should return and live with the husband and that if at any time thereafter, she should desire to live apart from the husband, she was to be paid Rs. 350 by the husband. The wife never returned and thereafter the husband brought a suit for restitution of conjugal rights. One of the defenses set up to the suit was the agreement between the parties which provided for future separation. It was held by the Madras High Court that such an agreement was forbidden by Hindu law, and it was also opposed to public policy and unenforceable.[3]

In Tekait Mon Mohini Jemadai v. Basanata Kumar Singh, the pre-nuptial agreement controlled the rights of the husband which were conferred upon him by the Hindu law, and if the agreement was enforced it would lead to the separation of the parties in the future. The defendant herself said in her written statement that the plaintiff was forbidden by the collector upon a complaint made to him to enter the house of his father-in-law and therefore he cannot get access to his wife or take her to his house. The husband put himself in a general position of subordination which was not consistent with his status as per the Hindu law. Some quarrels arose and the husband was turned out of the house. [4]

In A.E Thirumal Naidu v. Rajammal, the question that was raised was:
whether an agreement to live separately can be urged in answer to a suit for restitution of conjugal rights by one of the parties”.

The judges relied on Krishna Aiyar v. Balammal, and that even according to the English Law, the agreement to live apart was invalid. An agreement for future separation is bad and opposed to public policy.[5]

In Sribataha Barik v. Padma, a revision against an order was passed by Sri D. Naik ordering the petitioner to pay Rs.40 per month from 26th June 1967 for the maintenance of his wife and if the petitioner chose not to pay the maintenance then he would have to stay in his in-laws' house and maintain as per the wife’s wishes. There was a reference to Mayane’s Hindu Law that when the wife grew up the house of the husband was her home and the husband was bound to maintain her while willing to reside with him and perform her duties and if the wife left her husband on her own decision without cause, she was not entitled to separate maintenance.

The petitioner was always willing to maintain the wife if she came and stayed with him and it cannot be said that the husband, the petitioner has neglected or refused to maintain the wife by not acceding to the insistence of the wife for going and staying with her in her parent's house. Therefore, the impugned order was illegal in so far as it provides for maintenance for the wife in her father's house, and in the alternative ordering the petitioner to go and stay therewith his wife. The order was set aside for giving the wife her maintenance and staying with the wife’s parents. [6]

According to the present law, pre-nuptial agreements come under contract law but their validity is not recognized by the legal system of India. Under Section 10 of the Indian Contract Act, these agreements have as much sanctity as any other contract. The agreements are taken into account if both the parties have mutually agreed amongst themselves, “competent to contract” and “ prenuptial agreement clearly states the fair division of property, personal possessions, and financial assets of the parties”.

The idea of pre-nuptial agreements is a western concept and new to “Indian culture and traditions” and has been looked down on by elders for generations but today there has been a change in the dynamics of marriage as there has been an increase in the number of divorce cases. There is a decrease in trust amongst the parties regarding their relationship and couples are looking for ways to get over the trauma of a divorce.

Also, people today are aware of the rights they are guaranteed and pre-nuptial agreements will be beneficial to the parties as they can declare their “intentions and expectations” before the marriage and look into the issues which are not given by the personal laws of the parties except under the Special Marriage Act and the Parsi Marriage law. Pre-nuptial agreements promote trust and make their relationship stronger.[7]

The Indian legal system has started incorporating this slowly and steadily as seen in Sandhya Chatterjee v. Salil Chandra Chatterjee[8] where it was held that it was just and desirable that they should live separately and comply with the terms of the agreement entered into between them and it will be beneficial to their interest as also their son, who is living with the mother. The judge was unable to hold that the agreement was opposed to public policy and not enforceable.

This particular judgment brings about how it serves the the public good of the society we live in now as times are changing as with the passage of time and the progress of society over the years it is safe to say that it is completely alright for the husband and wife to separate and this does not violate public policy at all. Over the years there has been a high rise in divorces and parents living separately. It has become a common sight now and it is fine if the parties live separately. This judgment proves that pre-nuptial agreements do not violate public policy at all and these agreements do look into the public good of individuals.

End-Notes:

1. Indian Contract Act 1872, s 23
2. Central Inland Water Transport Corporation Limited and Ors. vs. Brojo Nath Ganguly and Ors., 1986 AIR 1571
3. Krishna Aiyar v. Balamma, AIR 1968 Mad 201
4. Tekait Mon Mohini Jemadai v. Basanata Kumar Singh, (1901) ILR 28 Cal 751
5. A.E Thirumal Naidu v. Rajammal, AIR 1968 Mad 201
6. Sribataha Barik v. Padma, AIR 1969 Ori 112
7. Devanshi Saxena and Surabhi Lal , 'Pre-Nuptial Agreements In India : Westernisation Or Modernisation?' [2014 ] 4(62) Chanakya National Law University Law Journal
8. Sandhya Chatterjee v. Salil Chandra Chatterjee, AIR 1980 Cal 244