Blinding TransparencyJuly 15, 2019July 27, 2019
“I am not an advocate of frequent changes in laws and Constitutions but laws and Constitutions must go hand in hand with the progress of human mind.”
~ Thomas Jefforson
What is a Prenuptial Agreement?
A prenuptial agreement (or “prenup”), ante nuptial agreement, or a premarital agreement is an agreement entered into by the people intending to marry, prior to their marriage. The content of a prenuptial agreement may vary widely, but it generally includes provisions setting forth the distribution of assets, liabilities and issues relating to the custody of children in the event of separation or judicial divorce, death of a partner.
Understanding the Current Legal Status of Prenuptial Agreements in India
There is a void in the legal arena with respect to the validity of pre-nuptial agreements in India. In absence of any specific legal enactment, or any specific case laws, there exist differing opinions. However, the authors hasten to add that the general view (and erroneously believed, legal view) remains that they cannot be legally enforced. The impediments to their legal status under the various marriage laws (esp. Hindu Marriage laws) and Indian Contract Act, 1872 have been elucidated below:
With respect to Marriage Laws
With respect to the marriage laws, these agreements suffer with the impediment of going against the sacramental values enshrined therein. Marriage is treated as a “religious bond” as per Indian customs and the judiciary is inclined, in several cases (Tekait Mon Mohini Jemadai vs Basanta Kumar Singh, Krishna Aiyar vs Balammal) to preserve that. The concept of Hindu marriage, as envisaged by Indian courts in various judgements is more sacramental than contractual, and therefore holding these agreements valid in the eyes of law, would amount to sacrilege of this conception of marriage.
With respect to “Indian Contract Act, 1872”
Despite squarely fulfilling the requirements under Section 10, Indian Contract Act, 1872 (hereinafter “ICA”), Indian courts have been disinclined to provide legal force to these agreements on account of certain terms in these agreements violating public policy (Section 23, ICA provides for such agreements to be deemed as void). Although, the Indian Judiciary, hasn’t categorically declared these agreements to be against public policy in their intrinsic value, but has held the inclusion of few quintessential clauses like “separation clauses”, “no child clauses” to be void, as they violate public policy. Such an approach of the Indian judiciary can be made patent in the cases of Krishna Aiyar vs Balammal, Tekait Mon Mohini Jemadai vs Basanta Kumar Singh and A.E. Thirumal Naidu vs Rajammal Alias Rajalakshmi. This indirect route adopted by the Indian judiciary, has led to dormancy in the use of these by the Indian populace, and has withheld the benefits of prenups from being enjoyed by us.
What ought to be the law?
The first argument targeting the validity of prenups under the marriage laws is itself fragile as the sacramental nature of the marriage laws has morphed a lot in the past few years to include some contractual elements. In its pristine nature, the sacramental value of the Hinduism didn’t allow for dissolubility of marriage, love marriages (“Gandharava” or present day love marriage is considered to be “Aprashastha” or socially disapproved form of marriage as per the Hindu traditions). As per the Grahastha ashram in Rig-Veda, the concept of marriage as envisaged excluded sagotra marriages, inter-caste marriages (especially Pratilom marriages). The entire concept of marriage in Shastric tradition was greatly skewed towards caste and religious identities. However, the present day “Hindu marriage laws” do provide legal status to these practices prohibited/disapproved under the Hindu/Shastric customs. It is to be seen in this light that the sacramental nature of the Hindu marriage laws that is used to defeat the aspect of validity of prenups under the marriage laws, doesn’t exist in its pure form, but is in fact, quasi-sacramental.
However, the prime focus of this article is with respect to the legal validity of these agreements under the ICA. As explained in the previous section, a major challenge to the validity of these agreements is “their violation of public policy”.
It is provided under Section 23, Indian Contract Act, 1872, that wherein the object or the consideration of an agreement is opposed to public policy, the agreement is said to be unlawful, and therefore is deemed to be void and unenforceable. However, it is pertinent here to note that the ICA or any other legislative enactment doesn’t provide for any definitional interpretation of the word “public policy”. Indian Courts (as well as foreign Courts) have also shown their aversion to confine the ambit of “public policy” in a strict formulation. As a result of this, while the legal position is clear (settled) with respect to activities/agreements which patently violate public policy as they grossly harm public good the conundrum as to the validity of the agreements falling in the penumbra/fringe area continues to exist. One such example is that of the “pre-nuptial agreements”. However, the following few perspectives/ arguments would help us resolve this conundrum.
I. The changing judicial position across the globe with respect to Prenuptial agreements
The judgement of Rinvelt v Rinvelt passed by the Michigan Court of Appeal in 1991 would provide us with a fresh perspective to understand prenups in light of the public policy concern.
This case is pertinent here as a symmetrical analogy can be drawn with the position in India, primarily due to two reasons.
First, analogous to the Indian position, it is widely believed, and affirmed by the Apex Court of Michagan also that public policy operating in their country also favours marriage. That is one common ground between the two countries. Second, the traditional common law view prior to this judgement was identical to present-day Indian judicial position wherein prenuptial agreements in contemplation of divorce, separation etc are considered to be inconsistent with the sanctity of marriage and the state’s interest in preserving marriage and maintaining the financial security of divorced persons. The Michigan Courts then (and the Indian Courts now) only enforced such terms in a prenup as were with respect to division of property after death, etc.
It was in Rinvelt that the court tried to position the public policy of Michigan as favouring marriage and the content of a pre-nuptial agreement contemplating divorce as non rival entities, not contradicting each other’s existence. The court here observed that prenuptial agreement would rather act as a strengthening element in the sustenance of a marital relation, making the partners feel more secure about their future. It was held that public policy doesn’t refrain two mature adults to handle their own financial affairs.
The Supreme Court of Alaska in the case of Brooks v. Brooks, too, comprehensively discussed the evolving public policy considerations with respect to prenups and observed held that the traditional view (discussed in the previous case) was anachronistic, considering the change in societal perspective with respect to issues of marriage and divorce. Different criteria were laid down instead, for instance, whether or not the prenuptial agreement has been drafted without any coercion, or whether the terms of the agreement are fair or not?
II. Understanding Prenups in the light of K.S.Puttaswamy (Retd.) v. Union of India
The much famed “Privacy judgement” also provides us with a new perspective to understand these agreements. A strict scrutiny of the 597 page judgment would reveal the inclination of bench (all 9 judges, expressing 6 different opinions), to place “individual” at the core of the entire discussion. This is the one crucial feature about each of the overlapping six formulations in the judgement: they place the individual at the heart of privacy. The societal concerns, institutions acquire a secondary place.
The intensity and thrust accorded to the right of privacy in this recent Supreme Court verdict can be gauged in a better way, if we scrutinise the judicial march from the case of Govind v State of Madhya Pradesh to KS Puttasswamy (Retd) v. Union of India, and draw a comparative analysis.
Although, the former also recognised an individual’s right to privacy, the contours of this right were set in a very restrictive manner, which can seem to have been relaxed in the case of Puttaswamy. The relaxation made in the contours can be found in all six opinions, and can be sensed in their language and choice of words as well.
Starting from the very beginning, the court in the case of Gobind expressed its aversion to define privacy “because it doesn’t find a mention in the Constitution of India”, whereas Justice Nariman’s opined that “inalienable fundamental right to privacy resides in Article 21 and other fundamental freedoms contained in Part III of the Constitution of India” (Para 94). This reflects on the towering position accorded to this right in the recent judgement.
Further progressing towards the question of scope of this right, the bench in Gobind, tried to preserve the propriety of judges, by keeping that question unanswered/unsatisfactorily answered. However, the bench in KS Puttaswamy discussed at length, the scope and ambit of the right to privacy, with different dimensions and perspectives. This discussion makes space for the inclusion of prenups, as well. The bench, held with consensus that “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy.” A further elaboration of these personal choices can be seen in Para 157, where the Court held the matters concerning an individual to include “the sanctity of marriage, the liberty of procreation, the choice of a family life.” It can be easily sensed by now that the content and object of a prenup falls squarely within the ambit the above three phrases. The provision of “no child clause” and “future separation” in a prenuptial agreement, therefore, stands this test of legality, as these constitute “personal choices” of an individual.
Further in Para 141, privacy is described as having three distinct connotations: (i) spatial control; (ii) decisional autonomy; and (iii) informational control. Herein, “decisional autonomy” is defined to include intimate personal choices such as those governing reproduction.
We can see that the court in this case seeks to establish a pro-liberty state, wherein individuals have been empowered to govern their pattern of life. The court is skewed towards “individual” freedom, and disfavours state interference in lives of the people. Contrasted with Gobind, where the bench recognises Privacy, in the first place, but only with the caveat of it not violating “compelling state interest,” Puttaswamy provides fresh breathing space to liberalists, pro-choice activists, and a new perspective to look at prenups.
Prenuptial agreements have become extremely popular across the globe, owing to the future stability in life that they offer. However, the Indian populace has not been able to enjoy these benefits, partially due to the unawareness among the masses, but more so due to the aversion of the Indian legislative authority and the judiciary towards accepting these agreements. It must be seen that prenuptial agreements have nothing that contradicts the Indian ethos or public policy considerations, and it is in complete public interest to provide legal force to these “need of the time” agreements.
ABOUT THE AUTHOR(S)
Paras Ahuja is a third year under-graduate law student pursuing B.A., LL.B (Hons.) at the National Law University, Jodhpur. She has immense interest in the field of Constitutional law, and writes generally on the intersection of law and social issues.
Nishtha Ojha is a third year under-graduate law student pursuing B.A., LL.B (Hons.) at the National Law University, Jodhpur. She is a profound believer of the liberalist school of thought, and advocates its inclusion in the legal arena.
In Content Picture Credits: Hindustan Times