Pre-nuptial Agreement (pil).docx

OBJECTIVE: The objective of this Public Interest Litigation is to bring to light the need to make Prenuptial Agreements enforceable in India. Prenuptial agreement is an agreement made by two parties before their marriage which defines ownership and distribution of their assets in case the marriage fails. These agreements offer more certainty in the eventuality that the marriage ends in divorce, separation or death, and are coherent to the concept of marriage in modern India. With a steep escalation in rates of divorce and separations in the country, there is a dire need for such agreements so as to provide maximum security to the married couples and to help them avoid additional emotional trauma due to financial troubles. In the same light, constitutionality of Section 23 and Section 26 of the Indian Contract Act, 1872 is also challenged. NEED: In India, marriage is treated as a religious and sacred bond formed between the husband and the wife and is expected to continue throughout the lifetimes of both the parties. However, in many cases, problems and conflicts overshadow everything and it becomes extremely difficult for two people to continue living together. Many-a-times one party suffers from a breach of trust by the other party and after having invested a number of years in marriage, at times even sacrificing their careers to take care of home and children, with strength to work hard diminishing, these people do not wish to enter into long drawn legal battles to claim their rights. In such cases, a pre-nuptial agreement can come to the rescue of both the parties. ADULTERY: Recently, Supreme Court of India delivered a landmark judgment in the case of Joseph Shine v. Union of India1 wherein a five-judge Bench unanimously struck down Section 497 of the Indian Penal Code (IPC), thereby decriminalizing adultery. It struck down Section 497 IPC on the grounds that it violates Articles 14, 15 and 21 of the Constitution. The Bench held that the section is an archaic and paternalistic law, which infringes upon a woman's autonomy and dignity. Former Chief Justice Dipak Misra while writing this famous judgment mentioned that adultery was enacted at a time when marriage was considered a sacrament and a man could marry any number of women. However, we have come very far and retaining adultery as an offence does not make sense now. In the same light, gone are the days when a marriage would sustain throughout a lifetime. Even in small towns and semi-urban areas, the cases of divorce and separation are on the rise while this phenomenon was unheard of in 1970s.2 With adaptation of various 1

2018 SCC OnLine SC 783 https://timesofindia.indiatimes.com/life-style/relationships/love-sex/Divorce-on-the-rise-inIndia/articleshow/2206996.cms 2

progressive judgments such as abolishment of adultery, it is time to take one step further and welcome prenuptial agreements as they are the need of the present day India and can play a benevolent role in minimizing disputes over finances post-divorce and provide for a hassle free process in case a marriage dos not workout.

NRIs AND PRENUPS: The problem of NRI marriage frauds in India is something that everyone has heard of. Every year, thousands of women file complaints regarding desertion by their overseas spouse. Major issues that arise out of these marriages are because of the laws that: 1. Marriage between an NRI and an Indian woman which has taken place in India may not be annulled by any foreign court. 2. In the case of divorce, adequate alimony should be paid to the wife out of the property of the husband. 3. The decree of Indian court should be made executable in foreign courts both on the principle of comity by entering into reciprocal agreements and notify them under section 44A of the Civil Procedure Code which talk about binding nature of foreign decree i.e.; it is executable as it would have been a decree passed by that court.3 Allowing pre-nuptial agreements can provide a tool to these suffering women in case they are deserted by their NRI grooms. Maneka Gandhi, Union Minister for Women and Child Development, had proposed to make prenups a valid contract with respect to Indian marriages way back in 2015 The proposal also highlighted that Marriages taking place between Non Resident Indians (NRI), especially must come under the purview of prenuptial agreement being enforced in India. However, she met with a stumbling block from bureaucrats from her own department, who have prevailed upon her that to introduce this concept into Hindu law, legislators will have to accept that Hindu marriage is purely a contract and strip it of its sacramental traditions. INTERNATIONAL STATUS: There are various countries around the globe where a pre-nuptial agreement is seen as valid such as Australia, Brazil, Canada, China, Finland, Germany, Greece, New Zealand, Russia, South Africa, Spain, Sweden, Switzerland, Taiwan, Thailand , Turkey etc. The Hague Convention on the law applicable to Matrimonial Property Regimes also 3

Neeraja Sharaph vs. Jayant V. Saraph 1994 SCC (6) 461.

authorizes pre-nuptial agreements and therefore all the parties to the convention such as Austria, France, Portugal, Luxemburg etc also recognize pre-nuptial agreements.4 In other countries such as Singapore and Hong kong, prenuptial agreements are not enforceable but are taken into account as a factor of varying importance when looking at a case. A landmark case in this regard is the UK case Radmacher v Granatino5 wherein a German wife, heir to a large fortune from a paper industry, and her French husband, a banker. The parties married in London 1998, having signed a prenuptial agreement before a notary in Germany three months previously. This agreed that neither party would benefit from the property of the other on divorce. The decision to get a prenup was instigated by Ms Radmacher after her father insisted that her inheritance be formally protected. Ms Radmacher was adamant that this prenup was proof that the pair was marrying for love, not money. The pair separated in October 2006 after eight years of marriage. In 2003, Mr Granatino had left his job at JP Morgan & Co where he was earning £120,000 per annum to pursue an academic career in biotechnology at Oxford University with a salary of £30,000. During the divorce proceedings in June 2008, Mr Granatino applied for financial relief at the High Court. He was awarded a total of £5,560, 000 to cover annual income for life, a house in London and Germany so that he could see his children and periodical payments for each child. The judge, Mrs Justice Baron, did take the prenup into account but, since Mr Granatino did not have legal advice when he agreed to it and the couple had since had children, she determined that its importance had diminished. Ms Radmacher successfully appealed this decision, stating that the prenup should have been given decisive weight and therefore that his fathering requests could be acknowledged but his long-term needs could not be funded by her family inheritance. Mr Granatino appealed this decision at the Supreme Court and was dismissed. Ultimately, the court held that the prenuptial agreement was legally enforceable and Mr Granatino had no right to renege on his promise, as set out in the document. The Supreme Court ruled that both pre and post-nuptial agreements have ‘magnetic importance’ and spouses should be held to them unless it can be demonstrated that they are unfair in either how they were created of the effect that they would have. The understanding between Ms Radmacher and Mr Granatino when they married was respected and Ms Radmacher’s inheritance therefore protected.

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https://www.international-divorce.com/prenuptial-agreements.htm [2010] UKSC 42

EFFORTS BY GOVERNMENT IN RECENT YEARS: Ministry of Women and Child Development has time and again put in efforts in this regard and a draft proposal on allowing enforceability of pre-nuptial agreements in India mentioned that “A pre-nuptial agreement, which has legal validity and is binding will speed up the process of settlement and save the separating husband and wife from the agony of uncertainty of settlement.”6 BENEFITS OF RECOGNISING PRE-NUPTIAL AGREEMENTS: In our country family laws are pretty much biased towards females which can lead to misuse of such laws. Maintenance and Alimony are calculated by taking into account the assessing income and property of the parties while the court also considers the lifestyle, status, health, age, liabilities, support and education of children and other responsibilities of the parties and since most of these cases are filed by women, it can be a financial burden on the husband. By having a prenuptial agreement, parties can decide this amount beforehand and strive for an equal distribution which will be favorable to both the parties. It also ensures that the parties are relieved from carrying the burden of each other’s financial obligation post-breakdown. Also, a prenuptial agreement can be tailored according to the needs of parties with clauses such as sunset clause’ which states the expiry of a prenuptial agreement and the ‘infidelity clause’ which sets out additional conditions that can be added/amended if it is discovered that the spouse is cheating. Therefore providing a right to a spouse in case of a breach of trust. Also certain other matters such as financial well-being of children from a previous marriage can also be protected. In addition, prenuptial agreements enable an individual to protect a family business or specific piece of property from possible claims by a former spouse.

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“ https://www.thequint.com/news/india/exclusive-or-prenup-vital-to-safeguard-womens-interests-mwcd”