Prenuptial Agreements in India
- Pre-nuptial agreements are a Western concept in which the bride and groom make a contract before getting married that addresses the husband’s obligation to pay maintenance or alimony to the wife or their children, ownership of real estate, payment of debts and liabilities, and inheritance rights.
- In India the wife is entitled for maintenance under various provisions of personal laws i.e.
i) Section 24 of The Hindu Marriage Act, 1955.
ii) 125 Criminal Procedure Code, 1973. A wife can claim maintenance from her present or divorced husband if she is unable to maintain herself.
iii) Section 20 of The Protection of Women from Domestic Violence Act, 2005. - The wife’s rights to claim maintenance can not be taken away by execution of pre-nuptial agreement.
- Generally, pre-nuptial agreements prohibit a wife from claiming her Stridhan, maintenance, residency rights etc. As per The Hindu Marriage Act, 1955, the wife had absolute right over her Stridhan and the said right can not be renounced by her voluntarily. The estranged wife can claim Stridhan from her ex-husband even after grant of divorce.
- The wife is merely entitled for maintenance and shelter which can be a rented shelter. The wife does not have any right in the husband’s movable or immovable properties.
- As per Section. 28 of the Indian Contract Act, 1872, any agreement that restrains a party from seeking legal remedy to enforce its rights is void. The pre-nuptial agreements in contravention of the said section are invalid.
- Indian courts do not recognise pre-nuptial agreements, however few lawyers with the sole intention of making quick money, at the request of the laymen client draft and get executed pre-nuptial agreements.
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