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1. ABSTRACT
   Prenuptial agreements—contracts signed before marriage to settle financial and personal matters in the event of divorce or separation—are gaining global recognition. However, their legal enforceability in India remains largely ambiguous. This article examines the unsettled status of prenups under Indian law, highlights their growing relevance amid changing societal norms, and discusses the pressing need for legislative and judicial clarity.
2. INTRODUCTION
   A prenuptial agreement, often called a “prenup,” is a contract entered into by two individuals before marriage, outlining how property, finances, and sometimes even personal matters will be handled during and after the marriage. In countries like the United States, the United Kingdom, and Australia, prenups have gained both legal recognition and social acceptance.
   In India, however, the concept sits at the crossroads of tradition and legal uncertainty. Despite rising awareness, the enforceability of prenups under Indian family law remains unsettled. This legal vacuum creates challenges not only for couples seeking financial clarity but also for courts called upon to resolve matrimonial disputes.
3. DEFINING PRENUPTIAL AGREEMENTS
   A prenuptial agreement is essentially a contract under the Indian Contract Act, 1872. It is entered voluntarily by parties intending to marry, usually covering matters such as:
   1. Division of property
   2. Maintenance/alimony
   3. Responsibility for debts
   4. Custody of children (though this is more contentious)
      These agreements are intended to pre-emptively address disputes that may arise in case of divorce or separation.
4. ARE PRENUPTIAL AGREEMENTS ENFORCEABLE IN INDIA?
   Indian law does not expressly recognize or prohibit prenuptial agreements. Their enforceability is primarily judged under the Indian Contract Act, 1872. However, several factors complicate this assessment:
   1. CONTRACT LAW AND PUBLIC POLICY
      Under § 10 of the Contract Act, agreements are valid only if they are not opposed to public policy. Indian courts have historically held that marriage is a sacred institution, not a commercial contract. Hence, contracts that “precondition” marriage or anticipate divorce may be seen as undermining the sanctity of marriage.
      In Tekait Mon Mohini Jemadai v. Basanta Kumar Singh, the Calcutta High Court invalidated a prenuptial agreement on the grounds that it restricted the husband’s freedom and contradicted the social institution of marriage.
   2. LACK OF STATUTORY RECOGNITION IN PERSONAL LAWS
      Family law in India is governed by religion-specific personal laws: the Hindu Marriage Act, 1955; the Muslim Personal Law (Shariat) Application Act, 1937; the Indian Christian Marriage Act, 1872; and others. These statutes make no reference to prenups.
      For Hindus and Christians, courts often rely on equitable principles and case-by-case discretion. Muslims, however, have a somewhat parallel practice: the nikahnama may include terms similar to prenups, and these are more widely accepted. Yet, even here, enforceability varies.
5. THE GLOBAL CONTEXT
   1. RECOGNITION IN OTHER JURISDICTIONS
      Most common law countries now recognize prenups, though courts often assess their fairness before enforcement:
      1. United States: Prenups are governed by the Uniform Premarital Agreement Act (UPAA).
      2. United Kingdom: While not binding per se, courts give considerable weight to prenups if entered into freely and fairly, per Radmacher v. Granatino.
      3. Australia: Recognized under Part VIIIA of the Family Law Act, 1975.
         These developments reflect a broader shift toward respecting party autonomy, especially in marriages involving considerable personal or financial independence.
   2. LESSONS FOR INDIA
      Given globalization, international marriages, and rising divorce rates, India may need to adopt similar principles. But unlike these jurisdictions, India lacks a uniform civil code or matrimonial contract regulation, making enforcement difficult.
6. CHANGING SOCIETAL REALITIES
   Indian society is evolving. Women are increasingly financially independent. Interfaith and intercaste marriages are more common. Urban couples often seek clarity and predictability in their marital relationships.
   According to the 2011 Census, the divorce rate in India, though low (around 1%), is rising, particularly in urban areas.⁹ This trend, combined with the growing influence of global practices, strengthens the case for regulating prenups.
7. JUDICIAL TRENDS: A GLIMMER OF CHANGE?
   Indian courts have occasionally shown willingness to consider prenups in divorce or maintenance proceedings, especially when they serve equity and fairness.
   In Kusum Sharma v. Mahinder Kumar Sharma, the Delhi High Court emphasized the importance of full disclosure and fairness in financial matters during divorce. While not about prenups per se, it hinted at the court’s interest in promoting transparency between spouses.
   Still, without legislative recognition, such agreements continue to be subject to judicial discretion, rendering them unpredictable and often ineffective.
8. THE CASE FOR LEGAL REFORM
   There is a strong argument for a statutory framework that:
   1. Defines prenups and sets clear guidelines
   2. Establishes fairness and consent as core criteria
   3. Allows parties to pre-negotiate financial matters while excluding child custody and other sensitive issues from absolute control, recognizes prenups across all personal laws under a uniform civil code or neutral statutory scheme such reform would not only empower individuals but also reduce litigation and uncertainty in matrimonial disputes.
9. CONCLUSION
   The legal status of prenuptial agreements in India remains unsettled. Although theoretically valid under the Indian Contract Act, their enforcement is often thwarted by public policy concerns and the absence of statutory backing in personal laws.
   As Indian society continues to evolve, the law must follow. Recognizing and regulating prenuptial agreements will not weaken the institution of marriage—it will, instead, strengthen it by encouraging transparency, consent, and fair expectations between partners.This article has been researched and written by Advocate Aarun Chanda, practicing divorce law in Mumbai and Pune. This article is intended solely for academic purposes and should not be construed as legal advice. Readers are encouraged to consult a qualified lawyer/advocate specializing in divorce cases for professional legal guidance.

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