Update on Prenuptial Agreements in India

Jeremy D. Morley

We have previously written -- www.internationalprenuptials.com/prenups-in-india.html -- that:

India has no law on prenuptial or post nuptial agreements. Such agreements are not common in India and are contrary to Indian customs and views about marriage. Nevertheless, the global publicity about celebrity prenuptial agreements is encouraging more affluent people to consider the idea in India.

There appears to be no significant case law in India on the topic of prenups or postnups.  Critically, the Supreme Court of India -- which is vested with extremely broad power to do justice between the parties and which has been quite active in matters concerning the grounds for divorce -- has taken no stand on the matter of prenuptial agreements.

It is therefore essential to understand that while prenuptial agreements might be a valuable way for parties in India to express their intention concerning the nature of their financial relationship, it is not possible to assure -- or even to expect -- that such agreed terms will be upheld in an Indian court.

International clients should also anticipate that prenuptial and post nuptial agreements entered into while they reside outside India will likely not be enforced if either of them should initiate a divorce case in an Indian court.

Now, the Times of India reports that India’s Ministry of Women and Child Development has called for consultations on the issue of whether prenuptial agreements should be recognized in India. Reportedly, the ministry feels that the move will protect the interests of women who are in live-in relationships or marriage. "Our intention is that in the event that the marriage gets in to trouble, a woman should be able to get financial support without going through a lengthy, expensive process of divorce which may act as a drain on her resources and she may not end up with anything. The consultation will help us address the way forward,'' an official said.

Meanwhile, India’s Ministry of Law and Justice has reportedly confirmed that, “The prenuptial agreement is not recognized in India. Most couples, mainly those who are rich and influential, enter in to an agreement under the Indian Contracts Act. However, this has not been legally upheld in court.'' Since marriage in India is not seen as a "contract'' there are legal issues in enforcing it upon a married couple. Only a "nikah'' or a marriage under Islam is a contract but that is under the Muslim Personal Law and has its own rules related to mehr and maintenance.