PRENUPTIAL AGREEMENT BOOK FORMAT $.pdf

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PRE-NUPTIAL
CONTRACT & ITS LEGAL VALIDITY IN INDIA
- A CRITICAL ANALYSIS
-ADV CHERRY KUSHWAHA

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ACKNOWLEDGEMENT
I would like to express my gratitude to my prof. Benny Paul,
for the useful comments, remarks and engagement through
the learning process of this master thesis.
Furthermore I would like to thank my brother, Advocate
Gagandeep Singh, for introducing me to the topic as well
for the support on the way. Also, I like to thank the
participants in my survey, who have willingly shared their
precious time during the process of interviewing.
I would like to thank my loved ones, who have supported me
throughout entire process, both by keeping me harmonious
and helping me putting pieces together. I will be grateful
forever for your love.

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Also I would like to take this opportunity to express my
heartfelt indebtedness, to my guide, Prof Benny Paul, for
believing in me, and allowing me to pull off, such a
controversial and less explored topic.
Last, but not the least, thank you mummy, for supporting me
tirelessly throughout my educational journey.
Though I have tried my best, to make this dissertation worth
reading, but if I lack anywhere or have left any loopholes,
my advance apologies for the same.
Wish you all an interesting reading ahead.

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PREFACE
This dissertation, tries to cover the theoretical backdrop of
the Prenuptial Agreements, in different Countries, and tries
to find out the ground, it holds in India today.
With increasing cases of malafide marriages, enhanced
divorce rates, and the highly increasing popularity of
Prenuptial Agreements worldwide, this Dissertation, is an
attempt to cover the practical ground work, and explore the
field realities, of survey.
The charts, as tabulated, have been based on the inventory
reports, attached at the end, and simple methods of
calculation, have been used, without the Pie Square Method.
This dissertation, aims to analyse, the public opinion on this
burning issue, and along with, also attempts to cover the

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relevant matrimonial laws applicable, and the landmark
judgments of Honourable Supreme Court, High Courts &
other District Courts.
The trends for different age groups, have been categorized,
and the religious disparities, have also been highlighted.
It is noteworthy, that this dissertation, tries to use the
Projective and Collative Processes, instead of delving into
the Explicative Process.
Having said that, just as the research process and law, both
neither operate in vacuum, nor do they function in seclusion,
the methodology used in this project, is also a combination
of different processes and approaches.

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LIST OF ABBREVIATIONS
SSRGA - Schwartz Sladkus Reich
Greenburg Atlas (LLP)
CEO - Chief Executive Officer
BMI - Body Mass Index
MoU - Memorandum of Association
IT ACT - Information Technology Act
DVA - Domestic Voilence Act
HMA - Hindu Marriage Act

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ERISA - Employee Retirement Income
Security Act
REA - Real Estate Authority
UPMAA - Uniform Premarital & Marital
Agreements
UPAA - Uniform Premarital Agreement Act
ULC - Uniform Law Commission
AAML - American Academy of Matrimonial
Lawyers
CRPC - Code of Criminal Procedure
CPC - Code of Civil Procedure

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TABLE OF CASES
(IN ALPHABETICAL ORDER)
B
Badshah v Urmila Badshah Godse and another (2014) 1
SCC 188,
C
Central Bank of India Ltd v Ram Narain AIR 1955 SC 36).
Chanmuniya v Chanmuniya Virendra Kumar Singh
Kushwaha and another (2011) 1 SCC 141
D
D Velusamy v D Patchaiammal (2010)10 SCC 469,
Devendra Deshprabhu v. Sita Devendra Deshprabu
I
Indra Sarma v VKV Sarma AIR 2014 SC 309
J

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Jasbir Kaur Sehgal v District Judge, Dehradun and others
(1997) 7 SCC 7,
K
Kedar Pandey v Narain Bikram Sah [1965] 3 SCR 793)
L
Louis De Raedt v UOI and others (1991) 3 SCC 554)
M
Ms Kashmira Kale v Mr Kishore Kumar Mohan Kale Writ
Petition No 1242 of 2010)
O
Obergefell v. Hodges
R
Ruchi Majoo vs Sanjeev Majoo AIR 2011 SC 1952,
Radmacher v Granatino
S
Sh Bharat Hegde v Smt Saroj Hegde, 140 (2007) DLT 16
SR Batra v Taruna Batra (2007) 3 SCC 169.
Shamima Farooqui v Shahid Khan (2015) 5 SCC 705,

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Somabhai Bhatiya v State of Gujarat and others (2005) 3
SCC 636
Smt Satya v Teja Singh [1975] 2 SCR 1971).
V
Vinny Parmvir Parmar v Parmvir Parmar (2011) 13 SCC
112,
Vimalben Ajitbhai Patel v Vatslabeen Ashokbhai Patel and
others (2008) 4 SCC 649,
Y
Y Narasimha Rao and others v Y Venkata Lakshmi and
others (1991) 3 SCC 451,

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CHAPTER-1 CONCEPT OF PRE-NUP
PRE- NUPTIAL DEFINED
Prenuptial agreement, or premarital agreement which may
commonly be referred to as a prenup), is a
written contract entered into by a couple prior to marriage or
a civil union that enables them to select and control many of
the legal rights they acquire upon marrying, and what
happens when their marriage eventually ends by death or
divorce1
(1). Couples enter into a written prenuptial
agreement to supersede many of the default marital laws that
would otherwise apply in the event of divorce, such as the
laws that govern the division of property and retirement
benefits and savings, and the right to seek alimony (spousal
support) with agreed-upon terms that provide certainty and
clarify their marital rights. A premarital agreement may also
contain waivers of a surviving spouse’s right to claim
an elective share of the estate of the deceased spouse.2
1
Merriam-webster dictionary
2
Quoted by Adv Gagandeep Singh

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In some countries, including the United States, Belgium and
the Netherlands, the prenuptial agreement not only provides
for what happens in the event of a divorce, but also to protect
some property during the marriage, for instance in case of a
bankruptcy. Many countries,
including Canada, France, Italy, and Germany,
have matrimonial regimes, in addition to, or some cases, in
lieu of prenuptial agreements.
Postnuptial agreements are similar to prenuptial agreements,
except that they are entered into after a couple is married.
When divorce is imminent, postnuptial agreements are
referred to as separation agreements.

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Whereas, not much of the tabulations, charts, and
other research work is available on this sensitive topic
of pre-nups in India, it is humbly submitted, that the
researcher has conducted a humble questionnaire,
with a test group of 100 people. The responses
accordingly have been tabulated and the inventories
attached at the end. Kindly the charted data, be
considered along with the theoretical part, as part of
this meager research.

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Chart (1)
The above data is based on the inventories filled by the
sampling sampling population, and percentages of
awareness, have accordingly been recorded. Highest
awareness age group turned out to be from 35-45 years, with
29% awareness level, out of sample 25, from each age group.
* no discretion based on the educational levels has been
covered in this particular chart, the bifurcations are recorded
solely on age criterion.
Awareness Percentage of
Tricity, abpout the concept of
Pre-Nuptials
below 18
years
18-25 years
25-35 years

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Chart (2)
After fully explaining the concept of pre-nuptials to the test
group, they were enquired if they saw a brighter future for it,
in india, in the coming 10 years. The chart above, elucidates
their responses, which records maximum positivity for the
concept, between the age group of 25-35 years and 35-45
years, with 80% and 70% affirmations respectively.
* no discretion based on the educational levels has been
covered in this particular chart, the bifurcations are recorded
solely on age criterion.
18-25 years25-35 years35-45 years45 years &
above
Expected progress
and acceptance…

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Chart (3)
For the next question, the sample group was divided on
gender basis, and each gender was further categorized as
below 35 years and above. They were asked about the
institution of marriage, in Indian context, and the future of
same. The answers were high in favour of corrosion of the
sacred institution. The test group, as confirmed their belief,
in corrosion of the institution affirmatively, has hereby been
tabulated.
• males -
below 35
years
• females -
below 35
years
• males-
above 35
years
• females-
above 35
years
49% 53%
34%
78%

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19 INTERESTING PRENUPTIAL AGREEMENT
STATISTICS- TERNATIONALLY
A prenuptial agreement occurs when a couple is about to be
married, but one or both of the spouses has assets that they
wish to protect from a future divorce. The agreement is
signed before the marriage occurs and is a basic outline that
agrees to certain stipulations regarding the assets that need
to be protected.3
63% of divorce attorneys say that they have seen an
increase in prenuptial agreements in the last three years.
PRENUPTIAL AGREEMENT
Traditionally it has been men who have been requested
prenuptial agreements, but that isn’t the case today. 46% of
divorce attorneys noted in a recent survey that they’ve
3
Mr Brandon Gaille’s blog

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noticed a dramatic increase in the number of women who
have initiated the requests for a prenup.
• 15% of people who have been through a divorce
regret not having a prenuptial agreement in place.
• 44% of singles believe that having a prenup is a good
idea before entering into a marriage.
• The three top reasons why a prenuptial agreement is
put into place is to provide protection of separate
property, alimony/spousal maintenance, and the
division of property.
• A well-drafted pre-nup can ‘override’ both
Community Property law and Equitable Distribution
State law.
Is there a valid argument in saying that a couple who gets a
prenuptial agreement is expecting a divorce to occur and so
they won’t try to work through a marriage? Not really. A
prenuptial agreement is more about protecting oneself
against the worst case scenario. Far too many times there
have been instances where the wealthier half of a married

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couple before a marriage occurs comes out of a divorce
living below the poverty line. If there are important assets
that someone has, a prenup makes sense to put into place.4
LOVE JUST DOESN’T ALWAYS LAST
• Prenuptial agreements aren’t just about protecting
real estate or accumulated assets. With divorce rates
in double digit percentages in most countries around
the world, there are also children and their assets that
must be protected.
• A prenup that has been well drafted can even
override states that have community property laws or
equitable distribution requirements.
• Hidden assets are one of the most common reasons
why a prenuptial agreement is thrown out of court.
• Agreements need to be a legal document to be
considered valid in most jurisdictions. Steven
Spielberg found this out the hard way and settled for
4
Investopdedia.com

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$100 million after a prenup on a napkin was
considered invalid.
• Prenuptial agreements cannot predetermine if a
parent will be able to have custodial or visitation
rights, nor can it stipulate that a child be raised within
a particular religion or faith.
• Only 3% of people who have a spouse or are
planning on getting married in the near future have a
prenuptial agreement.
• Married couples who don’t pool all of their resources
are more than twice as likely to wind up with marital
problems that can include a divorce.
A prenuptial agreement doesn’t have to be a bad thing.
Sometimes all you’ve got to do is throw everyone into a
room, have an honest conversation about the future, and a
couple will be able to come to a mutually beneficial
agreement. Are there more risks in a marriage that has a
prenuptial agreement? There may be as there is less of a
financial risk to abandon a marriage, meaning there is less of

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an incentive to work on it. Does this mean every marriage
that has a prenuptial agreement is bound to fail? Of course
not. After all, a vast majority of people don’t enter a marriage
expecting it to fail. Otherwise what would be the point?5
5
Personal Opinion of Reasearcher

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CHAPTER- 2 MARRIAGE UNDER INDIAN
LAWS
UNDERSTANDING THE CONCEPT OF MARRIAGE
& FAMILY LAW IN INDIA:
MARRIAGE AND DIVORCE
India is a secular country and a wide number of religions are
freely practised. The major religions practised include
Hinduism, Islam and Christianity. People solemnise
marriages in accordance with religious rituals and
ceremonies, which are mostly codified by statutory personal
laws. Therefore, the matrimonial laws in India, including
laws on marriage, divorce and other connected issues, are
essentially governed by the personal laws of the parties
depending on their religion:
• Hindu: Hindu Marriage Act 1955.
• Muslim: Muslim marriage is a contract under
Muslim law.
• Christian: Indian Christian Marriage Act 1872 and
the Divorce Act 1869.
• Parsi: Parsi Marriage and Divorce Act 1936.

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In addition, the Special Marriage Act 1954 applies to all
persons of all religions. This is a civil legislation and parties
from all religions, caste or community can elect to marry
under it. A divorce would then be governed by the Special
Marriage Act 1954.
All these laws apply throughout India (except for in Jammu
and Kashmir, and Goa).
LAWS RELATED TO CHILDREN & THEIR
GUARDIANSHIP:
WELFARE OF CHILDREN
Personal laws governing marriage contain provisions to
ensure the welfare of children born in wedlock. There is a
general law, the Guardian and Wards Act 1890, which
applies to all communities.
The Guardian and Wards Act 1890 is a complete code
defining the rights and liabilities of guardians and wards. It
applies to minor children of any caste and creed. However,
while approving and declaring a person as a minor's

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guardian, the court will also consider the minor's personal
law. The Guardian and Wards Act 1890 aims to protect the
minor child's person and property.
COURT SYSTEM
The Family Court Act 1984 provides for the establishment
of Family Courts with a view to promote conciliation, and
secure speedy settlement of, disputes relating to marriage
and family affairs, and for matters connected with them. The
Family Courts hear matters relating to marriage, marital
breakdown and the welfare of children. These courts are trial
courts and are presided over by Additional District Judges
which undertake trials and review evidence. The Family
Courts follow the Civil Procedure Code.6
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• Hindu: Hindu Marriage Act 1955.
• Muslim: Muslim marriage is a contract under Muslim law.
• Christian: Indian Christian Marriage Act 1872 and the Divorce
Act 1869.
• Parsi Marriage and Divorce Act 1936.
• The Guardian and Wards Act 1890.
• The Family Court Act 1984.

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CHAPTER-3 DIVORCE UNDER INDIAN
LAWS
UNDERSTANDING THE CONCEPT OF DIVORCE &
SEPARATION, BEFORE GETTING TO KNOW
MORE ABOUT PRE-NUPS INDIA
All Indian matrimonial statutes contain jurisdictional rules.
Two matters are relevant regarding jurisdiction:
• The place in which the petition or suit in a
matrimonial cause is filed.
• The court in which the petition or suit in a
matrimonial cause should be filed.
Whether a court has jurisdiction depends on the:
• Parties' domicile.
• Place of solemnisation of marriage.
• Marital residence and the residence of the respondent
(or, if the respondent resides outside India, where the
petitioner resides).

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Jurisdictional requirements are the same under the Hindu
Marriage Act 1955 and the Special Marriage Act 1954. A
divorce petition can be presented to the district court within
the local limits of whose original civil jurisdiction the:
• Marriage was solemnised.
• Respondent, at the time of the presentation of the
petition, resides.
• Parties to the marriage last resided together.
• Wife resides on the date of presentation of the
petition (if she is the petitioner).
• Petitioner resides at the time of the presentation of
the petition, in a case where the respondent, at that
time, either:
o resides outside the territories to which the acts
extend; or
o has not been heard of as being alive for a period
of seven years or more by those persons who
would naturally have heard of him/her if he/she
were alive.

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The applicability of the Special Marriage Act is not
restricted to Indians. The parties need not be domiciled in
India to solemnise their marriage under the Special Marriage
Act.
Under the Indian Divorce Act 1869, a petition in a
matrimonial cause can be presented in the court of the
district judge within the local limits of whose ordinary
jurisdiction either the:
• Husband and wife reside.
• Husband and wife last resided together.
Where a number of courts have jurisdiction, a party can
choose one of them. Where a court's jurisdiction is
questioned, preference is generally given to factors that
support its jurisdiction.
PROPERTY
A women can claim "right to reside" in her matrimonial
home under the Protection of Women from Domestic
Violence Act 2005. Cases under this Act can be filed in the
court of the place where the aggrieved woman resides.

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CHILDREN
Disputes over children are adjudicated by the courts with the
closest contact with the child. Therefore, the court of the
place where the child resides will assume jurisdiction for any
disputes over custody and other children-related issues.
DOMICILE AND HABITUAL RESIDENCE
HOW DO THE CONCEPTS OF DOMICILE AND
HABITUAL RESIDENCE APPLY IN RELATION TO
DIVORCE, FINANCIAL ARRANGEMENTS, AND
CHILDREN?
DOMICILE
There are two types of domicile:
• Domicile by origin. An individual automatically
acquires the domicile of the country in which he/she
is born. This remains his/her domicile until and
unless they acquire a new domicile.

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• Domicile by choice. Domicile of choice is that
which the individual has elected and chosen for
himself to replace his/her domicile of origin.
In relation to domicile by choice, a man's domicile is the
place in which he has decided himself and his family will
live, with the intention of making it a permanent home. The
Apex Court has acknowledged the concept of domicile as
established under English law (Central Bank of India Ltd v
Ram Narain AIR 1955 SC 36). It held that the two constituent
elements that are necessary under English law for the
existence of domicile are:
• A residence of a particular kind. The residence need
not be continuous but it must be indefinite and not
purely fleeting.
• An intention of a particular kind. There must be a
present intention to permanently reside in the country
where the residence has been taken up.

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An intention of permanent residence proves a change of
domicile (Kedar Pandey v Narain Bikram Sah [1965] 3 SCR
793). The test for establishing change of domicile is that a
person acquires a new domicile when he/she settles in a new
country with the intention of making it his/her permanent
home and continuing to reside there permanently (Louis De
Raedt v UOI and others (1991) 3 SCC 554).
The Hindu Marriage Act 1955 extends to the whole of India,
except the state of Jammu and Kashmir, and also applies to
Hindus domiciled in the territories to which the Act extends
but who are outside of those territories (section 1(2), Hindu
Marriage Act 1955). The Hindu Marriage Act 1955 applies
to persons who are not residing in India but continue to be
domiciled in India.
RESIDENCE
The concept of habitual residence is not defined but is
recognised by Indian courts. Indian statutes require
residence as a ground for jurisdiction. The Supreme Court
has held that residence, for the purposes of the application of
Indian matrimonial statutes, does not mean a temporary

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residence but a habitual residence or a residence which is
also intended to be permanent (Smt Satya v Teja Singh
[1975] 2 SCR 1971).
The concept of residence is important in India, as the courts
to which a divorce petition under the matrimonial statutes
can be presented include place where either the:
• Parties to the petition last resided.
• Respondent (or the petitioner if she is the wife)
resides.
DIVORCE
In the landmark judgment in Y Narasimha Rao and others v
Y Venkata Lakshmi and others (1991) 3 SCC 451, it was held
that marriages that take place in India can only be dissolved
under either the customary or statutory law in force in India.
Therefore, the only law that can apply to matrimonial
disputes is the one under which the parties are married.
However, confusion occurs in relation to parties who are
domiciled abroad but came to India for the sole purpose of
solemnisation of marriage. When these parties, who are

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domiciled abroad but were married in India under Indian
laws, enter into matrimonial disputes, it is unclear whether
the divorce petition is maintainable in India.
The Supreme Court of India has not adjudicated on this
issue. The main view emerging from the views of the High
Courts is that held by the Bombay High Court that domicile
in India is held to be a necessary requirement for the
application of Indian matrimonial statutes (Ms Kashmira
Kale v Mr Kishore Kumar Mohan Kale Writ Petition No
1242 of 2010). However, this view does not bind other high
courts. For the purposes of jurisdiction, Indian domicile of
one of the parties is sufficient to confer jurisdiction on the
Indian court.
CHILDREN
In relation to child custody, the child's interests and welfare
is of primary importance. The issues regarding child custody
are adjudicated by the courts in whose jurisdiction the child
and the person closest with the child resides. Indian courts
can decide on the issue of the custody of a child who is a

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foreign citizen only if the child is within the territorial
jurisdiction of the Indian courts.
The Supreme Court of India has held that even where a
foreign court has taken a particular view on any aspect
concerning the welfare of a minor, the Indian courts should
objectively and independently review the matter. In Ruchi
Majoo vs Sanjeev Majoo AIR 2011 SC 1952, it was held by
the Supreme Court of India that the judgment by a foreign
court should only be taken as input for its final adjudication.
In this case, the Apex Court allowed the trial court in India
to hear the mother's application for custody of the child.
Indian courts believe in the comity of law. However, priority
is given to the welfare of the child

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SOURCED THROUGH:7
Separate list of cases at the beginning has been attatched
alphabetically8
7
• Protection of Women from Domestic Violence Act 2005
• the Indian Divorce Act 1869
• Hindu Marriage Act 1955
• Special Marriage Act 1954
8
Separate list of cases at the beginning has been attatched alphabetically

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We ideally envisage the concept of togetherness forever in
our Indian society specially. unfortunately recent
developments, show the graph otherwise. Disagreements,
clashes, disputes, are the enviable elements of marriage
today. Can pre-nups? Be the panacea of it all????

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PRE- AND POST-NUPTIAL AGREEMENTS
VALIDITY OF PRE- AND POST-NUPTIAL
AGREEMENTS
TO WHAT EXTENT ARE PRE- AND POST-NUPTIAL
AGREEMENTS BINDING?
The law concerning pre- and post-nuptial agreements is still
controversial and not fully evolved. Marriages are
considered to be a sacred alliance that cannot be broken or
dissolved as a civil contract, except with regard to the strict
provisions of the personal laws and civil law.
The concept of a pre- or post-nuptial agreement is not
defined in any of the personal laws. In India, a pre- and post-
nuptial agreement is considered to fall into the category of a
contract. Therefore, a legally binding pre-nuptial or post-
nuptial agreement must satisfy the conditions of a valid
contract under the Indian Contract Act 1872 (including that
it must not be against public policy).
A prenuptial agreement may be an agreement which sets out
terms of settlement outlining the distribution of assets,
liabilities and issues relating to the custody of children, in

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the event that the marriage breaks down, which can maybe
be relied upon to put an end to the dispute and for the parties
so that they can part ways amicably. Other matters that are
addressed could include:
• Permanent alimony and maintenance to be provided
to wife or husband in case the marriage fails.
• The issue of custody of the children, including the
care and maintenance by both parties and the
proportional distribution of responsibility, and the
liabilities of both for any children born to them out
of wedlock.
• The terms and conditions relating to the financial
contribution of self as well the other partner in
marriage.
However, pre-nuptial agreements in India are not binding or
executable in a court of law. The courts may take a
prenuptial agreement into consideration for understanding
the intention of the couple and this may help the courts in
reaching a proper settlement in cases for divorce.

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Courts uphold such agreements where the parties enter into
an agreement post-breakdown of marriage, in order to
amicably settle family issues.
However, the above view is only applicable for marriages
under Hindu law. Muslim marriages are in the form of legal
contract and mahr, which is offered as consideration to the
bride at the time of marriage, and can be viewed, in the same
light as a pre-nuptial agreement.
DIVORCE, NULLITY AND JUDICIAL SEPARATION
RECOGNITION OF FOREIGN MARRIAGES /
DIVORCES ARE FOREIGN
MARRIAGES/DIVORCES/CIVIL PARTNERSHIPS
RECOGNISED?
MARRIAGES
Indian courts recognise foreign marriages conducted under
and in compliance with the laws of a foreign jurisdiction.
Couples residing in India irrespective of their nationality can
seek legal remedy under some statutes which provide
protection to women against domestic violence or address

40
custody related issues. However, they cannot divorce in
India, as divorce is available under the personal matrimonial
laws in India which are not applicable to foreigners.
DIVORCES / ANNULMENT9
Indian courts recognise divorce/annulment decrees granted
by foreign courts. These decrees by foreign courts are
considered to be valid and binding for all purposes, if they
satisfy the conditions provided in section 13 of the Civil
Procedure Code. Divorces granted by a foreign court are
recognised in India if they satisfy the provisions of section
13 of the Civil Procedure Code. A foreign judgment is
conclusive on any matter that has been directly decided on
between the same parties or between parties who are
litigating under the same title except where:
• It has not been pronounced by a court of competent
jurisdiction.
• It has not been given on the merits of the case.
9
Section 13, Civil Procedure Code

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• It appears on the face of the proceedings to be
founded on an incorrect view of international law or
a refusal to recognise the law of India in cases in
which that law is applicable.
• The proceedings in which the judgment was obtained
are opposed to natural justice.
• It has been obtained by fraud.
• It sustains a claim founded on a breach of any law in
force in India.
CASE LAW
The Supreme Court has held that Indian courts will not
recognise a foreign divorce decree if the divorce petition is
not based on the substantive and jurisdictional grounds
provided for divorce under the Hindu Marriage Act 1955 and
one of the nine grounds of divorce which must be satisfied
(Y Narasimha Rao and others v Y Venkata Lakshmi and
others (1991) 3 SCC 451).
The Supreme Court held that a foreign divorce decree will
not be recognised by the Indian courts where all of the

42
following apply (Y Narasimha Rao and others v Y Venkata
Lakshmi and others (1991) 3 SCC 451):
• A party only technically satisfies the requirement of
residence in a foreign country with only the purpose
of obtaining the divorce.
• That party is neither domiciled in that state nor has
an intention to make it their home.
• There is no substantial connection with the forum.
In Smt Satya v Teja Singh [1975] 2 SCR 1971, the Supreme
Court derecognised the decree of divorce of the foreign
country on the ground that one party obtained the divorce
decree by fraud on the foreign court by representing
incorrect jurisdictional facts. The Apex Court held that the
concept of residence does not include temporary residence
for the purpose of obtaining a divorce.
It is held that marriages which take place in India can only
be dissolved under either the customary or statutory law in
force in India. Therefore, when a foreign judgment is

43
founded on a jurisdiction or on a ground not recognised by
such law, it is in defiance of the law and is unenforceable in
India. For the same reason, such a judgment is also
unenforceable under clause (f) of section 13 of the Civil
Procedure Code, since such a judgment is in breach of the
matrimonial law in force in India.
The Supreme Court has also held that "the jurisdiction
assumed by the foreign court as well as the grounds on which
the relief is granted, must be in accordance with the
matrimonial law under which the parties are married. The
exceptions to this rule may be:
• Where the matrimonial action is filed in the forum
where the respondent is domiciled or habitually and
permanently resides, and the relief is granted on a
ground available in the matrimonial law under which
the parties are married.
• Where the respondent voluntarily and effectively
submits to the jurisdiction of the forum as discussed
above and contests the claim, which is based on a
ground available under the matrimonial law under
which the parties are married.

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• Where the respondent consents to the granting of
relief, although the jurisdiction of the forum is not in
accordance with the provisions of the matrimonial
law of the "parties"
CHAPTER-4 DIVISION OF ASSETS IN
DIVORCE/SEPARATION
DISTRIBUTION OF ASSETS, AS PER EXITING
LAWS:
Matrimonial laws are lacking in provisions relating to the
settlement of the spouses' properties and the matrimonial
home. Section 27 of the Hindu Marriage Act 1955 provides
only for the settlement of property presented jointly to the
husband and wife at or about the time of marriage. It does
not address the issue of settlement of property owned jointly
or separately. This is because there is no concept of
matrimonial property and therefore there is no division of
assets.
Maintenance is available to the wife as well as the husband
as a statutory right on the breakdown of marriage. The courts

45
have very widely interpreted the term "maintenance", to
allocate financial resources and property to the wife. The
courts have powers to award maintenance under the personal
laws, as well as under section 125 of the Criminal Procedure
Code (CrPC) and section 20 of the Protection of Women
from Domestic Violence Act 2005.
QUANTUM OF MAINTENANCE AND DECIDING
CRITERION:
A wife or the husband is only entitled to be awarded
maintenance, permanent or interim. The quantum of
maintenance may vary from case to case and is determined
by the spouse's income. It may usually be up to one-third of
the husband's net income.
It has been held that while considering a claim for interim
maintenance, the court must keep in mind the status of the
parties, reasonable wants of the applicant, and the income
and property of the applicant. The requirements of the non-
applicant, the income and property of the non-applicant and
the other family members to be maintained by the non-
applicant must also be taken into account. While it is

46
important to ensure that the maintenance awarded to the
applicant is sufficient to enable the applicant to live in a
similar degree of comfort as in the matrimonial home, it
should not be so exorbitant that the non-applicant is unable
to pay.
Maintenance awarded cannot be punitive. It should aid the
applicant to live in a similar lifestyle that he or she enjoyed
in the matrimonial home. It should not expose the non-
applicant to unjust contempt or other coercive proceedings.
On the other hand, maintenance should not be so low so as
to make the order meaningless.
While estimating the spouse's income or to get an idea of the
income and lifestyle of the parties, the court can take into
consideration the following factors, among others:10
• Lifestyle of the spouse.
• The amount spent at the time of marriage and the
manner in which marriage was performed.
• Destination of the honeymoon.
10
Harris Family Law

47
• Ownership of motor vehicles.
• Household facilities.
• Facility of driver, cook and other help.
• Credit cards.
• Bank account details.
• Club membership.
• Insurance premium paid.
• Property or properties purchased.
• Rental income.
• Amount of rent paid.
• Amount spent on travel/holiday.
• Locality of residence.
• Number of mobile phones.
• Qualification of spouse.
• School(s) where the child or children are studying
when the parties were residing together.
• Amount spent on fees and other expenses incurred.

48
• Amount spent on extra-curricular activities of
children when the parties were residing together.
• Capacity to repay
CHAPTER-5 RELIGIONS AND RULES
INDIAN COURTS ON MAINTENANCE AND ASSET
DIVISION
As there is no concept of matrimonial property, there is no
concept of division of assets. However, the concept of
"maintenance" has been widely interpreted by the Indian
courts. The husband must provide for/maintain the wife in
accordance with the same status that the wife enjoyed during
the marriage

49
Maintenance is available as a statutory right by way of
independent relief, both under civil and criminal laws, and
also as an ancillary relief.
HINDUS
Maintenance to Hindus is provided for under:
• Section 24 (maintenance pending suit) and section 25
(permanent alimony and maintenance) of the Hindu
Marriage Act 1955.
• Section 18 of the Hindu Adoptions and Maintenance
Act 1956.
MUSLIMS
A wife is entitled to maintenance from her husband after the
breakdown of the marriage. A divorced woman is entitled to:
• A reasonable and fair provision and maintenance to
be made and paid to her within the period of iddat by
her former husband.11
11
(Section 3, Muslim Women (Protection of Rights on Divorce) Act
1989.)

50
• If she maintains the children born to her before or
after her divorce, a reasonable provision and
maintenance to be made and paid by her former
husband for a period of two years from the respective
dates of birth of such children.
• An amount equal to the sum of mahr or dower agreed
to be paid to her at the time of her marriage or at any
time after that according to Muslim law.
• All the properties given to her before or at the time
of marriage or after the marriage by her relatives,
friends, husband and any relatives of the husband or
his friends.
CHRISTIANS
Alimony pending the suit of divorce can in no case exceed
one-fifth of the husband's average net income for the three
years preceding the date of the order, and continues until the
decree for dissolution of marriage or of nullity of marriage
is made absolute or is confirmed (section 36, Indian
Christian Marriage Act 1872). Section 37, regarding
permanent maintenance, states that the court will order the

51
husband to secure to the wife such gross sum of money, or
such annual sum of money, for any term not exceeding her
own life, to the satisfaction of the court, after holding in
consideration all of the following:
• The wife's fortune (if any).
• The ability of the husband to pay.
• The conduct of the parties.
There is a provision for interim and permanent maintenance.
The right to claim maintenance extends until remarriage.
The Muslim Women (Protection of Rights on Divorce) Act
1989 was enacted to codify and regulate the obligations of
the Muslim husband to pay maintenance to the divorced
wife. However, a controversy arose as to the time period for
which a Muslim husband is obliged to pay maintenance to
the divorced wife. The Supreme Court in the judgment
of Danial Laitifi v Union of India AIR 2001 SC 3958, held
that a Muslim husband is liable to make reasonable and fair
provision for the future of the divorced wife, which
obviously includes her maintenance. Such a reasonable and
fair provision extending beyond the iddat period must be

52
made by the husband within the iddat period in terms of
section 3(1)(a) of the Muslim Women (Protection of Rights
on Divorce) Act 1989.
The liability of a Muslim husband to his divorced wife
arising under section 3(1)(a) of the Act to pay maintenance
is not confined to the iddat period.
A divorced Muslim woman who has not remarried and who
is not able to maintain herself after the iddat period can
proceed as provided under section 4 of the Muslim Women
(Protection of Rights on Divorce) Act 1989 against her
relatives, who are liable to maintain her in proportion to the
properties which they inherit on her death, according to
Muslim law, including her children and parents. If any of the
relatives are unable to pay maintenance, the magistrate may
direct the State Wakf Board, established under the Act, to
pay that maintenance.
PROMINENT INDIAN CASE LAWS ON SPOUSAL
MAINTENANCE:
The concept of maintenance has evolved. Previously, Indian
courts awarded low maintenance and the concept was more

53
of survival rather than the right to live in the same lifestyle
as the husband. However, with changing times, the Indian
courts have been awarding maintenance in accordance with
the status and lifestyle in which the parties lived prior to the
commencement of marital dispute.
In Vinny Parmvir Parmar v Parmvir Parmar (2011) 13 SCC
112, the Supreme Court held that the quantum of
maintenance depends on the husband's status, among other
things. It was held that the court must consider the:
• Parties' status and respective needs.
• Husband's capacity to pay, having regard to
reasonable expenses for his own maintenance and
others whom he is obliged to maintain under the law
and statute.
The courts also takes note of the fact that the amount of
maintenance fixed for the wife should be such that she can
live in reasonable comfort considering her status and mode
of life she was used to live when she lived with her husband.

54
However, the amount cannot be excessive or affect the living
conditions of the other party.
In Sh Bharat Hegde v Smt Saroj Hegde, 140 (2007) DLT
16 the Delhi High Court observed that the relevant
considerations to be taken into account at the time of
assessing maintenance claims are the:
• Status of the parties.
• Reasonable wants of the claimant.
• Independent income and property of the claimant.
• Number of persons the non-applicant has to
maintain.
• Amount that should aid the applicant to live in a
similar lifestyle as he or she enjoyed in the
matrimonial home.
• Non-applicant's liabilities.
• Provision for food, clothing, shelter, education,
medical attendance, treatment and so on of the
applicant.

55
• Payment capacity of the non-applicant.
Equally, as is often the case, some guesswork is used when
estimating the income of the non-applicant, if there is
undisclosed or incorrect disclosed information. It was held
that maintenance awarded cannot be punitive but should aid
the applicant to live in a similar lifestyle that he or she
enjoyed in the matrimonial home. It should not expose the
non-applicant to unjust contempt or other coercive
proceedings. On the other hand, maintenance should not be
so low as to make the order meaningless. Unfortunately, in
India, parties during court proceedings often do not
truthfully reveal their income. In the case of self-employed
persons or persons employed in the unorganised sectors (for
example, in a family business), truthful income never
surfaces and tax avoidance is the norm. Therefore, a
determination of interim maintenance cannot be exact. In
which event, the courts take a general view.
In Vimalben Ajitbhai Patel v Vatslabeen Ashokbhai Patel
and others (2008) 4 SCC 649, the Supreme Court of India

56
held that it is the wife's right to be maintained by the
husband.
Although statute provides no set formula for determining the
quantum of maintenance, the Supreme Court of India
in Jasbir Kaur Sehgal v District Judge, Dehradun and others
(1997) 7 SCC 7, held that maintenance should be in
accordance with the lifestyle of the parties.
The right to residence has also been recognised under the
Protection of Women from Domestic Violence Act 2005 and
by the Supreme Court in SR Batra v Taruna Batra (2007) 3
SCC 169.
In Shamima Farooqui v Shahid Khan (2015) 5 SCC 705, the
Supreme Court of India held that the husband is under a
higher obligation when the question of providing
maintenance to the wife and children arises. In the case it
was held that it is the obligation of the husband to maintain
his wife. The husband cannot be permitted to plead that he
is unable to maintain the wife due to financial constraints as
long as he is capable of earning.

57
Chart (4)
The test group was next enquired, if they considered that the
current provisions and laws, suffice the divorce and
settlement issues. The vast majority, from all age groups
expressed extreme dissatisfaction.the same has been
tabulated above.
18-25
YEARS
25-35
YEARS
35-45
YEARS
45 YEARS &
ABOVE
YES
NO
CAN'T COMMENT

59
CHAPTER-6 COHABITATION &
“DOMESTIC RELATIONSHIP”
COHABITATION
There is no legislation which governs the division of
property for unmarried couples if the relationship breaks
down. However, the Protection of Women from Domestic
Violence Act 2005 (Domestic Violence Act) bestows all
benefits on a woman living in a cohabitation arrangement as
available to a married woman, as she is covered within the
term "domestic relationship" under section 2(f).
The Supreme Court of India held in Savitaben Somabhai
Bhatiya v State of Gujarat and others (2005) 3 SCC 636 that
a relationship "in the nature of marriage" is akin to a
common law marriage. However, the couple must hold
themselves out to society as being akin to spouses in addition
to fulfilling all other requisite conditions for a valid
marriage.
In D Velusamy v D Patchaiammal (2010)10 SCC 469, the
Supreme Court observed that a "relationship in the nature of

60
marriage" is akin to a common law marriage. Common law
marriages require that although not being formally married,
the couple must:
• Hold themselves out to society as being akin to
spouses.
• Be of legal age to marry.
• Be otherwise qualified to enter into a legal marriage,
including being unmarried.
• Have voluntarily cohabited and held themselves out
to the world as being akin to spouses for a significant
period of time.
These conditions must be evidenced. Further, the Supreme
Court has held that a "relationship in the nature of marriage"
under the 2005 Act must also fulfil the above requirements,
and in addition the parties must have lived together in a
"shared household" as defined in section 2(s) of the Act.
Merely spending weekends together would not make it a
domestic relationship.

61
In Chanmuniya v Chanmuniya Virendra Kumar Singh
Kushwaha and another (2011) 1 SCC 141 the Supreme
Court held that where a man has lived with a woman for a
long time, despite not being married, he should be made
liable to pay the woman maintenance if he leaves her. The
man should not be allowed to benefit from legal loopholes
by enjoying the advantages of a de facto marriage without
undertaking the duties and obligations.
Through the judgment in Chanmuniya, the Supreme Court
has extended relief for maintenance under section 125 of the
CrPC to women in live-in relationships. It has been held that
as monetary relief and compensation can be awarded in
cases of live-in relationships under the Domestic Violence
Act, they should also be allowed in proceedings under
section 125 of the CrPC. Sections 18 to 23 of the Domestic
Violence Act provide a large number of reliefs as legal
redress. An aggrieved woman can claim reliefs through the
courts in the form of protection orders, residence orders,
monetary relief, custody orders for children, compensation
orders and interim/ex parte orders.

62
The benefits available to a woman under the Domestic
Violence Act include a woman's right to reside in the shared
household with her husband or a partner. If a
husband/partner of the complainant violates protection
orders, it will be deemed a punishable offence. Punishment
for violation of the rights enumerated above could extend to
one year's imprisonment and/or a maximum fine of
INR20,000.
The Supreme Court in Indra Sarma v VKV Sarma AIR 2014
SC 309 set out some guidelines for testing under what
circumstances, a live-in relationship will fall within the
expression "relationship in the nature of marriage" under
section 2(f) of the Domestic Violence Act. The guidelines,
of course, are not exhaustive, but will definitely give some
insight into such relationships:
• Duration of period of relationship. Section 2(f) of
the Domestic Violence Act has used the expression
"at any point of time", which means a reasonable
period of time to maintain and continue a relationship
which may vary from case to case, depending on the
factual situation.

63
• Shared household. This expression has been
defined under section 2(s) of the Domestic Violence
Act and, therefore, needs no further elaboration.
• Pooling of resources and financial
arrangements. Supporting each other, or any one of
them, financially, sharing bank accounts, acquiring
immovable properties in joint names or in the name
of the woman, long term investments in business, and
shares in separate and joint names, so as to have a
long-standing relationship, may be a guiding factor.
• Domestic arrangements. Entrusting responsibility,
especially on the woman, to run the home, do
household activities like cleaning, cooking,
maintaining or keeping up the house and so on, is an
indication of a relationship in the nature of marriage.
• Sexual relationship. Marriage-like relationship
refers to a sexual relationship, not just for pleasure,
but for an emotional and intimate relationship and for
procreation of children, so as to give emotional
support, companionship and also material affection,
caring and so on.

64
• Children. Having children is a strong indication of a
relationship in the nature of marriage. Parties,
therefore, intend to have a long-standing
relationship. Sharing the responsibility for bringing
up and supporting them is also a strong indication.
• Socialising in public. Holding out to the public and
socialising with friends, relations and others, as if
husband and wife, is a strong circumstance to hold
that the relationship is in the nature of marriage.
• Intention and conduct of the parties. Common
intention of parties as to what their relationship is to
be and to involve, and as to their respective roles and
responsibilities, primarily determines the nature of
that relationship.
The question which arose before the Supreme Court was
whether a "live-in relationship" would amount to a
"relationship in the nature of marriage" falling within the
definition of "domestic relationship" under section 2(f) of
the Domestic Violence Act and the disruption of such a
relationship by failure to maintain a woman involved in such

65
a relationship amounts to "domestic violence" within the
meaning of section 3 of the Domestic Violence Act. The
Supreme Court observed that a live-in or marriage like
relationship is neither a crime nor a sin though socially
unacceptable in this country. The decision to marry or not to
marry or to have a heterosexual relationship is intensely
personal.
The Supreme Court distinguished between the relationship
in the nature of marriage and marital relationship.
Relationship of marriage continues, despite the fact that
there are differences of opinions, marital unrest and so on,
even if they are not sharing a shared household, being based
on law. However, a live-in-relationship is purely an
arrangement between the parties, unlike a legal marriage.
Once a party to a live-in-relationship determines that he/she
does not wish to live in such a relationship, that relationship
comes to an end. Further, in a relationship in the nature of
marriage, the party asserting the existence of the
relationship, at any stage or at any point of time, must
positively prove the existence of the identifying
characteristics of that relationship, since the legislature has
used the expression "in the nature of".

66
The Supreme Court referred to certain situations, in which
the relationship between an aggrieved person referred to in
section 2(a) and the respondent referred to in section 2(q) of
the Domestic Violence Act, would or would not amount to a
relationship in the nature of marriage, would be apposite.
The following are some of the categories of cases which are
only illustrative:
• Domestic relationship between an unmarried
adult woman and an unmarried adult male. A
relationship between an unmarried adult woman and
an unmarried adult male who lived or, at any point of
time lived together in a shared household, will fall
under the definition of section 2(f) of the Domestic
Violence Act, and in case there is any domestic
violence, the same will fall under section 3 of the
Domestic Violence Act and the aggrieved person can
always seek relief provided under Chapter IV of the
Domestic Violence Act.
woman and a married adult male. Situations may

67
arise when an unmarried adult woman knowingly
enters into a relationship with a married adult male.
The question is whether such a relationship is a
relationship "in the nature of marriage" so as to fall
within the definition of section 2(f) of the Domestic
Violence Act.
• Domestic relationship between a married adult
woman and an unmarried adult male. Situations
may also arise where an adult married woman
knowingly enters into a relationship with an
unmarried adult male. The question is whether such
a relationship would fall within the expression
relationship "in the nature of marriage".
woman who unknowingly enters into a
relationship with a married adult male. This may,
in a given situation, fall within the definition of
section 2(f) of the Domestic Violence Act and such a
relationship may be a relationship in the "nature of
marriage", so far as the aggrieved person is
concerned.

68
• Domestic relationship between same sex partners
(gay and lesbian). The Domestic Violence Act does
not recognise such a relationship and that
relationship cannot be termed as a relationship in the
nature of marriage under the Act. Legislatures in
some countries, like the Interpretation Act 1984
(Western Australia), the Interpretation Act 1999
(New Zealand), the Domestic Violence Act 1998
(South Africa), and the Domestic Violence, Crime
and Victims Act 2004 (UK), have recognised the
relationship between same sex couples and have
brought these relationships into the definition of
domestic relationship. The Supreme Court held that
although section 2(f) of the Domestic Violence Act
uses the expression "two persons", the expression
"aggrieved person" under section 2(a) takes in only
"woman", therefore the Act does not recognise the
relationship of same sex (gay or lesbian), and
therefore any act, omission, commission or conduct
of any of the parties would not lead to domestic
violence entitling any relief under the Domestic
Violence Act.

69
The Supreme Court held that while determining whether any
act, omission, commission or conduct of the respondent
constitutes "domestic violence", there should be a common
sense/balanced approach, after weighing up the various
factors which exist in a particular relationship, and then a
conclusion as to whether a particular relationship is a
relationship in the "nature of marriage". Many times it is the
common intention of the parties to that relationship as to
what their relationship is to be, their involvement and their
respective roles and responsibilities, that primarily governs
that relationship. Intention may be expressed or implied and
what is relevant is their intention as to matters that are
characteristic of a marriage.
The expression "relationship in the nature of marriage", of
course, cannot be construed in the abstract. We must take it
in the context in which it appears and apply the same,
bearing in mind the purpose and object of the Act as well as
the meaning of the expression "in the nature of marriage".
The plight of a vulnerable section of women in that
relationship needs attention. Many times the woman has

70
been taken advantage of, and the essential contribution of
women in a joint household through labour and emotional
support has been lost sight of, especially by women who fall
in the categories mentioned in the first and fourth bullet
points above. Women who fall under the second and third
bullet points above, stand on a different footing. In the
present case, the appellant falls under the second bullet point
above, referred to in paragraph 37(b) of the judgment.
The Supreme Court held that to test whether a particular
relationship would fall within the expression "relationship in
the nature of marriage", certain guiding principles have to be
evolved since the expression has not been defined in the Act.
Section 2(f) of the Domestic Violence Act defines "domestic
relationship" to mean, among others, a relationship between
two persons who live or have lived together at such point of
time in a shared household, through a relationship in the
nature of marriage. The expression "relationship in the
nature of marriage" is also described as a de facto
relationship, a marriage-like relationship, cohabitation,

71
couple relationship, meretricious relationship (now known
as committed intimate relationship) and so on.12
Section 17 of the Protection of Women from Domestic
Violence Act 2005 gives all married women or female
partners in a domestic relationship the right to reside in a
home that is known in legal terms as the "shared household".
The same provision applies even if the woman does not have
any right, title or beneficial interest in the same. The law
provides that if an abused woman requires it, she has to be
provided with alternate accommodation. The
accommodation and her maintenance has to be paid by her
husband or partner.
The law, significantly, recognises the need of the abused
woman for emergency reliefs to be provided by the husband.
She has the right to the services and assistance of the
protection officer and service providers, shelter homes and
medical establishments stipulated under the provisions of the
law. A woman who is the victim of domestic violence will
12
Domestic Violence Act, 2005
Code of Criminal Procedure, 1973

72
have the right to the services of the police. She also has the
right to simultaneously file a criminal complaint under
section 498A of the Indian Penal Code. Charges under
section 498A can be framed by the magistrate. The offences
are cognisable and non-bailable. In Badshah v Urmila
Badshah Godse and another (2014) 1 SCC 188, the Supreme
Court held that the expression "wife" in section 125 of the
Code of Criminal Procedure, includes a woman who had
been duped into marrying a man who was already married.
It was held that at least for the purpose of claiming
maintenance under section 125 of the Code of Criminal
Procedure, a woman duped into marrying a marrying a man
already married is to be treated as the legally wedded wife

73
.
Chart (5)
The sampling population was further asked, if live-in was
the replacement to marriage? The middle age groups
vehemently favoured the same, though the older ones,
seemed to oppose it. The youngest population group,
between 18-25 years, was equally divided between the two
extremes. The statistics elucidated the disfavor to
cumbersome litigation attached, if the marriage didn’t work
out well.
0%
20%
40%
60%
80%
100%
IS LIVE -IN THE NEW
AGE MARRIAGE?
YES NO MAYBE

74
CHAPTER-7 ADR IN MARITAL DISPUTES
FAMILY DISPUTE RESOLUTION
MEDIATION, COLLABORATIVE LAW AND
ARBITRATION
There have been proactive attempts by the Indian judiciary
in the past few years to have a formal framework which
provides mediation and arbitration services to help litigants
resolve their disputes in an amicable fashion. There have
been numerous mediation and conciliation centres opened
which run under the supervision of the High Courts of
various states. The Supreme Court of India also has its own
mediation and conciliation centre.
In family disputes, the medium for amicable settlement
adopted is mediation. There is no legal recognition for
"collaborative law" in India, but lawyers do participate in
facilitating settlements. In India, family matters are not the
subject matter of arbitrations.
The mediation and conciliation centre are governed by the
rules formulated by the High Courts of various states from

75
time to time. The agreements reached under the auspices of
mediation and collaborative laws have the sanctity of law.
Parties who do not abide by the term and conditions are
liable to be sued for breach of contract and may even be
liable for contempt of court.
MEDIATION AND RECONCILIATION
PROCEDURES AVAILABLE
An attempt at reconciliation is mandatory under the Hindu
Marriage Act 1955 and the Special Marriage Act 1954.
Other Indian matrimonial statutes do not provide for it and
there is therefore no statutory mandate to attempt settlement
in other cases.
Reconciliation is provided for under sections 23(2) and 23(3)
of the Hindu Marriage Act. Section 23(2) of the Hindu
Marriage Act states that before proceeding to grant any relief
under it, the court has a duty in the first instance, in every
case, to make every endeavour to bring about reconciliation
between the parties where a divorce is sought on most of the
fault grounds for divorce specified in section 13 of the Hindu
Marriage Act. Section 23(3) of the Hindu Marriage Act

76
makes a provision empowering the court on the request of
parties, or if the court thinks it just and proper, to adjourn the
proceedings for a reasonable period not exceeding 15 days
to bring about reconciliation.
It must be borne in mind that a Hindu marriage is a
sacrament and not a contract. Even if divorce is sought by
mutual consent, it is the duty of the court to attempt
reconciliation in the first instance. Accordingly, Hindu law
advocates reconciliation before dissolving a Hindu marriage.
The provisions of sections 34(2) and 34(3) of the Special
Marriage Act are pari materia to the provisions contained in
sections 23(2) and 23(3) of the Hindu Marriage Act. Even
though the marriage contracted under the SMA does not
have the same sanctity as marriage solemnised under the
Hindu Marriage Act, the Indian Parliament retained the
provisions for reconciliation of marriages in the same terms
as they exist in the Hindu Marriage Act.
The provisions under both the statutes are almost identical
and accordingly every endeavour to bring about
reconciliation is mandatory.

77
The mediation and conciliation centres are established under
the Rules of the High Courts within whose jurisdiction they
are established.
The option of pre-litigation mediation is available to the
parties. However, the parties are not required to attempt a
family dispute resolution in advance of the institution of
proceedings. It is a voluntary and consensual exercise.
WHY AREN’T PRENUPS USED MORE OFTEN?
• Only 2% of divorces that occur in India have a
prenuptial agreement in place that help to dictate the
proceedings.
• The judicial mechanism, has most of the areas of
dispute covered.
• The average rate of married people who say that they
have a chance of getting a divorce was just 11.7%.
• 62% of people in a recent survey say that the request
for a prenuptial agreement sends a negative signal to
the other person who hasn’t requested it.

78
• 63% of people believe that they would be at a higher
risk of divorce if their partner asked them for a
• Even more than 50% of law students believe that a
prenup would increase their chances of experiencing
a divorce later on in a marriage.
• Prenuptial agreements are often thought to be about
wealth, but a prenup can also protect someone
against a spouse who is entering a marriage with a lot
of debt.
• Although the perspective of a prenup is that a partner
doesn’t have a high level of trust, the opposite is true
because all assets must be disclosed in order for an
agreement to be valid.
• Prenups are seen as expensive, but ultimately they
are just a fraction of the cost of the average
wedding.13
It’s the social stigma of a prenuptial agreement that makes it
such a difficult thing to put into place. You get car insurance
13
Campbella group of lawyers, researched, based a per U.S. data

79
in case you’re in an accident and you purchase home
insurance to protect your property from harm. Why wouldn’t
you get marriage insurance as well? What happens to the
stay at home parent who is raising a child and the other
partner decides to leave when a prenup isn’t in place? Once
someone steps out of the work force for any length of time,
even to raise a child, it affects their future earning potential.
Prenups help to equal the playing field, bring another level
of partnership to the relationship, and ultimately shore it up
on all fronts to protect against the “what-ifs” that can occur
in life. It should be noted that if a prenuptial agreement
places a spouse into a worse position after the marriage than
before it, there is a good chance that the court won’t uphold
the agreement.

80
LOVE VS ARRANGE
Chart (6)
The test groups were unanimously asked, if it would be
easier to draft a pre-nuptial in an arranged marriage or love
one. The answers surprisingly, leaned heavily in favour of
arrange marriage!
Seems the youth feels tough tied in matters of negotiation
when cupid strikes

81
CHAPTER-8 PRE-NUPS IN DIFFERENT
COUNTRIES
PRE-NUPTIAL AGREEMENTS & RECOGNITION IN
DIFFERENT COUNTRIES:-
Laws vary between both states and countries in both what
content they may contain and under what conditions and
circumstances that a prenuptial agreement may be declared
unenforceable, such as an agreement signed under fraud,
duress or without adequate disclosure of assets.(14)
AFRICA
SOUTH AFRICA
In South Africa, a civil marriage or civil union is, by default,
a marriage in community of property. In order to marry out
of community of property, the parties must sign an
antenuptial contract in the presence of a notary public prior
to their marriage and the contract must be registered in the

82
Deeds Office within three months from the date of signature
of the contract.
When marrying out of community, the parties have a choice
to marry with application of the accrual system or without
application of the accrual system.
In the event that the parties marry without accrual, the
spouses’ respective estates would always remain separate
and neither party will have any proprietary claim against the
other by virtue of the marriage.
If the parties marry with application of the accrual, their
respective estates would remain separate during the
subsistence of the marriage. Upon dissolution of the
marriage, whether by death or divorce, the spouse with the
lesser accrual would have a claim against the spouse with the
larger accrual for half the difference between their accrual
values.

83
ASIA
INDIA
In India, prenuptial agreements are very rare and do not have
any governing laws. However, with rising divorce rates
people are showing increasing interest in them. Some
lawyers are of the opinion that prenups don't have legal
sanctity in India. However, some form of contract is signed
in some cases, usually among affluent citizens. But, the
agreements need to be reasonable and not violate pre-
existing laws like the Hindu Marriage Act. Indian courts
allow a memorandum of settlement to be signed during
divorces. But, no court has yet been asked to enforce a
prenup
These agreements may come under the Indian Contract Act
1872. The Section 10 of the Indian Contract Act states that
agreements are to be considered contracts if they are made
by the free consent of the parties.
However, the Section 23
of the same act states that a contract may be void if they are
immoral or against public policy.

84
Goa is the only Indian state where a prenuptial is legally
enforceable, as it follows the Portuguese Civil Code, 1867.
A prenuptial agreement may be signed between the two
parties at the time of marriage, stating the regime of
ownership. If a prenuptial has not been signed, then the
marital property is simply divided equally between the
husband and wife
THAILAND
The prenuptial agreement in Thailand sign on the basis of
mutual consent of the man and woman, which want to get
married. Under Thai law, a prenuptial agreement is
recognized by the Commercial and Civil Code of Thailand.
A valid and enforceable Thai prenuptial agreement requires
by Law where:
• the content of the prenuptial made in Thailand cannot
be against the law or good morals;
• both the prospective husband and wife must
understand the content of the prenuptial;

85
• the prenuptial in Thailand must be made before the
marriage, a contract between husband and wife
concerning personal and jointly owned property
made after the marriage registration (post-nuptial) is
void;
• both the future husband and wife must sign the
prenuptial in the presence of at least 2 witnesses and
the agreement must be entered into the Marriage
Register together with the marriage
These conditions are found at clause 1466 of the
Commercial and Civil Code of Thailand.
In accordance with the laws on Thai marriage, the prenuptial
agreement mainly relates to assets and financial implications
of marriage and establishes conditions of ownership and
management of personal and concrete joint property and
potential division of marital assets, if the marriage will be
dissolved. The prenuptial agreement also includes a list of
each side's personal assets at the time of the marriage and
guarantees, that debts and property before the marriage
remain in possession of the initial owner or debtor.

86
Personal property includes:
• property owned by spouses before the marriage;
• property for personal use — work instruments,
clothes, etc.;
• gifts from third parties or property received through
the testament (if it is not indicated in testament, that
property should transfer to joint property of spouses);
• “khongman” — real estate transmitted to the bride as
a dowry (during the engagement ceremony).
Joint property includes:
• property acquired at the time of the marriage;
• property received by one of the spouses at the time
of the marriage as a gift, if in the document attached
to a gift or in the document compiled by spouse this
property was declared as joint (Martial Assets);

87
• income acquired from personal property
EUROPE
Prenuptial agreements have long been recognized as valid in
several European countries, such the Netherlands,
Germany, Poland, Switzerland, Sweden, Denmark,
Norway and Finland While in some of these countries there
are limits on what restrictions the courts will see as
enforceable or valid (e.g. Germany after 2001, where
appeals courts have indicated this), a written and properly
initiated contract, freely agreed upon, cannot be challenged
by, for instance, invoking the circumstances under which the
marriage broke down or the conduct of either part. In France
and Belgium (as in Quebec, which has the same judicial
tradition) prenuptial agreements must be set up in the
presence of a notary.
In many of the countries mentioned, prenuptials may also
protect the non-shared property and money from being
pulled into a bankruptcy and can serve to support lawsuits
and settlements during the marriage (for instance if one part

88
has sold or wrongfully mortgaged a piece of property that
had been set aside by his/her partner).
UKRAINE
In accordance with provisions of Section 10 of the Family
Code of Ukraine, marriage relationships, rights and duties of
spouses can be regulated by a Marriage contract as well if
spouses wish to settle their property relations in other
manner then it is provided by the Family Code of Ukraine.
Marriage (prenuptial) contract can be concluded by a woman
and a man, who applied for registration of their marriage as
well as by spouses. Underaged person, who wants to
conclude a marriage contract before registration of the
marriage, is to have a signed consent of his/her parent or
custodian certified by a notary.
Numerous provisions of this section of the Family Code of
Ukraine provide quite extensive requirements as regarding
the form and contents of the marriage contract and the
procedural issues of making the same are regulated by
appropriate Instruction of the Ministry of Justice of Ukraine

89
as regarding the procedure of notarization of marriage
contracts as well as far as notarization is required.
Imperative requirements as regarding content of the
marriage contract are provided by clause 93 of the Family
Code of Ukraine, which states that the marriage contract
governs property relations between spouses, determines
their property rights and duties. Marriage contract can also
determine property rights and duties of spouses as parents,
but with certain limitations. Personal relations of spouses
cannot be regulated by the marriage contract, as well as
personal relations between spouses and their children. This
rule is also provided by clause 93 of the Family Code of
Ukraine. Marriage contract, which reduce rights of children
and put one of spouses on a poor material state, are not
permitted by the above imperative regulation. Within the
frameworks of the marriage contract none of spouses can
acquire any immovable property or other property, which
requires the state registration

90
UNITED KINGDOM
ENGLAND AND WALES
Prenuptial agreements historically had not been considered
legally enforceable in England and Wales due to a reluctance
on the part of the judiciary for public policy reasons.
The 2010 Supreme Court test case of Radmacher v
Granatino, overturned the previous legal framework on
them to recognise changing societal and judicial views on
the personal autonomy of married partners. Pre-nuptial
agreements can now be enforced by the courts as part of their
discretion in financial settlement cases under section 25 of
the Matrimonial Causes Act 1973 so long as the three
stage Radmacher test is met and it is considered fair to do
so, keeping in mind the interests of any child of the
family. Radmacher holds that the courts will give effect to a
nuptial agreement that is freely entered into by each party
with a full appreciation of its implications unless, in the
circumstances prevailing, it would not be fair to hold the
parties to their agreement. The case provided substantial

91
amounts of guidance relevant to all nuptial agreement cases
that have occurred since 2010.
The Law Commission's 2014 report on Matrimonial
Property generally accepted the decision in Radmacher and
recommended the creation of a 'qualifying nuptial
agreement' regime by Parliament which would create a
completely binding pre-nuptial agreement so long as certain
requirements were met. The Commission's
recommendations have yet to be implemented.
A prenuptial agreement is distinct from the historic marriage
settlement which was concerned not primarily with the
effects of divorce but with the establishment and
maintenance of dynastic families, or a divorce
settlement entered into by parties in connection with
dissolving their marriage.
NORTH AMERICA
CANADA
Prenuptial agreements in Canada are governed by provincial
legislation. Each province and territory in Canada recognizes
prenuptial agreements. For instance, in Ontario prenuptial

92
agreements are called marriage contracts and they are
recognized by section 52 of the Family Law Act
UNITED STATES
In the United States, prenuptial agreements are recognized
in all fifty states and the District of Columbia, and they are
enforceable if prepared in accordance with state and federal
law requirements. It has been reported that the demand for
prenuptial agreements in the United States has increased in
recent years, particularly among millennial couple
In a 2016 survey conducted by the American Academy of
Matrimonial Lawyers (AAML), member attorneys reported
seeing an increase in the total number of clients seeking
prenuptial agreements before marriage in recent years,
particularly with the millennial generation, with the
strongest interest in protecting increases in the value of
separate property, inheritances, and division of community
property
In the past, couples entered into premarital agreements with
a level of uncertainty about their validity. Today, the
presumptive validity and enforceability of such agreements

93
in states that have adopted the UPAA/UPMAA including
Florida Virginia , New Jersey ]
and California,[26]
is no
longer in question.[27]
Currently, 28 States and the District of Columbia have
adopted a version of the Uniform Premarital Agreement Act
(UPAA) or the updated Uniform Premarital Agreements Act
(UPMAA). The UPAA was passed in 1983 by the Uniform
Law Commission (ULC) to promote more uniformity and
predictability between state laws relating to these contracts
in an increasing transient society. The UPAA was partly
enacted to ensure that a prenup that was validly entered into
in one state would be honored by the courts of another state
where the couple might get a divorce. The UPMAA was
subsequently promulgated in 2012 by the ULC to clarify and
modernize inconsistent state laws, and create a uniform
approach to all prenuptial agreements and postnuptial
agreements that:
1. Requires marital agreements to be in writing and
declares them to be enforceable without
consideration, modernizing existing state laws;

94
2. Offers couples a flexible framework for premarital
agreements that promotes responsible planning and
informed decision-making; and
3. Provides courts in every state a framework for
determining an agreement’s validity, regardless of
where it was executed
The laws enacted by states adopting the UPAA/UPMAA do
have some variances from state-to-state, but this framework
of laws has certainly made it much easier for legal
practitioners to prepare enforceable marital agreements for
clients by clearly stating the requirements.
For instance, under Florida law, there is a very material
difference in what is required to enter into a legally binding
prenuptial agreement versus a postnuptial agreement. In
order to validly waive the spousal rights that would
ordinarily be available to a surviving spouse under Florida
law (such a homestead, elective share, exempt property,
family allowance, etc.), the parties have to make a full and
fair disclosure of their assets and liabilities to each
other before entering into a postnuptial agreement. In

95
contrast, no financial disclosure is required to waive those
same spousal rights in a premarital agreement
executed before marriageThat said, if the lack of disclosure
results in a prenup being unconscionable (unfair to one
spouse) under Florida’s Uniform Premarital Agreement Act,
it may not be enforceable on those grounds.
Even in states that have not enacted the UPMAA/UPAA like
New York, duly executed prenuptial agreements are
accorded the same presumption of legality as any other
contract. It is not necessary that a couple signing a prenuptial
agreement retain separate attorneys to represent them, as
long as each party understands the agreement and signs it
voluntarily with the intention to be bound to its terms.
There is a strong public policy favoring parties ordering and
deciding their own interests through contracts.There are no
state or federal laws that force adults with contractual
capacity to have to hire legal counsel to be able to enter into
a marital contract such as a prenuptial agreement, except for
a California law that requires that the parties be represented
by counsel if spousal support (alimony) is limited by the
agreement.

96
A prenuptial agreement may be challenged if there is
evidence that the contract was signed under duress. Whether
a premarital agreement was signed under duress must be
proven by the facts and circumstances of each case. For
example, it has been held that a spouse's claim that she
believed that there would be no wedding if she did not sign
a prenuptial agreement, where the wedding was only two
weeks away and wedding plans had been made,
was insufficient to demonstrate duress.
Prenuptial agreements may limit the parties' property and
spousal support rights, but also to guarantee either party the
right to seek or receive spousal support up to a certain limit.
It may be impossible to set aside a properly drafted and
executed prenup. A prenup can dictate not only what
happens if the parties divorce, but also what happens when
they die. They can act as a contract to make a will and/or
eliminate all of one's rights to property, probate homestead,
probate allowance, right to take as a predetermined heir, and
the right to act as an executor and administrator of one's
spouse's estate.

97
A prenuptial agreement is only valid if it is completed prior
to marriage. After a couple is married, they may draw up a
post-nuptial agreement.
In most jurisdictions in the United States, five elements are
required for a valid prenuptial agreement:
1. agreement must be in writing (oral prenups are
generally unenforceable);
2. must be executed voluntarily;
3. full and/or fair disclosure at the time of execution;
4. the agreement cannot be unconscionable;
5. it must be executed by both parties (not their
attorneys) and often notarized and/or witnessed.
There are several ways that a prenuptial agreement can be
attacked in court. These include lack of voluntariness,
unconscionability, and a failure to disclose assets. Prenuptial
agreements in all U.S. states are not allowed to regulate
issues relating to the children of the marriage, in particular,
custody and access issues.The reason behind this is that

98
matters involving children must be decided in the children's
best interests However, this is controversial: some people
believe that as custody battles are often the worst part of a
divorce, couples should be able to settle this in advance.
Courts will not enforce requirements that one person will do
all housework or that the children will be raised in a certain
religion.In recent years, some couples have included social
media provisions in their prenuptial agreements, setting
forth rules as to what is permissible to be posted on social
media networks during the marriage, as well as in the event
the marriage is dissolved
A sunset provision may be inserted into a prenuptial
agreement, specifying that after a certain amount of time, the
agreement will expire. In Maine, for prenuptial agreements
executed before October 1, 1993, unless the parties renew
the agreement, it automatically lapses after the birth of a
child.In other states, a certain number of years of marriage
will cause a prenuptial agreement to lapse. In states that have
adopted the UPAA (Uniform Premarital Agreement Act), no
sunset provision is provided by statute, but one could be

99
privately contracted for. Note that states have different
versions of the UPAA.
Unlike all other contract law, consideration is not required,
although a minority of courts point to the marriage itself as
the consideration. Through a prenup, a spouse can
completely waive rights to property, alimony or inheritance
as well as the elective share and get nothing in return. Choice
of law provisions are critical in prenups. Parties to the
agreement can elect to have the law of the state they are
married in govern both the interpretation of the agreement
and how property is divided at the time of divorce. In the
absence of a choice of law clause it is the law of the place
the parties divorce, not the law of the state they were married
that decides property and support issues.
In drafting an agreement, it is important to recognize that
there are two types of state laws that govern
divorce – equitable distribution, practiced by 41 states,
and community property, practiced in some variation by 9
states. An agreement written in a community property state
may not be designed to govern what occurs in an equitable
distribution state and vice versa. It may be necessary to

100
retain attorneys in both states to cover the possible
eventuality that the parties may live in a state other than the
state they were married. Often people have more than one
home in different states or they move a lot because of their
work so it is important to take that into account in the
drafting process.
With respect to financial issues ancillary to divorce,
prenuptial agreements are routinely upheld and enforced by
courts in virtually all states. There are circumstances in
which courts have refused to enforce certain
portions/provisions of such agreements. For example,
in North Dakota the divorce courts retain jurisdiction to
modify a limitation on the right to seek alimony or spousal
support in a premarital agreement if it would cause the
spouse who waived such right to need public assistance at
the time of divorce.Florida and several other states contain
similar limitations to avoid a divorcing spouse from
becoming a ward of the state upon divorce by virtue of a
prenuptial agreement.Moreover, in Florida where the
inheritance (elective share) and homestead rights granted to
surviving spouses by state law are so strong, its Premarital
Agreement Act requires that a waiver of surviving spouse

101
rights set forth in a prenuptial agreement be executed with
the same formality as a will to be enforceable (notarized and
witnessed by two disinterested parties).
SAME-SEX MARRIAGES
In 2015 the U.S. Supreme Court granted same-sex marriages
the same legal footing as marriage between opposite-gender
couples, in the case of Obergefell v. Hodges (Decided June
26, 2015). This effect of the Supreme Court’s ruling is that a
premarital agreement entered into by a same-sex couple in
one state is fully enforceable in another state in the event of
a divorce.
FEDERAL LAWS
Certain federal laws apply to the terms that may be included
in a premarital agreement. The Retirement Equity Act
(REA) of 1984, signed into law by President Ronald
Reagan on August 23, 1984, reconciled confusion over
whether ERISA preempted state divorce laws, thereby
preventing pension plans from complying with court orders
giving a spouse a portion of the worker’s pension in a
divorce decree A prenuptial agreement can contain waivers

102
by which each spouse agrees to release any claims against
each other’s retirement benefits that arise under both state
and federal laws by virtue of the marriage, like under the
REA.
When a United States citizen chooses to marry an immigrant,
that person frequently serves as a Visa sponsor to petition for
their fiancé to enter or stay in the United States.
The Dept. of Homeland Security requires people sponsoring
their immigrant fiancé to come to the U.S. on a Visa to
provide an Affidavit of Support and it is important to take
into account the Affidavit of Support obligation for a U.S.
sponsor about to sign a prenuptial agreement. The Affidavit
of Support creates a 10-year contract between the U.S.
Government and the sponsor, requiring the sponsor to
financially support the immigrant fiancé from the sponsor’s
own resources.
As the I-864 form expressly states, divorce does not
terminate the support obligations the sponsor owes to U.S.
Government, and the immigrant spouse has rights as a third-
party beneficiary of the support promise the sponsor makes
in the I-864 Affidavit. As such, any waiver of alimony in

103
their prenuptial agreement must be drafted in a way that does
not violate the contract that the U.S. sponsor makes with the
government by providing the Affidavit of Support, or it will
be at risk for being declared unenforceable.
CALIFORNIA
In a 1990 California case, the court of appeals enforced an
oral prenuptial agreement in the probate of the estate of one
of the parties because the surviving spouse had substantially
changed her position in reliance on the oral agreement.
However, following changes in the statutory law, it has
become much more difficult to change the character of
community or separate property without a written
agreement.
Parties can waive disclosure beyond that which is provided,
and there is no requirement of notarization, but it is good
practice. There are special requirements if parties sign the
agreement without attorney, and the parties must have
independent counsel if they limit spousal support (also
known as alimony or spousal maintenance in other states).
Parties must wait seven days after the premarital agreement

104
is first presented for review before they sign it, but there is
no requirement that this be done a certain number of days
prior to the marriage Prenups often take months to negotiate
so they should not be left until the last minute (as people
often do). If the prenup calls for the payment of a lump sum
at the time of divorce, it may be deemed to promote divorce.
This concept has come under attack and a lawyer should be
consulted to make sure the prenup does not violate this
provision.[
In California, through a prenuptial agreement a couple may
waive their rights to share property (community
property).The agreement can limit spousal support (although
a court at the divorce can set this aside if it deems that the
limitation is unconscionable). The agreement can act as a
contract to make a will requiring one spouse to provide for
the other at death.
It can also limit probate rights at death, such as the right to a
probate allowance, the right to act an executor, the right to
take as a predetermined heir, and so forth. In California,
Registered Domestic Partners may also enter into a prenup.
Postmarital agreements are treated very differently in

105
California law. Spouses have a fiduciary duty to one another
so premarital agreements come under a special category of
agreements. There is a presumption that the postmarital
agreement was obtained by undue influence if one party
gains an advantage. Disclosure cannot be waived in the
context of a postmarital agreement.
PREMARITAL MEDIATION
Premarital mediation is an alternative way of creating a
prenuptial agreement. In this process, a mediator facilitates
an open discussion between the couple about all kinds of
marital issues, like expectations about working after children
are born and saving and spending styles as well as the
traditional premarital discussions about property division
and spousal support if the marriage is terminated. The
engaged couple makes all of the decisions about what would
happen in the event of a separation or divorce with the
assistance of the mediator. They then draft either a deal
memo or a premarital agreement and have it reviewed by
their respective attorneys. An agreement developed
via mediation is typically less expensive because fewer
hours are spent with attorneys because the couple has made

106
all of the decisions together, rather than one side vs. the
other.14
14
International pre-nuptials.com

107
FOREIGN ADVOCATES TAKE, ON PRE-NUP
STATISTICS (LONDON)
Lovers have little interest in prenuptial agreements,
according to research by lawyers.
Nearly four in 10 people questioned in a survey said entering
into a “prenup” had never crossed their minds.
More than four in 10 said they were “happy to keep to the
traditional marriage system”.
London law firm Seddons and the Marriage Foundation, a
charity which aims to promote “stable relationships”,
commissioned the survey and research consultancy Populus
questioned more than 2,000 adults.
A Seddons’ spokeswoman said results showed a
“staggeringly low level of interest” in “prenups”.
“Just 2% of the married respondents had entered into a
prenup before getting married, with the vast majority (95%)
never even discussing a prenup as an option,” said the
spokeswoman.

108
There is a lack of understanding of how important a
prenuptial agreement may be and its enforceability now in
English lawDeborah Jeff
“Of those respondents that are living with a partner, but not
married or in a civil partnership, only 4% had in place a
cohabitation agreement, with 79% of cohabiting respondents
stating they were not even aware of the existence of
cohabitation agreements.”
She added: “Despite the cost of divorce being high, almost
half (45%) of respondents cited ‘being happy to keep to the
traditional marriage system’ as the main reason for not
getting a prenup. Almost four in 10 respondents (38%) said
entering a prenup had never crossed their minds.”
Lawyer Deborah Jeff, head of the family department at
Seddons, said: “Despite the increasing public references to
prenuptial agreements, particularly amongst high-net worth
individuals, our research has found that for the vast majority
of people prenups are not a part of their relationship
planning.

109
“There is a lack of understanding of how important a
prenuptial agreement may be and its enforceability now in
English law.15
“Provided the agreement is properly prepared, fair and all
reasonable needs are met, they can be of magnetic
importance and extremely persuasive if a marriage ends in
divorce.
“They also demonstrate to a court that from the outset of a
marriage the parties had decided for themselves how their
finances should be divided.”
15
The Popolus Survey

111
CHAPTER-9 PRENUPS IN DIFFERENT
RELIGIONS
RELIGIOUS DENOMINATIONS & TAKE ON PRE-
NUPS
CATHOLICISM16
Prenuptial agreements are a matter of civil law, so
Catholic canon law does not rule them out in principle (for
example, to determine how property would be divided
among the children of a prior marriage upon the death of one
spouse).
In practice, prenuptials may run afoul of Church law in a
number of ways. For example, they cannot subject a
marriage to a condition concerning the future. The Code of
Canon Law provides: "A marriage subject to a condition
about the future cannot be contracted validly". (CIC 1102)
The Canon Law: Letter and Spirit, a commentary on canon
law, explains that condition may be defined as "a stipulation
16
the cannon law; letter and spirit

112
by which an agreement is made contingent upon the
verification or fulfillment of some circumstance or event that
is not yet certain". It goes on to state that "any condition
concerning the future attached to matrimonial consent
renders marriage invalid". For example, a marriage would be
invalid if the parties stipulated that they must have children
or they have the right to divorce and remarry someone else.
JUDAISM
In Judaism, the ketubah, a prenuptial contract, has long been
established as an integral part of the Jewish marriage, and is
signed and read aloud at the marriage ceremony. It contains
the husband's requirement to support his wife by providing
her with food, clothing and sex, as well as providing for the
wife's support in the case of divorce or the husband's death.
However, under this passage, a woman is free to leave if her
husband doesn't provide for her.
In 2004, the High Court of South Africa upheld a cherem
against a Johannesburg businessman because he refused to
pay his former wife alimony as ordered by The
Johannesburg Beth Din.

113
Recently, a movement supporting an additional prenuptial
agreement has emerged in some Modern Orthodox circles.
This is in response to a growing number of cases in which
the husband refuses to grant gett, a religious divorce. In such
matters, the local authorities are unable to intervene, both out
of concerns regarding separation of church and state and
certain halakhic problems that would arise. This situation
leaves the wife in a state of aginut, in which she is unable to
remarry. To remedy this situation, the movement promotes
a prenuptial agreement in which the couple agrees to conduct
their divorce, should it occur, in a rabbinical court.17
ISLAM
In most Arabic and Islamic nations there is a marriage
contract, known traditionally as aqd qeran, aqd nekah or aqd
zawaj, that long been established as an integral part of an
Islamic marriage and is signed at the marriage ceremony. In
Egypt, Syria, Palestine, Jordan and Lebanon, but not in other
nations or regions, this contract is widely known as Katb el-
Kitab. The contract is similar to the ketubah in Judaism, and
17
Ronald Kauffman

114
outlines the rights and responsibilities of the groom and
bride or other parties involved in the marriage proceedings.
But this is different than prenuptial agreement, in that it does
not define how assets are to be divided or inherited in the
event of divorce or the death of a spouse.18
18
International encyclopedia of lawas: religion – Klower Law

115
Chart (7)
Next was asked a burning question, if prenuptials were an
impediment to the religious observations. The older age
groups, irrespective of the religious denominations, recorded
affirmative replies. As for the younger lot, from both
genders, more liberal opinions were recorded
0
20
40
60
80
100
120
0 2 4 6
percentage
age groups, recorded from 1 to 5
Religion vs Pre-nuptials
Y-Values

116
* these sampling population groups, have been taken from
the advanced tricity areas, geographical variations, may
escalate the graphs more.

117
CHAPTER-10 PRENUPS IN INDIA
PRENUPTIAL AGREEMENTS AND LEGAL
POSITION IN INDIA
There is no particular law, which talks of legality or
enforceability of prenuptial agreements in India. Prenuptial
agreements in India are not binding. But this does not
devaluate the importance of prenuptial agreements overall.
The court might take the prenuptial agreement into
consideration for understanding the intention of the couple.
Prenuptial agreement has helped the court in reaching a
proper settlement in cases for divorce.
A list of judgments where prenuptial agreements have been
used by the court to arrive at a proper conclusion..
• List of judgments where Sunita Devendra
Deshprabhu v. Sita Devendra Deshprabu. In the
following case, the Bombay High Court took the
prenuptial agreement into consideration for
deciding the separation of the asset.

118
• Anjali Sharma, a middle-aged business woman,
forbade her husband to remarry post divorce and
also claimed custody of all the pets bought during
marriage with the help of a document called a
• A couple in Coimbatore before getting into the
union of marriage signed a prenuptial agreement.
One of the clauses of the agreement said, “No
party in the marriage will force the other party to
change his/her religion after the solemnization of
the marriage.” The clause was not maintained by
the wife. The court took the help of the prenuptial
agreement to come to a conclusion and took the
non-maintainability of the court as a proper
ground for divorce.
Several Courts have taken, prenuptial agreement as a
guiding factor to come closer to the fact of, what was the
intention of the couples before entering into the marriage.
This does not make a prenuptial agreement as binding.
Prenuptial agreement in India is not binding. They might

119
carry a persuasive value for strengthening the Court has
strictly declared such agreements invalid
• Indian judiciary has declared such agreements as
invalid in Tekait Mon Mohini Jemadai v. Basanta
Kumar Singh and Krishna Aiyar v. Balammal.
• Pre-nuptials are not tenable or executable in a
court of law. However, they can at best be an
indication of the intent of the parties.

120
HOW DIFFICULT CAN DRAFTING AN
AGREEMENT BE?
Chart (8)
Next the sampling population was enquired, if drafting
prenuptials was an arduous task or a cake walk. While the
older population heavily inclined to it being a cake walk, the
youngsters considered it a tricky work.
* it is submitted, that the sampling population being from
advanced cities, the results have shown a graph, which
18-25 years
( arduous)
25-35 years
(difficult)
35-45 years
(convinient)
45 years &
above (easy)

121
expectedly might show a complete opposite trend in rural/
backward areas.
While the research definitely brought out some heated and
crisp replies, few eminent ones, have been quoted down
here….
On one side, the pros of the Pre-Nuptials, on the
other, the baggage of the traditions and conventional
ideologies.
Weighing both, is a difficult task. But the balance of
convenience definitely lies in favour of accepting the
Pre-Nups.
As the bogus cases of 498-A IPC, 125 CrPc, weigh

123
This is the first generation of Indians, which is
experimenting with this idea.
We have to understand, our society has always taken
every new invention and ideology with a pinch of salt.
The exact benefits would definitely be reaped by the
future generations. It would only be then, that the exact
loopholes, of this new mechanism would get unveiled.
Pre-nuptual agreements, are not
an Indian concept, this is the first
and foremost thing, we need to
understand. For centuries, the
institutions of family ties and

124
CHAPTER-11 DRAFTING OF PRENUP

125
CLAUSES WHICH ARE A MUST ADD
By now we know that prenuptial agreement in India is a
supporting document. Prenuptial agreements in India can be
used to decrease the uncertainty relating to property division
and other problems which occur during a divorce. Without
going further into the morality issues and as to why
prenuptial agreements should be made legally binding, let us
look for clauses which every prenuptial agreement in India
must contain.
SEPARATE PROPERTY CLAUSE
The clause says, after the solemnisation of the marriage, the
parties to the holds have a separate right to their property.
The separate property will be free from any claim that may
be made by the other party. The property will remain
separate in case of death or divorce.

PRENUPTIAL AGREEMENT BOOK FORMAT $.pdf

PRENUPTIAL AGREEMENT BOOK FORMAT $.pdf

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PRENUPTIAL AGREEMENT BOOK FORMAT $.pdf