Move on, Prenup Agreement Shouldn’t Turn Out to be Half-Baked

In a society ridden with vices like dowry, prenuptial agreement may not be helpful, writes Nishtha Gautam.

Yesterday I fed laddoos to my colleagues. When told that those were my shaadi ka laddoos, almost each one of them was taken aback only to heave a sigh of relief later when I joked about successfully renewing my ‘contract’ after seven years. In an era of decreasing life spans of nearly everything from electronic gadgets to our patience, it is only natural that the validity of sapta-padi be brought down to seven years instead of seven lives. Little did I know during that banter that I would soon be looking at marriage as a real contract with prenuptial agreement, and not the sacred vows, as its pivot.

Women and Child Development minister, Maneka Gandhi has shared her intent of introducing prenup agreements as legally binding documents for Indian couples. Consultations are proceeding with eminent lawyers, women right activists and NGOs on the tenability of prenups in Indian context where marriages are not only made in heaven but also make many businesses thrive. Traditionally, only Muslim couples have been entering into matrimony with a version of prenup agreement in the form of ‘haq mehr’- a defined amount, in cash or kind, the husband is liable to pay the wife at the time of marriage.

Marriage Saving Tool Or Pressure Tactic?

• In a society with skewed gender roles, prenups may safeguard a married woman’s financial interests
  
• In case of married women, it is trickier since many working women do not have right to their own monthly earnings
  
• In case of couples seeking a divorce through mutual consent, prenups are likely to be an important tool for saving precious court time
  
• Prenups will likely become another marriage saving tactic; with financial implications attached to it, they may give rise to marital hypocrisy
  
• In a society ridden with vices like dowry, how empowered will the bride and her family actually be to draft a fair and equal agreement?
  

Will Prenups Safeguard Women’s Interests?

In a society with skewed gender roles, prenups may appear to be safeguarding a married woman’s financial interests. Absolute financial independence of women is still a distant dream in India. In the case of married women, it is a trickier terrain. Many a working women do not have the right to their own monthly earnings.

In many a case, women relocate to the husband’s station giving up their jobs and thus the means to ensure financial security for themselves. In fair and equal domestic economy, woman’s investment in marriage and household shouldn’t be rendering her financially dependent on the husband and his family, irrespective of the longevity of the union. Gandhi’s move to make prenups legally binding attempts to address the same.

The Flip Side

In the case of couples seeking to dissolve their marriage through mutual consent or contestation, the prenups are likely to be an important tool for saving precious court time and sparing the agony to the divorce seeking partner. The long drawn divorce battles are a drain on couples collectively as well as individually. Usually, women are the ones with limited resources and therefore even the grant of desired alimony/maintenance is of little consequence after paying hefty legal bills.

The flip side of the prenups is that, ironically, they will likely become another marriage saving tactic. With financial implications of dissolved marriage being pronounced at the outset, will not the marital hypocrisy rise by forcing the marriage to work? Marriage as a sacrament is past its expiry date. But does it need to be replaced with marriage as a financial, legal bond? There is a conundrum there. Additionally, in a society ridden with vices like dowry, how empowered will the bride and her family actually be to draft a fair and equal agreement? Deliberations on introducing prenups need to treat the inheritance laws as well as the prevalence of dowry as key concerns. With a stated aim of empowering women, the ministry’s move cannot afford to be a half-baked one.

[The writer is Associate Fellow (Gender) at Observer Research Foundation]