Alarmed by the rising cases of divorce in India, the Union Ministry for Women and Child Development (MWCD) recently called for a discussion with legal experts and other stakeholders on the possibility of bringing about a Prenuptial law.
The Prenup law can be expected to legitimise a premarriage pact between the prospective bride and groom. The Quint has accessed the proposal drafted by MWCD.
Since marriages have a sacred status ascribed to them, it becomes difficult to weigh them in contractual terms. Also, opting for such agreement invites social stigma that the couple shares low commitment, and anticipation of divorce even before the solemnisation of marriage is both, bad omen and unromantic.Senior Official, Ministry of Women and Child Development
Considering all these social limitations, the MWCD feels still feels a prenup law is essential with the growing rate of divorces in India.
- The rate of divorce in India is about 13 per 1,000 marriages against 500 in 1,000 marriages in the UK.
- Divorces granted by the family courts increased by 350 per cent between 2003 and 2011 in Kolkata, and doubled in Mumbai between 2010 and 2014.
- Thousands of divorce petitions have piled up in family courts across the country.
A prenup can help avert emotionally-draining legal battles if the couple splits.
Family lawyers feel legalising prenup will empower women in terms of security and help in divorce cases that go on for several years over property, assets and maintenance things in which women often end up getting a raw deal.
Here what the Ministry says in the draft proposal.
It has been seen that cases related to dowry and alimony/ maintenance on dissolution of marriage go on for a very long time, often to the huge disadvantage of the women. A woman is often not able to get her rightful share due to sheer burden of the long process of law.
What Is A Pre-Nuptial Agreement?
A prenup agreement is a simple contract entered prior to marriage by parties intending to get married. It is duly signed and registered document which legal sanctity, outlining the distribution of assets and liabilities accrued during the sustenance of marriage or upon the failure of marriage, before the solemnisation of marriage.
In the draft proposal on prenup, the MWCD has said:
A pre-nuptial agreement, which has legal validity and is binding will speed up the process of settlement and save the separating husband and wife from the agony of uncertainty of settlement.
Across the world, most of the countries recognise pre-nuptial agreement. Some of them are Australia, Brazil, Canada, China, England, France, Japan, Luxemburg, Netherlands, New Zealand, Norway, Russia, Portugal, Spain, Switzerland, Taiwan, Thailand.
Importance of Prenup Agreement
According to the MWCD, the prenup agreement can result in major social impact related to women upliftment. The draft says,
- Prenup ensures speedy maintenance and expensive advocate fee can be avoided.
- Provision for maintenance after death of spouse can be ensured.
- Prenup can help couples, especially women, in case of illness if either of the party wants to divorce.
- Wives, generally give up careers to raise children can feel financially more secured.
- Prenup agreement can help avoid embarrassing situations such as sharing intimate details of marriage and photographs during the court proceedings.
In India there is no specific legislation or provision related to prenup agreement except nikaahnama under Muslim Personal Law. According to the sources in MWCD, though prenup agreement are currently not recognised in India but MoUs are being signed especially between couples in metro cities.
To legalise prenup, we have to amend the existing Indian Contract Act 1872. That is why Ministry is taking assistance from legal team, civil society members and other religious group to under the ramification if prenup becomes a law.Senior official, Ministry of Women and Child Development
Implementation of Prenup Agreement
In India, in order to recognize prenup agreement, the following laws need to be amended.
- Public policy as per Section 10 of the Indian Contract Act, 1872 along with Section 23, any agreement relating to marriage is void.
- The courts should adhere to the prenup agreement, in the interest of wife and children of the family.
- Domestic violence, dowry demands, female foeticide and infidelity to a wife, such actions will result in a triggering effect where the wife gets a significant financial award and can initiate divorce proceedings immediately.
- Prenup agreement must be in the form of a deed, duly registered and stamped and contain important clauses. The termination of such an agreement must only be with the consent in writing and signed by both the parties.
- Marriages taking place between Non Resident Indians (NRI), especially must come under the purview of prenuptial agreement being enforced in India. Such agreements must be given international recognition in foreign courts.
To implement prenup, amendment in all marriage related laws is required or a new law could be framed prescribing legal validity to the agreement with mechanism for its enforcement. And care should be taken that it caters to all citizens of India irrespective of their religion.
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