Prenuptual Marraige Agreement

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Page 1 Saturday, October 28, 2023

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© 2023 W.B National University Of Juridical Sciences.
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(2019) 12 NUJS L Rev 217
Prenuptial Agreements in India : An Analysis of Law and Society
PRENUPTIAL AGREEMENTS IN INDIA : AN ANALYSIS OF LAW AND SOCIETY

by
Amrita Ghosh and Pratyusha Kar*
Prenuptial agreements are now being widely used across the world as effective
instruments of delineating spousal rights in the course of subsistence of marriage as
well as in the event of termination of marital relations. Yet the Indian State has
demonstrated reluctance in attributing legal status to such instruments. The Indian
position on prenuptial agreements can be described as uniquely ambiguous. On one
hand, the nikahnama, a prenuptial agreement is recognised as an essential feature of
Muslim marriages in India and the role of prenuptial agreements in determinations at
the time of termination of Christian marriages is legally acknowledged. On the other
hand, the enforcement of prenuptial agreements in relation to other religious
communities has largely been dependent on judicial interpretation. Noticeably, in
recent discussions concerning prenuptial agreements in India, societal perspectives
have taken up a dominant role, in fact to the extent of overshadowing perspectives of
the key stakeholders in the matter. In this paper, therefore, we endeavour to shift the
focus back onto the key stakeholders by assessing the potential benefit that prenuptial
agreements can have for couples in India and delineating the models of such
agreements which prospective spouses can consider adopting for managing their
marital relations.
TABLE OF CONTENTS
I. Introduction 218
II. An Overview of Prenuptial Agreements in India 220
A. The Public Policy view of Prenuptial Agreements 222
B. Judicial Perspectives on Prenuptial Agreements 225
1. Prenuptial agreements in Hindu marriages 226
a. Invalid prenuptial agreements 226
b. Valid prenuptial agreements 228
2. Prenuptial agreements in Muslim marriages 229
a. Invalid prenuptial agreements 229
b. Valid prenuptial agreements 231
C. Prenuptial Agreements in Other Communities in India 233
D. Public Reception towards Prenuptial Agreements 234
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III. Addressing Resistance to Prenuptial Agreements 235

A. On the Effect on the Sanctity of Marriage 235
B. On the Potential of Misuse of Emotional Affinity 237
C. On the Possibility of Exploitation of Vulnerable Women 239
D. On Public Policy Concerns 240
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IV. The Status of Prenuptial Agreements : A Global Overview 241

A. Prenuptial Agreements in England 242
B. Prenuptial Agreements in the United States of America 247
C. Prenuptial Agreements in Canada 250
D. Prenuptial Agreements in China 254
E. Prenuptial Agreements in Turkey 256
V. Conceptualising Model Prenuptial Agreements for India 258
A. Viewing the Nikahnama as an Instrument for the Benefit of Muslim Women
261
1. Suggested clauses for a model nikahnama 263
a. A ‘no polygamy’ clause 264
b. Expressly negating the need of nikah halala 266
c. Clause determining and guaranteeing mehr in addition to maintenance
267
d. Determination of maintenance payable after iddat period 268
e. Clause prohibiting nikah mut'ah 269
f. Delineating irretrievable breakdown of marriage as a ground for divorce
270
g. Allowing for resisting restitution of conjugal rights under specific
circumstances 271
h. Delegation of right to divorce to the wife 272
B. Potential Clauses for a Pan-India Model of Prenuptial Agreement 274
1. Clauses related to assets 275
2. Clauses related to children 279
3. Clauses related to spousal rights and duties 280
4. Lifestyle clauses 282
5. Operational clauses 284
VI. Conclusion 284
I. INTRODUCTION
Prenuptial agreements are gradually gaining popularity among young couples, who
are seeking to protect their assets and attempting to negotiate the best deal for each
of them in case of a possible end to their marital bond.1 While the rising rates of
divorce are understood to be a factor influencing couples to sign prenuptial
agreements,2 the changing attitude towards marriage and the increase
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in independence of women3 can also be viewed as responsible for the rising

acceptance and use of prenuptial agreements.
While the use of such agreements continues to grow in Western countries,4 Indian
couples seeking to follow this development often face a difficult situation owing to the
fact that the law regarding prenuptial agreements is still at a nascent stage in India.5
While the benefits of prenuptial agreements are manifold,6 in light of the inaction of
legislators with respect to the formulation of relevant laws or policies and the
uncertainty in terms of the judicial stance towards prenuptial agreements, the validity
of prenuptial agreements in India remains a question without a clear answer.
In this paper, we shall attempt to address the problem of ambiguity surrounding
prenuptial agreements in India and provide some model clauses of such agreements
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which may be capable of being implemented while taking into account the diversity of
personal laws governing matters of marriage and divorce in the country. In pursuance
of the same, Part II shall highlight the judicial stance projected by different high
courts and the Supreme Court in relation to prenuptial agreements. The section shall
analyse various cases in an effort to compare and contrast the viewpoints put forth by
different courts and deduce emerging trends with respect to the treatment of
prenuptial agreements in India.
Thereafter, recognising the criticisms that prenuptial agreements may face from a
societal perspective, we put forth our rebuttals to some criticisms which may be raised
against prenuptial agreements in Part III. In Part IV, we look at different models
pertaining to prenuptial agreements which have been adopted in different foreign
nations, with a view to understanding the nature of prenuptial agreements which have
been considered viable across the world. Based on the experiences of Indian society
and learning from the practices around the world, we present two sets of clauses in
Part V— one set of which in our opinion shall be befitting of a model nikahnama while
the other set can be used in prenuptial
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agreements on a pan India basis. The final part contains our concluding remarks
where we comment on our vision of the implementation of prenuptial agreements in
the Indian context.
II. AN OVERVIEW OF PRENUPTIAL AGREEMENTS IN INDIA

The accelerated progress of Indian society has resulted in the emergence of several
unique social issues which have been sought to be addressed through the prolific
interpretation of constitutional basic guarantees in the post Emergency era, which has
also assisted in making the judicial process more accessible and participatory.7 The
Indian judiciary has principally acknowledged time and again many such
developments in Indian society through their acceptance and accommodation in
different judgments.8 Eventually in many cases, this has also inspirited law makers to
draft necessary statutes. The results of such social and judicial activism, to name a
few, are Protection of Women from Domestic Violence Act, 2005, perceiving the
percept of domestic violence in a family, judicial interpretation of Muslim Woman
(Protection of Right on Divorce) Act, 1986, justifying the right to receive alimony even
after iddat period by divorced Muslim women,9 and the Sexual Harassment of Women
at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
This progression in the legislative arena coupled with the opening up of new
economic avenues has arguably helped to empower Indian women. More and more
women are now economically independent with deeper self-realisation of inner
strength and are thus, empowered with the capability to walk out of a bad marriage.10
There has traditionally been a social stigma associated with divorce, with female
spouses being typically blamed for it.11 However, the rapid modernisation of Indian
society has arguably meant that women are now more prone to rebel against
regressive ethos, which is demonstrated with more women seeking for the roles of
homemaker and provider to be shared between husband and wife in a marital set-
up.12
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Modernisation, educational and financial empowerment of women alongside

changing notions of marriage13 have together contributed towards the dilution of the
stigma encircling divorce.14 This empowerment of women coupled with the emergence
of Mahila Panchayats15 or ‘All Women Alternative Courts’ have provided women with
greater opportunity to voice their grievances related to their marital lives.16 This has
resulted in rapid increase in divorce rate from 1 in 1000 ten years ago to about 13 in
1000 presently.17 It is worth noting though that initiation of divorce proceedings is
higher among women belonging to socio-economic classes which appear to have
better access to legal recourse than others. As found by Hasina Khan, founder of the
Bebaak Collective, a Muslim women's organisation based in Mumbai, one important
reason for the low divorce rate among Muslim women (23.3 per cent against 68 per
cent as per 2011 Census) has been the State's deficiency to empower Muslim
women.18
Due to the emotional and financial implications involved, divorces have the
potential to embroil spouses in courtroom battles over prolonged periods, bargaining
on issues such as distribution of assets, maintenance and child custody,19 leading to
loss of both money and time. Though not intended at the time of forging a marital
bond, termination of marriage is a likely possibility in modern times which should be
given due regard by couples intending to get married. In this regard, prenuptial
agreements can be of immense assistance for planning ahead for such an eventuality,
if it were to unfortunately arise, with negotiated terms clearly delineating the
obligations of the spouses both during the marital period and post termination of
marriage.20
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A. THE PUBLIC POLICY VIEW OF PRENUPTIAL AGREEMENTS

Prenuptial agreements, though not specifically regulated under provisions of Indian
personal laws, have evidently been a fixture in Indian society since long.21 Within the
legislative domain, §40 of the Divorce Act, 1869, applicable to dissolution of Christian
marriages, specifically provides that district courts may look into the existence of
prenuptial agreements and refer to terms contained therein while passing a decree on
the settlement of property upon divorce. On the other hand, acceptance of prenuptial
agreements in the context of Hindu marriages has not as seamless, given that
marriage among Hindus is treated as a religious bond rather than a contract.22
A prenuptial agreement due to its contractual character,23 in the absence of specific
regulating provisions under Indian personal laws, could arguably be governed by
provisions of the Indian Contract Act, 1872.24 It is therefore, not surprising that courts
have generally preferred to declare prenuptial agreements as void on account of being
against public policy.25 This tendency of courts has been specifically demonstrated
against prenuptial agreements which in the view of the courts appeared to promote
separation or sought to alter the tenets of the personal law on the matter of marriage.
The implications of such contractual character of prenuptial agreements have been
discussed in later in this paper.
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Given the resistance towards accepting prenuptial agreements, particularly due to

the religious stance of the Hindu religion towards marriage, we submit that prenuptial
agreements should not by themselves be conceived as offensive to the religious notion
associated with marriage. In fact, it is interesting to note that the Ketubah marriage
contract intrinsic to marriage under the Jewish religion, where written commitments
are given by the groom before nuptials to provide economic safeguards to the wife in
case of his death or divorce, is also a type of prenuptial agreement.26 Further,
prenuptial agreements are also commonplace to marriages under Islam, which regards
marriage as a civil contract.27 Prenuptial contractual conditions related to Muslim
marriage may include any condition that is allowed under Islamic law, provided that it
is agreed upon by both parties.28 Agreement to pay Mahr Mu'ajjal or Mu'akhkhar,
which is to be paid to the wife after separation or death of the husband, is a well
known example of a term of Muslim prenuptial agreements.29
Nevertheless, it is important to keep in mind that an agreement whose object or
consideration is against public policy is invalid in contractual terms.30 It is thus,
important to reflect on the fact that certain judicial holdings have over time
pronounced several prenuptial agreements as being void on account of being against
public policy, some of which are discussed in this section.31
In the case of Tekait Mon Mohini Jemadai v. Basanta Kumar Singh,32 the Calcutta
High Court found a prenuptial agreement providing that the husband would never take
his wife away from her mother's house and would follow the instructions of the wife's
mother at all times to be void on the ground of public policy. Similarly, a prenuptial
agreement requiring the husband to perpetually reside in his wife's house was held to
be against public policy by the Allahabad High Court since it was viewed to constitute
a restriction on the liberty of the husband.33
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So also, a prenuptial agreement providing for payment of a fixed amount of money

to the wife in case of her choosing to leave her husband for whatsoever reason was
held to be against public policy by the Madras High Court in Krishna Aiyar v.
Balammal.34 Further, the Bombay High Court in Bai Fatma v. Alimahomed Aiyeb35 held
that a prenuptial agreement specifying maintenance for wife in the event of
prospective separation, although entered into by a Mahommedan couple, was against
public policy since the agreement encouraged separation in addition to providing for it.
Public policy was also cited by the Jammu and Kashmir High Court in one instance to
hold a prenuptial agreement providing that the husband would live like a servant in
the house of his father-in-law to be unenforceable.36
At the same time, it is to be noted that in Appibai v. Khimji Cooverji,37 a prenuptial
agreement requiring the couple to reside in Bombay after marriage was held by the
Bombay High Court as not being against public policy, given that it did not impose a
restrictive obligation on either spouse to reside in Bombay permanently. Further,
another prenuptial agreement between the couple providing that the wife would be
given ornaments if she married the husband, though unenforceable due to
uncertainty, was not found to be against public policy. In fact, the Bombay High Court
in the case opined that a prenuptial agreement followed by marriage is valid and
enforceable, with marriage constituting the consideration for the agreement.38
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In another instance, a prenuptial agreement providing for separate maintenance for

a Mohammedan wife was held by the Calcutta High Court as not opposed to public
policy.39 Similarly, a prenuptial agreement providing for maintenance for the wife in
case of future separation was not hit by public policy as per the decision of the
Allahabad High Court.40 An agreement requiring payment of specified amount for
leaving the house of the father-in-law and providing for operation of divorce in case of
failure to pay the amount was also held to not be against public policy by the Jammu
and Kashmir High Court.41
Given these viewpoints presented by Indian courts regarding the possibility of
conflict of prenuptial agreements with public policy, it becomes important to briefly
consider what the idea of ‘public policy’ entails. According to Lord Atkin, one of the
most eminent judges of the last century, the doctrine of public policy “should only be
invoked in clear cases in which the harm to the public is
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substantially incontestable, and does not depend upon the idiosyncratic inferences of a
few judicial minds”.42
In the notable case of ONGC Ltd. v. Saw Pipes Ltd.,43 the Supreme Court of India
observed that there is no precise definition of ‘public policy’ as it varies from
“generation to generation and from time to time” and therefore, the idea of ‘public
policy’ is ambiguous and its “narrow or wider meaning” depends on the situation in
which it is applied. In reaching this conclusion, the Hon'ble Apex Court referred to the
case of Central Inland Water Transport Corpn. Ltd. v. Brojo Nath Ganguly,44 where it
was held that”(t)he concept of what is for the public good or in the public interest or
what would be injurious or harmful to the public good or the public interest has varied
from time to time”. Resultantly, the new concept of ‘public policy’ takes the place of
old one and what was considered once against ‘public policy’ may be upheld by the
court today and vice versa. Further, the Supreme Court also relied on the dictum Lord
Davey in Janson v. Driefontein Consolidated Gold Mines Ltd.45 stating that “(p)ublic
policy is always an unsafe and treacherous ground for legal decision”.
Additionally, Justice Reddy of the Andhra Pradesh High Court in Ratanchand
Hirachand v. Askar Nawaz Jung46 observed that promotion of public good and
prevention of public damage are the touchstones of ‘public policy’ and judges should
take decisions on this issue not as a legal luminary but as an “experienced and
enlightened” member of the community.
Looking to the West, the landmark judgment of the Supreme Court of the United
Kingdom in Radmacher v. Granatino47 (‘Radmacher’) updated the ‘public policy’
position on prenuptial and postnuptial agreements, holding that prenuptial
agreements do not clash with the ‘public policy’ as long as they are jointly and
willingly assented to and should therefore be enforced unless it would result in
unfairness to either of the parties. Unfortunately, the position in India on the
enforceability of prenuptial agreements, as demonstrated by the above discussion, is
not as clearly demarcated.
B. JUDICIAL PERSPECTIVES ON PRENUPTIAL AGREEMENTS
Hence, we review the important cases with regard to two key religious
communities—those related to Hindu personal law followed by cases
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concerned with Mohammedan personal law, in an attempt to discern possible patterns

in the interpretations made by the courts.
1. Prenuptial agreements in Hindu marriages

Case laws indicate there have been various instances where cases involving
prenuptial agreements entered into in the context of Hindu marriages have come forth
for interpretation before Indian courts. The trend in judicial interpretation in relation to
such agreements is worth observing.
a. Invalid prenuptial agreements
In Paigi v. Sheonarain (‘Sheonarain’),48 the plaintiff husband, prior to his marriage,
entered into a prenuptial agreement wherein he agreed to settle in his mother-in-law's
house with his wife. However, he subsequently left the house, refused to return to the
house and began living with a Muslim woman who he had taken as his mistress.
Thereafter, he filed a suit for restitution of conjugal rights. In its verdict concerning
the appeal from the defendant wife, the Allahabad High Court permitted the plaintiff to
enjoy conjugal rights after “restoration to his caste” and ordered the defendant to
return to her husband within one month of such restoration.49 It is worth noting that in
this case, a plea taken by the defendant wife that the plaintiff husband had acted in
contravention to their prenuptial agreement, based on which she had agreed to marry
him, and hence he was not allowed to enforce his conjugal rights, was not entertained
by the High Court and in fact seen as “absurd”.50
In Tekait Mon Mohini Jemadai v. Basanta Kumar Singh,51 (‘Mon Mohini’) the parents
of the husband and the husband himself signed a pre-marriage agreement when he
was a minor stating that he would reside in the house of his mother-in-law and would
abide by the instructions of his mother-in-law. Yet, after living for about 15 years as
such, the husband left his mother-in-law's residence on account of the arising of some
differences and demanded that his wife reside with him in his residence. The Calcutta
High Court relied on the Sheonarain case and some foreign judgments52 to hold that
this pre-marital agreement was opposed to public policy as it was meant to
permanently control the rights of the husband granted by the Hindu law, which as per
the court could instigate future separation of the couple. The Court thus, declared the
prenuptial agreement to be invalid.53
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In the case of Krishna Aiyar v. Balammal54 (‘Krishna Aiyar’), a petition was filed by
the husband for restitution of marital rights. Shortly after filing the suit, the couple
compromised to stay together and the husband then promised to pay some alimony to
the wife in the event of future separation. However, the wife never returned to
conjugal life after the agreement. Thus, the agreement was not prenuptial.
Nonetheless, it is worth noting that the Madras High Court referred to the Mon Mohini
case and declared the agreement in question to be void stating that it was against the
marital obligation under Hindu law.55 The court also held that the agreement was
against public policy as future separation was envisaged in the agreement.
In A.E. Thirumal Naidu v. Rajammal,56 the question before the Madras High Court
was whether a prenuptial agreement between a husband and a wife to live separately
would go against the claim for restitution of conjugal rights made the wife. The court
placed reliance on the Krishna Aiyar case and opined that as marriage under Hindu law
is not merely a contract but is sacramental in nature, a prenuptial agreement for
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future separation is contrary to the public policy and therefore, invalid.57

The case of Sribataha Barik v. Padma58 involved a revision petition in the Orissa
High Court against the order passed by the sub-divisional magistrate to pay the wife a
monthly sum of INR 40 for the maintenance of herself and her child. In this case,
there was a pre-marital agreement that the husband would stay with the wife in her
residence, but after a few years of residence the husband left his in-law's house,
though he continued to stay in the same village with his mother separately. He also
invited his wife and the child to stay with him and his mother. The court referring the
Mon Mohini case observed that the wife must stay with the husband as per rule of the
Hindu law and the prenuptial agreement was invalid as it was opposed the public
policy.59
As established earlier, public policy has been the recurring concern of Indian courts
in refusing to give effect to prenuptial agreements. From a study of the
aforementioned cases, the implementation of the public policy argument in
invalidating prenuptial agreements has ostensibly taken shape in two distinct ways.
Firstly, prenuptial agreements with clauses seeking to override rights and entitlements
provided under Hindu personal law and tradition have been struck down on public
policy grounds. Secondly, prenuptial agreements with clauses which are perceived by
the court as having the potential to encourage future separation of the married couple
have also been interpreted as being against public policy.
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b. Valid prenuptial agreements

Although there exists a body of Indian case law opposing the validity of prenuptial
agreements in the context of Hindu marriages, it is worth noting that there are also
some cases which have sought to accord validity to prenuptial agreements.
In Pran Mohan Das v. Hari Mohan Das,60 a person agreed to marry a woman based
on the promise of her father to gift a house to his daughter. After the marriage, the
plaintiff father shifted the possession of the house through unregistered gift. The
couple maintained possession of the house for several years and sold it to some other
persons. The wife's father later sued to recover the house. Here, the Calcutta High
Court held that the prenuptial agreement was good and valid and the principle of “part
-performance of a contract” estopped the plaintiff from recovery of the property.61
Moreover, as the agreement in question was not a marriage brokerage contract, it was
not found to be opposed to public policy.62
Further, in CIT v. Mansukhrai More,63 the High Court of Calcutta held that the
transfer of property as per prenuptial agreement for the accomplishment of
commitments undertaken was justified and did not attract §16(3) of the Indian
Income Tax Act, 1922. In Sunita Devendra Deshprabhu v. Sitadevi Deshprabhu,64 the
prenuptial agreement was among the documents considered while deciding on a
dispute regarding separation of assets.
In other case, the High Court of Bombay in Appibai v. Khimji Cooverji65 sought to
take a balanced view on prenuptial agreements, holding that the dictum in the Mon
Mohini case and the Krishna Aiyar case would not be valid where the husband had
abandoned the wife and it would also not attract the issue of public policy violation.66
It was observed that although Hindu law had made the husband tantamount to a
‘deity’ or ‘god’ for the wife, this would not allow a husband to desert his wife, deny the
marriage or ignore her.67 The court further stated that as per the prenuptial
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agreement, the wife should be granted the requested relief of separate maintenance
and residence as long as there was no confusion about her chastity. However, the
Court did not give any verdict in favour of the wife receiving ornaments, which was the
subject matter of another prenuptial agreement, from the defendant husband due to
lack of certainty.68
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In this context, a brief discussion of Sandhya Chatterjee v. Salil Chandra

Chatterjee,69 though it concerns a post-nuptial agreement, would be relevant towards
understanding how a logical contractual agreement between the husband and wife will
not be opposed to public policy and enforceable. In this case, the Calcutta High Court
while referring to the case of Printing and Numerical Registering Co. v. Sampson70
further held that while declaring a contract to be invalid for being contrary to public
policy, a court should also consider the paramount public policy concern in terms of
respecting free and voluntary contract between two adult persons.71 Thus, it was
observed that with the change of time and advancement of the society, law changes
and the wife's demand for separate maintenance when living independently was
justified and not against public policy.72
A review of these case laws relating to Hindus indicates that with the passage of
time, the decisions of Indian courts have slowly but steadily changed their direction.
Yet, it is interesting to note that courts in most cases have not accorded validity to the
prenuptial agreements by themselves. Instead they have adopted two methods to
interpret prenuptial agreements before them as valid—first, by enforcing the terms of
the prenuptial agreement alongside other legal principles, such as those pertaining to
property law, and second, by creating exceptions within the broader framework of
judicial precedents which have viewed prenuptial agreements as invalid due to their
conflict with public policy.
2. Prenuptial agreements in Muslim marriages
While it is established that marriage is a civil contract for Muslims, a study of the
trend in case laws relating to the interpretation of prenuptial agreements in Muslim
marriages by Indian courts brings forth several interesting findings.
a. Invalid prenuptial agreements
In the case of Bai Fatma v. Alimahomed Aiyeb,73 the question before the Bombay
High Court was whether the agreement between a Muslim husband and his wife,
providing for payment of specified maintenance in the event of future separation was
valid. The court observed that an agreement providing for and thereby encouraging
future separation between spouses must be pronounced void on account of being
against public policy.74 The court had referred to English law of the time while
delivering this judgment. Interestingly, in the present day
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situation, the Supreme Court of England in the Radmacher case while upholding
prenuptial agreements has observed that “(t)he reason why the court should give
weight to a nuptial agreement is that there should be respect for individual autonomy.
The court should accord respect to the decision of a married couple as to the manner
in which their financial affairs should be regulated.”75
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In Khatun Bibi v. Rajjab,76 a husband sued his wife for restitution of marital rights.
The wife argued that she had divorced her husband due to non-fulfilment of the
prenuptial agreement which stated that the ‘would be’ husband must stay with his
wife in his mother-in-law's house and would not live in any other place without the
permission of his prospective wife or mother-in-law, and in case of any deviation the
mother-in-law might arrange remarriage of her daughter to someone else. The High
Court of Allahabad held that binding the liberty of the husband was against public
policy. Moreover, it was observed that premarital agreement forcing the husband to
reside in the mother-in-law's house for the entirety of the marital relation was invalid
under Mohammedan law.77
Under the prenuptial agreement in Ahmad Kasim Molla v. Khatun Bibi78 (‘Kasim
Molla’), the prospective husband promised that if any harsh treatment was done by
him, his bride could leave him and he would be bound to pay her an amount as
subsistence allowance and house rent each month. The husband ill-treated the wife
and the wife left him. Thereafter, the husband sent a talaknama which was not
received by the wife. The High Court of Calcutta held that for divorce to take effect it
was not necessary that the talaknama must reach but for getting maintenance the
bride must know about the divorce as the iddat period would be counted from the time
that she gained knowledge about it.79 It was also held that since it could not be
proved that the bride had knowledge of the talaknama prior to institution of the suit,
she had right to maintenance for the interim period.80 The Court further observed that
as in the kabinnama i.e. prenuptial agreement, no period for subsistence allowance
was mentioned, divorce was not mentioned and the parties referred to as bride and
bridegroom, the plaintiff husband did not have any responsibility to pay any
maintenance allowance after dissolution of the marriage and the defendant wife was
only entitled to get maintenance expenses for the iddat period. Justice Costello,
however, mentioned that the verdict contained bad law and clarified that he had
strictly followed the legal points and was not bound by the ethical aspects of the
matter.81
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A review of the aforementioned cases indicates that public policy concerns in

relation to the validity of prenuptial agreements are not limited to such agreements
which are entered between Hindus. Even among prenuptial agreements entered into
between Muslim couples, courts can bring in public policy concerns to invalidate the
agreement. The tendency of courts in this regard appears to has been to particularly
invalidate those agreements which specifically appear to be encouraging separation of
the spouses. Further, agreements with terms restricting the freedom of one of the
spouses or going against Mohammedan law have been viewed to be invalid. There also
appears to be a tendency to strictly interpret the clauses of the nikahnama, which
serves as the prenuptial agreement.
b. Valid prenuptial agreements
The general treatment of courts towards prenuptial agreements entered in the
context of Muslim marriages though appears to be positive.
The High Court of Allahabad in the case of Mohd. Muin-Ud-Din v. Jamal Fatima82
(‘Muin-Ud-Din’), upheld the validity of a prenuptial agreement which had provided
that the husband would pay maintenance in addition to dower debt in case of
dissension between the spouses. In Buffatan Bibi v. Sk. Abdul Salim83 (‘Buffatan Bibi’)
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the plaintiff husband sued the wife for restitution of conjugal rights. The wife alleged
that since the husband had failed to fulfil the terms of kabinnama duly executed by
the plaintiff as a prenuptial agreement, she had divorced herself and was not his wife
anymore. The Calcutta High Court observed that Mohammedan law allowed a person to
confer his power of repudiation of marriage to his wife.84 It held that as part of the
kabinnama, the husband had authorised the wife to stay in her father's house in case
of animosity and conferred on her the power to get divorced if he failed to maintain
her for six consecutive months, and this was in the nature of a valid agreement.85
In Saifuddin Sekh v. Soneka Bibi,86 the plaintiff-respondent wife dissolved the
marriage as the husband could not fulfil the terms of kabinnama. As per the prenuptial
agreement, the husband was barred from bringing any of his former two wives to stay
with him without the consent of the plaintiff wife and if he did so, the plaintiff wife
would be entitled to divorce him. Here, the agreement neither put any impediment to
enjoy conjugal life on the other two wives nor obstructed the husband to hold
relationship with the other wives. It only said that
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he had to take consent from her before bringing any of his former wives to reside with
him. Therefore, according to the Gauhati High Court, the agreement was not by
effected by §23 of the Indian Contract Act, 1872 as it was not opposed to public
policy.87
In Razia Begum v. Sahebzadi Anwar Begum,88 as per the prenuptial agreement, the
husband agreed to pay the plaintiff wife an amount per month as kharch-e-pandan but
stopped payment without providing any reasons. The plaintiff approached the Court to
declare her entitlement to receive monthly kharch-e-pandan as per prenuptial
agreement. However, the husband just after ten days of filing the suit admitted the
entire claim of the plaintiff, so the viability of the claim was not decided therein.
However, based on the nature of legal interpretations discussed, it appears that the
claim if it were not to have been admitted would have been entertained by the
relevant court.
The case of Mohd. Khan v. Shahmali89 is a thought-provoking so far as matters
related to prenuptial agreement, Islamic law and public policy are concerned. The case
was that the marriage had taken place following a prenuptial agreement where the
defendant husband had agreed to live as a khana damad in the house of the plaintiff's
father and would have to pay a sum of money as expenditure towards marriage
ceremony if he left. As per the terms of the agreement, non fulfilment of this condition
would automatically lead to divorce. The husband ran away from the house for four
years and did not fulfil the marital obligations. The question to the second appellate
court i.e. the High Court of Jammu & Kashmir was whether the agreement was
unenforceable as per Muslim law and public policy. The High Court observed that the
practice of khana damad in the Kashmir valley was usual, with the practice being
voluntary, where the khana damad customarily enjoyed several amenities, and a
substantial sum of money was generally spent by the father-in-law for the marriage.
Therefore, payment by the son-in-law as per the terms of the agreement would not be
opposed to public policy.90 While referring to the Muin-Ud-Din and the Buffatan Bibi
cases, the court further held that divorce transpired from such agreement would not
be against Muslim law.91
A study of these cases indicates an orientation of Indian courts towards giving
effect to prenuptial agreements entered into by Muslim couples. It is worth noting that
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initial invalidation of such agreements was based partly on the existing stance on
public policy promulgated by British courts. Given that in the late 19th century there
appears to have been a simplistic understanding in vogue that planning ahead for
separation indicated intent to separate in the future,
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judicial perceptions of public policy were shaped accordingly. Yet, later cases appear to
have adopted a more liberal stance, with courts taking into account factors such as the
circumstances in which the prenuptial agreement was entered and whether there are
inherent restrictions on the rights of the spouses while considering the public policy
question.
C. PRENUPTIAL AGREEMENTS IN OTHER COMMUNITIES IN INDIA

In this context, it is also necessary to peruse the case of Mozelle Robin Solomon v.
R.J. Solomon,92 Indian Divorce Act, 1869 and Goa's Civil Code in order to understand
the legal position of prenuptial agreements vis-à-vis other applicable laws. In Mozelle
Robin Solomon v. R.J. Solomon, law related to the marriage and divorce among Jews
was reviewed and it was affirmed that “Jewish marriage is a contract and not a
religious sacrament”.93 By extension therefore, it is argued that similar to the
treatment of prenuptial agreements in the context of Muslim marriages, which are also
in the nature of civil contracts, prenuptial agreements could also be capable of being
given effect in relation to Jewish marriages in India, subject to the broader principles
of a modernised public policy framework. In terms of Christianity, the position is
largely straightforward as it is already established that in relation to separation of
Christian married couples, prenuptial agreements entered into between them can be
considered by Indian courts while passing orders on the settlement of property under
the Divorce Act.94
Attention should also be given to understand the position in Goa, which has in place
a uniform civil code based on the Portuguese Civil Code, 1867, meaning that personal
laws do not have any influence there.95 A prenuptial agreement for property
distribution is allowed under Portuguese Civil Code.96 If no agreement is made it is
presumed that they have married under communion of assets.97 Communion of
property entitles and safeguards the wife's right to receive equal share in the property
brought into the marriage by both spouses. The position of law provided under Goa's
Civil Code has been appreciated widely, with the Supreme Court of India in the case of
Damodar Ramnath Alve v. Gokuldas
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Ramnath Alve98 observing that the Portuguese Civil Code has strengthened the “basic
unit of the society-the family-by safeguarding the interests of the children and of
widows”.
D. PUBLIC RECEPTION TOWARDS PRENUPTIAL AGREEMENTS

Although there appears to be a positive trend towards recognition of prenuptial
agreements within the judiciary, due to the nebulous contours of public policy and the
absence of legislative reference to prenuptial agreements, whether a prenuptial
agreement will finally be given affect in a court of law remains somewhat
indeterminate.
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In spite of this, an increasing number of couples belonging to affluent socio-

economic class appear to showcase preference for entering into prenuptial
agreements.99 In cities like Mumbai and Delhi almost 20 percent marriages are
reported to be involving prenuptial agreements,100 with these agreements being meant
to serve as predetermined arrangements about matters associated with the spouses
such as the future dealings with finances, individual liabilities, and child custody.101 In
most of the cases, the prospective spouses know that such documents may not have
legal teeth but they feel that a prenuptial agreement imposes some moral
obligations.102
Under the present circumstances, it appears that the rising popularity of prenuptial
agreements is making the Indian government take cognizance of the role of such
agreements in regulating marital relations. This recognition by the State is reflected in
the periodic efforts being undertaken by the Ministry of Women and Child
Development to discuss the viability of giving legal effect to prenuptial agreements.103
Reports suggest however, that consultations have
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indicated that there is a perception within the relevant Central Government ministries
that it is too early to go forward with according a legal status to prenuptial agreements
and feasibility of such a move requires further consideration.104 Thus, at the moment,
the extent of the State's receptiveness towards prenuptial agreements is not entirely
apparent.
III. ADDRESSING RESISTANCE TO PRENUPTIAL AGREEMENTS

The response towards prenuptial agreements would invariably be shaped by the
nature of perceptions surrounding them. The experience of Indian couples and the
perspective presented by Indian courts demonstrates that the concept of prenuptial
agreements has been resisted consistently in India. In this Part, we seek to deliberate
on the tenets of possible opposition to the granting of legal value to prenuptial
agreements. Following an analysis of the basic arguments that may be raised against
prenuptial agreements, we seek to rebut the premises of such arguments which may
be advanced, with a view towards establishing an alternative narrative.
A. ON THE EFFECT ON THE SANCTITY OF MARRIAGE
The perception of marriage as a sacrosanct institution of Indian society poses the
primary hurdle in the path of legal acceptance of prenuptial agreements. Under
traditional Hindu law mentioned in the religious texts, marriage was considered to be a
sacred institution forming the basis of family in India and thereby deemed necessary
for the existence of a civilised society.105 This archaic perspective towards marriage
may provide support to ideas suggesting that introducing prenuptial agreements,
which are essentially in the nature of contracts, within the broader conception of
marriage will take away from its sacred character.106 The incorporation of prenuptial
agreements within the fabric of Indian marriages may further be challenged on the
basis that prenuptial agreements can potentially encourage couples to envision the
end of the marriage prior to being bound in the marital bond itself, which in turn, may
potentially result in termination of marriages being viewed as the norm rather than the
exception in India. 107
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One may further argue that legalising prenuptial agreements can give rise to a view
in the minds of married spouses that there is an easily accessible escape route in case
anything were to go wrong.108 It may also be stated that this may ultimately induce
them to choose separation or termination of marriage instead of attempting to work
together to reduce the differences between them, thereby shifting the resolution of
marital disputes out of the domestic sphere and into the public arena of courts.109 The
argument would thus, be that if a majority of couples begin taking the separation
route due to the presence of pre-negotiated terms of marriage and separation, the
institution of marriage itself may begin to lose its importance within society. In a
dystopian sense this could in turn be said to have the potential to give credence to the
viewing of marriage as being a purely legal dealing between two parties, with no
regard to non-legal elements like love, affection and family which currently play a
prominent role in marriages.
This fear of loss of sanctity of marriage can arguably be contested by an
understanding of the evolution that the nature of marriage in India has undergone. At
the onset, it is to be noted that the contractual nature of marriage has been part of
legal understandings of Islamic law from the beginning.110 Yet it must be kept in mind
that even under Islam, marriage is regarded as a sacrosanct contract.111 As a result,
the Islamic marital contract cannot be treated similar to ordinary transactional
contracts.112 Additionally, under Hindu law, marriage is also now recognised as a civil
contract in addition to being a sacrament.113 Moreover, under Christian canonical law,
although marriage is considered as a sacramental contract,114 prenuptial agreements
are recognised and courts may provide for their application in necessary cases.115 In
light of the fact that marriage is now recognised to have contractual elements under
several personal laws prevalent in India, without taking away from its sacramental
element as envisioned under religion, it is argued on a similar thread that introducing
prenuptial agreements as contracts within the marital relation is unlikely to adversely
impact its sanctity.
Further, in terms of the fear of prenuptial agreements affecting the marital relation,
in social terms, it is submitted that in light of the changing attitudes in Indian society,
prenuptial agreements should now be regarded as risk
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prevention tools instead of ‘marriage breaking instruments’. Indeed, prenuptial

agreements have not been demonstrated to be deterrents to entering into the marital
bond but instead have been proven across the world to serve as safeguards in the
unlikely event of the marital relation falling apart.116 In fact, prenuptial agreements
can arguably help improve the marital life of a couple by building a strong marital
foundation based on effective communication and concurrence on sensitive issues and
full disclosure about respective liabilities and responsibilities, at the eve of marital
life.117
B. ON THE POTENTIAL OF MISUSE OF EMOTIONAL AFFINITY

Prenuptial agreements may also face resistance in India due to their perceived
capacity of being used to the disadvantage of the male spouse.118 Those using this line
of reasoning to argue against according legal validity to prenuptial agreements may
stress that women or men who seek to use marriage as a means of acquiring wealth
may induce their fiancés to enter terms in the prenuptial agreements providing for
huge amounts of alimony and other financial benefits which would accrue to them
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upon divorce or separation on the belief that such separation would not take place at
all.119 Some may also argue that negotiations in such cases can put prospective
husbands in a vulnerable position, making it easy for brides to exploit the emotional
inclination of their prospective husbands towards them for their own benefit.120
In such cases, it may be stated that by the time the husband or wife discovers the
‘schemes’ of his or her spouse, it can become difficult for him or her to seek non-
enforcement of the contract, since he had consented to the terms at the time of
signing the contract.121 Further, although in such situations there is often an element
of deceit involved; it may become difficult to prove the same to an adequate extent
before the court so as to warrant voiding or annulment of the prenuptial agreement.
Moreover, one may argue that the restriction and elimination of options—which would
otherwise have been available in case of conventional
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divorce proceedings—that is agreed upon by spouses by means of prenuptial

agreements may further be detrimental to the spouse in case of circumstances
previously not envisioned by him or her.122 For instance, the wife who earned INR 10
lakh a year at the time of the marriage may lose her high paying job, reducing her
earnings to INR 2 lakh a year, and this may occur immediately prior to or at the time
of the divorce. In such a case, having agreed to claim no alimony in the event of
divorce can translate negatively for the wife, if the prenuptial agreement were to be
given effect.
There is a three-part rebuttal which can be presented against the argument of such
possible misuse of prenuptial agreements. First, just because something can be
potentially misused cannot be a reason for rejecting its introduction within the legal
framework.123 Further, there is no data to indicate that the misuse of prenuptial
agreements which can take place shall be greater than the misuse witnessed in
relation to other existing provisions of law or legal instruments. As shall be
demonstrated in Part V, prenuptial agreements if utilised appropriately can serve as
instruments beneficial to spouses. It is therefore, suggested that as attempted with
§498A of the Penal Code, 1860,124 procedural safeguards can be developed to curb the
possibility of misuse of prenuptial agreements instead of refusing to accord them with
legal validity altogether.
Second, if given legal recognition, prenuptial agreements are likely to operate based
on basic contractual principles and thereby safeguards allowing for voiding of contracts
based on extraneous considerations like undue influence and fraud, and permitting
non-performance on grounds of frustration will operate in order to safeguard the
interest of a spouse against possible misuse of terms of the prenuptial agreement.
Third, given the unique nature of marital contracts in the societal context, it is
submitted that courts would be likely to limit the application of the terms of the
prenuptial agreement if they would have an inherently detrimental effect on spouses.
For instance, if giving effect to a ‘no alimony’ clause will render the divorced wife
incapable of maintaining herself, the court may in
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its wisdom go beyond the terms of the prenuptial agreement and require financial
support to be extended by the divorced husband.125
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C. ON THE POSSIBILITY OF EXPLOITATION OF VULNERABLE WOMEN

Yet other critics of prenuptial agreements may possibly view prenuptial agreements
as tools available to husbands for exploitation of their wives. In this respect they may
point out that in Indian marriages, the wife is generally considered to have lesser
agency and power than her husband.126 The environment of many families in fact
reduces the autonomy of the females with reference to decision making regarding their
spouse.127 This, in addition to the perception of women as burdens on the family
within a patriarchal society, may increase the opportunity for husbands to compel their
wives to begin the marital relations by agreeing to agreements which are essentially
oppressive in nature.128
Those opposing legality of prenuptial agreements on this ground may also state
that even if provisions in prenuptial agreements seeking to defeat the provisions of
legislations meant for the benefit of women would be legally prohibited from being
given effect, there would be nothing to prevent a husband from abusing his wife and
silencing her voice by convincing her that she signed away her rights and protections
under these legislations when she signed the prenuptial agreement.129 Expecting
wives to be aware of legal technicalities in this respect in all instances could be viewed
as overly optimistic. This could be especially true for women from weaker economic
backgrounds or rural areas who have not received education to a level which would
enable them to discern the truthfulness of the claim made by the husband.130
Moreover, it may be argued that prenuptial agreements may be used to bypass the
provisions of beneficial legislations like the Dowry Prohibition
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Act, 1961. For instance, a man from a relatively wealthy background can marry a
woman from a relatively less wealthy background and his family may claim large sums
of money from her family as dowry. He may then make her sign a prenuptial
agreement stating that the amount of money which she receives from her family as
gift of marriage is being voluntarily transferred to him without any claim for the same
from his side. In such a case, it may be argued that the wife may later find it difficult
to seek remedy under the relevant provisions of the Dowry Prohibition Act in relation
to this claim for money made by her in-laws. Similarly, a groom may make his fiancé
sign a prenuptial agreement stating that he is permitted to hit her during coitus in
pursuance of physical pleasure. In such a case, it may become difficult for a wife to
differentiate from an evidentiary point of view between wounds consensually received
in pursuance of physical pleasure and wounds attributable to domestic violence.
With respect to the potential of using prenuptial agreements as an instrument for

exploiting women, we argue that the same can be dealt with by introducing a
presumption against the validity of prenuptial agreements which contain terms which
are prima facie detrimental to the interests of the wife, particularly if it is
demonstrated that the wife is at a weaker bargaining position due to financial
instability or other relevant reasons.131 Such a presumption can also be extended to
agreements with terms which appear to promote or allow for situations which are
otherwise statutorily prohibited. The presumption in this respect can be with regard to
the absence of legal intention by the wife and can be made rebuttable in nature much
like the rebuttable presumption which exists against the presence of legal intention in
domestic agreements.132 The operation of such a presumption in select circumstances
by shifting the burden on the husband to prove free consent and good faith could
arguably help in safeguarding vulnerable wives from being oppressed by prenuptial
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agreements, regardless of whether they were accepted voluntarily or under duress.

D. ON PUBLIC POLICY CONCERNS
Finally, public policy is a factor which may be used to argue against the legality of
prenuptial agreements, given the heavy reliance on the same by Indian courts for this
purpose. This argument is particularly important to note since even if legal validity
were to be accorded to prenuptial agreements, the same would be futile if the
agreements are found to be against public policy.133
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In view of the trends in cases discussed in Part II of this paper, the concern with
respect to public policy can arguably be addressed in a two-fold manner. First, it may
be considered that most of the cases holding prenuptial agreements to be against
public policy have been decided several decades prior. As public policy evolves with
the passage of time,134 we argue that the passage of several decades in between when
viewed alongside the changing social perceptions in India should bear testimony to
the evolution of public policy in India.135 At the least, considering the long duration of
time which has passed, there exists a need to reexamine the application of public
policy considerations through a modern lens, having regard to the societal changes
which have occurred in the interim.136
However, it is acknowledged that this argument is largely intuitive and resultantly
vulnerable to attacks on the grounds that simply because public policy may have
evolved does not mean that prenuptial agreements are not against the evolved public
policy. Further, in a legal sense even in the absence of recent judgments, the older
precedents still hold good in relation to similar factual circumstances, no matter how
outdated they may appear in light of societal developments. Therefore, this
necessitates a second argument, in that a review of the cases considered
demonstrates that with the exception of a few decisions, in the majority of cases,
prenuptial agreements as a whole are not regarded as opposed to public policy.
Instead, it appears that the holding of a prenuptial agreement as against public policy
has been specific to the facts in question, with courts generally having struck down
those agreements which contain oppressive terms or terms conflicting with rights
conferred by the respective religion. Thus, prenuptial agreements in general should
not be viewed as opposed to public policy; rather it is the possible inclusion of
oppressive terms in such agreements which should be resisted.
IV. THE STATUS OF PRENUPTIAL AGREEMENTS : A GLOBAL OVERVIEW
Prenuptial agreements can play beneficial roles by acting as future reference
frameworks for spouses to rely on in relation to the demarcation of their
responsibilities owed to each other.137 They can also serve as key evidence to help
bring in transparency in divorce suits.138 Despite these plausible benefits, the utility
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of such agreements cannot be said to be established uniformly on a global basis.

Different countries presently hold prenuptial agreements under different legal
standards. An analysis of the status of prenuptial agreements in five nations of study
reveals some key developments. The revelations in this Part are worth considering, as
they not only emphasise on the diverse approaches of various legal jurisdictions
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towards addressing the same basic family law problems but also affirm that no
prenuptial agreement is hermetic.
In this exercise, discussion is undertaken of the present status of prenuptial

agreements in five nations, namely United States of America (‘United States’),
Canada, China, and Turkey. These countries have been selected for this study in light
of the established use of prenuptial agreements in these jurisdictions for regulating
marital relations. In each of the states, some safeguards exist either to secure the
autonomy of the future spouses or to secure a prospective spouse against deprivation
of rights on account of the exercise of autonomy by the other spouse.
A. PRENUPTIAL AGREEMENTS IN ENGLAND
Under English law, prenuptial agreements were traditionally not viewed to be
binding legal contracts.139 As per law, the authority to decide ancillary relief linked
with spousal property ownership arrangements, maintenance payments, pass on
pensions and award of financial directives in the event of breakdown of marriage lies
on the courts140 as a result of delegation of powers under the Matrimonial Causes Act,
1973.141
In earlier English cases, it was held that any agreement providing financial
incentives to one spouse either for separation or for breaking away from the marriage
without pursuing restitution of conjugal rights was bad for the institution of
marriage.142 Such agreements were treated as void since they were seen as contrary to
public policy based on the idea that marriage is an agreement for staying together and
an agreement for separation clashes with the policy of marriage.143
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Eventually, in the late 1920s, more specifically, in the judgment in Hyman v.

Hyman,144 the validity of a separation agreement was accepted but any efforts through
such agreements which were meant to prevent the matrimonial courts from exercising
their power to award financial remedy were declared to be void.145 Subsequently, this
Hyman principle was recognised in the Matrimonial Causes Act, 1973.146 Interestingly,
the Indian position for long maintained consistency with the British position of the
time as is evident from several older Indian cases described earlier.147 Evidently, in a
range of lawsuits between Hindu spouses, reliance was placed on British precedent to
hold that any prenuptial agreement for future separation is contrary to the public
policy as it is against marital obligation under Hindu law.148
Jeremy D’Morley, an eminent international family lawyer, while commenting on the
trend of early English cases argued that “the failure of English courts to enforce
prenuptial agreements is an anachronistic peculiarity of English law that demonstrates
a stubborn refusal to adapt the law to new conditions”.149 Morley's research indicated
that English society had changed dramatically and the Hyman principle over time no
longer held good in the context of English society. He further contended that “The old
precedents that held that binding prenuptial agreements are contrary to public policy
have still not been buried. Now is the time to do so. Public policy demands it”.150 Thus,
in his assessment public policy in England had evolved to approve the idea of
prenuptial agreements.
The truth of Morley's proposition was demonstrated when the Law Society of
England, in 2006, observed that the courts in England were showing an increasing
willingness to respect agreements freely entered into between the parties, especially
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in relation to prenuptial agreements.151 Yet there appeared to be some regression in

the legal stance when, in 2008, when in the case of MacLeod v. MacLeod,152 the Privy
Council observed that public policy objections to post-nuptial agreements would not
apply and declared post-nuptial agreements to be valid but at the same time also held
that public policy objections to prenuptial agreements would remain intact.153
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It was only in 2010 with the passing landmark judgment by the Supreme Court of
the United Kingdom in Radmacher v. Granatino,154 that the status of prenuptial
agreements in England underwent a significant change. The court here outlined three
factors to make prenuptial (and postnuptial) agreements binding on the prospective
spouses. Firstly, the agreement should be freely entered into, that is the agreement
should not be agreed to under any influence or pressure. Secondly, significance of the
agreement should be clear and there should be total financial disclosure. Thirdly, there
should not be circumstances under which it would be unfair to give effect to the terms
of agreement under prevailing conditions, the determination of which has to be based
on need, compensation and sharing at the time of separation.
While the ruling in this case does not result in prenuptial agreements becoming
binding in every situation in England, it ensures that a logical agreement can have
decisive strength with courts being guided by the agreement clauses. The courts in
England, however, retain the autonomy to uphold the fairness of an agreement on a
case to case basis. Notably, in most cases, intentions of the parties during signing of
the agreement have been critically analysed to determine their validity, though sole
reliance has generally not been placed on them while passing orders.
In Z v. Z,155 Moor J. provided the wife with 40 percent of total assets on the basis of
the ‘needs’ principle and not purely on the terms of agreement. Judgments of Ormrod
LJ. are valuable resources to understand the broader view of the term ‘need’ in this
context. In the case of Page v. Page,156 it was held that “…‘needs’ can be regarded as
equivalent to ‘reasonable requirements, taking into account the other factors such as
age, health, length of marriage and standard of living’”. Further, in the Preston v.
Preston,157 his proposition was that “…the word ‘needs’ in §25(1)(b)(of the Matrimonial
Causes Act, 1973) in relation to the other provisions in the subsection is equivalent to
‘reasonable requirements’, having regard to the other factors and the objective set by
the concluding words of the subsection.”
In V v. V,158 Charles J. placed much weightage on individual autonomy where the
parties have freely and knowingly entered into an agreement. He departed from the
principle of equal division of assets and exercised his statutory discretion to give effect
to the terms of the prenuptial agreement. On the other hand, in Y v. Y,159 her Ladyship
Roberts J. concluded that non-matrimonial
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property should not be considered during sharing of assets.160 Here, she did not give
any weight to the premarital agreement and followed §25 of the Matrimonial Causes
Act, 1973 as it was found that the agreement could not fulfil the wife's needs. Further,
in Luckwell v. Limata,161 Holman J. stressed that the court would ultimately decide the
property division arrangements and not the parties to the agreement. He further held
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that gender based biasness should be avoided by the court as in a given situation the
wife might be dependent on the husband or vice versa.
Evidently, though there has been general recognition of prenuptial agreements by

the British judiciary, it is difficult to predict whether a particular agreement shall be
given effect by the court. The English Law Commission has sought to address this
uncertainty surrounding prenuptial and postnuptial agreements.162 The Commission
had commented that marital agreements cannot be considered to be contracts and as
such cannot be enforced so as to take away the right of the courts to pass necessary
orders.163
As per the Law Commission spouses could only ask the court to issue orders which
reflected the agreement terms and in fact, the English Supreme Court had expressed
its intention to comply with this view unless the agreement was found to be unfair.164
Thus, people were sought to be made aware that their prenuptial agreements “may
not be enforced” if their terms are found to be contrary to the “court's views about
fairness”.165 In turn, it is expected that prospective spouses will depend on legal
advice to prepare well drafted agreements which can withstand the scrutiny of English
courts. Legal advisors, however, in light of the current situation, cannot know with
certainty what would be the actual outcome in spite of their competency in drafting
prenuptial agreements.
The Law Commission of United Kingdom published its final report on this matter on
February 27, 2014.166 The Commission proposed that there should be no
differentiation between marital partnership and civil partnership.167 It was observed
that the courts had done sought to endorse “marital property agreements” within “the
statutory framework” but only imposition of new legislation would make it possible to
implement agreements without involvement of the courts.168 In
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order to overcome this barrier, the report contained a draft bill proposing that
prospective spouses be permitted to prepare a Qualifying Nuptial Agreement (‘QNA’)
to delineate asset distribution in case divorce.169
However, the QNA suggested would not restrict the court's power so far financial
needs of both parties and the children are concerned. The Law Commission reported
that “an agreement which leaves a spouse or former spouse without reasonable
provision for income, housing, and the other elements that family lawyers understand
as ‘needs’, (would) continue to be subject to the courts' control”.170 The term ‘financial
needs’ was not clarified by the Law Commission and the Commission requested Family
Justice Council171 to clarify the same. The Council published its report in this regard in
April 2016.172
Subsequently, on May 26, 2016, a Private Member's Bill was introduced by
Baroness Deech with an intention to provide for proper financial settlement provisions
under the law by amending the Matrimonial Causes Act, 1973.173 On January 27, 2017
Baroness Deech described how passing of the Bill would improve the situation in
England.174 Notably, Baroness Buscombe while replying for the government stated that
“we are currently considering proposals from the Law Commission on binding nuptial
agreements with safeguards not present in the Bill”175 and the government would
respond “in due course in the context of…wider plans for family law and system
reform”.176 This Private Member's Bill went forward with its Second Reading, was
examined by a Committee of the House of Commons,177 and had completed its third
reading in the House of Lords as of December 19, 2018.178 Whether the component
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concerning consideration of
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prenuptial agreements as binding subject to some conditions, which is contained in

the Bill will finally take effect and if so in what legislative form is to be seen.
Thus, we observe that English law has moved far away from its original conservative
position and is now apparently on the verge of giving binding status to prenuptial
agreements in matters of divorce. The Indian scenario is also changing, though at a
slower pace. Contrary to various earlier judgments,179 courts in cases like Sandhya
Chatterjee v. Salil Chatterjee180 , CIT v. Mansukhrai More181 and Sunita Devendra v.
Sitadevi Deshprabhu182 have found marital agreements to be valid. Moreover, the
relatively recent proposal of the Indian Ministry of Women and Child Development to
ensure legality of prenuptial agreements in order to recognise rights of a divorced
woman in property division, maintenance and child custody183 is definitely a positive
step towards securing women's rights in marital relationships.
B. PRENUPTIAL AGREEMENTS IN THE UNITED STATES OF AMERICA
While the position of prenuptial agreements is still taking shape in England, the
position in this respect in the United States of America can be said to be quite stable.
Prenuptial agreements are enforceable in all fifty states of the United States, although
the nature of such agreement and procedural requirements prescribed for them varies
from state to state.184
The National Conference of Commissioners on Uniform State Laws prepared the
Uniform Premarital Agreement Act (‘UPAA’) in 1983 which has been adopted by 26
states and the District of Columbia till now.185 The other states either have their own
statutes or impose general procedural requirements on prenuptial agreements.186 In
spite of varying provisions for such agreements between the states, some common
prerequisites exist across states which are to be fulfilled
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to make legally binding prenuptial agreements. These basic requirements are that
there should be full and fair disclosure of assets of both parties, and the agreement
must be accomplished voluntarily, must not be unconscionable, should be entered into
with access to independent legal consultation, should be executed well before the
wedding, and should not be against public policy.187
It is an accepted proposition that prenuptial agreements originating out of marital

relationships are distinct in substance from purely commercial agreements.188
Therefore, in determining the enforceability of prenuptial agreements, states normally
consider the basic requirements stipulated above. Though the primary goal of such
requirements is to safeguard the weaker spouse, this goal may fail substantially if the
unequal bargaining power of the weaker part is not taken into consideration.189
Scholars have warned that unequal bargaining levels prevalent among prospective
spouses can translate to incredibly high involuntariness levels in entering prenuptial
agreements.190 Substantially higher bargaining power of one party can in turn make
the prenuptial agreement unfair.191
Prenuptial agreements, in majority of the cases, protect the spouse whose assets
flourish during marriage or who has a considerably larger amount of assets in
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comparison to other partner at the time of marriage.192 These individuals usually have
more financial and legal maturity and more access to legal professionals which can
help them to carve out agreements which are disproportionately beneficial for them.193
Moreover, differences in education level, business intelligence, resettlement issues,
and pregnancy concerns may also tilt the power balance.194 The impact of this power
imbalance is reflect in the decision of the California Supreme Court in the In Re
Marriage of Bonds case,195 which upheld a premarital agreement although the wife did
not have any legal counsel at the time of entering into the agreement, English (the
language of the agreement) was not the wife's native language, and the husband had
extensively large amount of assets, on the ground that the couple had agreed to keep
their assets separate during marriage.196
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Such power imbalance has been recognised by the UPAA drafters197 who have
emphasised on the element of voluntariness in prenuptial agreements. Yet, the
question remains as to whether enough has been done given that unenforceability of
such agreements is considered only when there is deviation in terms of traditional
factors like fraud and duress.198 In fact, the legal position is worth further
problematising, given that there is no standard definition of voluntariness in the state
statutes or in the UPAA and assessment of voluntariness is only based on study of
circumambient circumstances which requires traditional evidences of fraud, duress or
unreasonable pressure.199 The potency of the issue in this regard can be discerned
from the verdict in Simeone v. Simeone,200 where the wife was unemployed with no
asset of her own whereas the husband was sixteen years older with substantial assets.
While it was contended that the husband's attorney had pressured the wife by
threatening to cancel the marriage and thereby induced her to sign the prenuptial
agreement, the Supreme Court of Pennsylvania held that she had signed voluntarily.
Furthermore, the developing jurisprudence in this regard indicates that unlike
business relationships where the responsibility of the proponent of the agreement is to
prove the enforceability of the agreement,201 in the United States, it is the
responsibility of the opponent to prove unenforceability of the prenuptial agreement.202
Thus, the present standard for voluntariness and unconscionability as it stands can
arguably be viewed as inadequate. The system has been framed in such a manner that
the stronger party does not have any responsibility to clarify the rights being waived
by the weaker party. Further, as the requirement of disclosure is improperly restricted
to information about financial status,203 the present standards for prenuptial
agreements can also be said to permit circumventing of the prerequisites of
knowledgeable waiver or waiver based on informed consent.
However, arguably this problem can be solved if the law were to mandate
engagement of independent counsel by both parties and written documentation of the
expected after effect of such agreements. It would then be easier for the courts to
assume that the waiver of a right is knowledgeable.204 In fact, in order to overcome
the legal situation which has developed, the state of California focuses on examination
of access to independent legal counsel, time between agreement and marriage,
explanation of the terms and basic effect of the agreement as
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well as the rights and obligations one was giving up by signing the agreement, and
traditional defences like duress, fraud, or undue influence while determining whether a
prenuptial agreement was entered into voluntarily.205
As in India, for a prenuptial agreement to be valid in the United States, it should

not be against public policy. This public policy requirement makes the agreement void
if for instance, it restricts necessities of children, as this would amount to disturbing
the right of a third party.206 It may also operate in another manner with it being
normal in most of the state jurisdictions, for a widow to be given a ‘forced share’207 of
the husband's estate under public policy concerns as a “token of the solemnity of the
matrimonial union”.208 In fact, in certain scenarios due to this orientation of the law, it
can become difficult to distinguish between death and divorce rights when prenuptial
agreements are enforced.209
Juxtaposing this against the India position, we find that in India unlike in the
United States, there is no legislation based administration of such agreements. As
stated earlier, in India, prenuptial agreements if viewed in terms of their contractual
character would ideally be regulated by §10 of the Indian Contract Act, 1872 and may
be void if they are against public policy as per §23 of the Contract Act.210 The
questions of what is good for public interest and what may be harmful for the broader
societal framework would definitely be concerns of public policy. Given that the public
policy concept in India is gradually changing, it is hoped that suitably drafted
prenuptial agreements would not be viewed as being violative of public policy under
the present day situation where large numbers of prospective spouses are
demonstrating an interest in opting for such agreements to safeguard their
interests.211 We submit that liberal understanding of public policy such as in the
United States will in fact aid in giving beneficial effect to prenuptial agreements, as
required.
C. PRENUPTIAL AGREEMENTS IN CANADA
In contrast to the American position, in Canada, the Divorce Act, 1985 does not
demand that premarital agreements be fulfilled but instead considers
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such agreements, as factors to be taken into account on divorce, such as while

determining quantum of child support or spousal support to be awarded.212 In matters
pertaining to child custody in the event of divorce, Canadian courts tend to approve
prenuptial conditions so long it is for the maximum benefit of the child.213 Moreover,
though as a general rule, community property law of equitable distribution of assets
prevails in all provinces of Canada,214 courts usually seek to honour the provisions
agreements relating to proprietary division between the prospective spouses. The
importance regarded to prenuptial agreements in the Canadian context is arguably
attributable to legal recognition of marriage contracts under the Family Law Act,
1990.215
It is worth noting that Canadian states have sought to achieve a balance in relation
to the legal effect given to prenuptial agreements. Notably, in British Columbia, even
in the presence of a valid marriage contract, courts have the power to divide assets
with due regard to principles of fairness.216 Similarly, redistribution of assets can be
undertaken by courts in Saskatchewan, if the marriage contract is found to be
unconscionable or unfair at the time that it was agreed upon.217 Fraud,
unconscionability and undue harshness of the prenuptial agreement on one party are
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also viewed as serious grounds allowing for setting aside of the agreement itself in
Nova Scotia.218 Other grounds for setting aside of such agreements include but are not
limited to the absence of independent legal advice as recognised in New Brunswick219
and non-disclosure of significant liabilities or assets by either party as taken into
account in Ontario.220
The operation of prenuptial agreements in the Canadian context can be best
understood through reference to some significant cases. In Hartshorne v.
Hartshorne221 (‘Hartshorne’) both the wife and husband were lawyers and the wife left
her legal practice to raise their children. In their prenuptial agreement both had
agreed to keep their assets separate. However, it was also provided that the wife
would get a three percent interest in the matrimonial home for each year, subject to
accrual of maximum of 49 percent. The agreement also provided for waiver of spousal
support. Both the parties had consulted lawyers independently in this instance and
were themselves trained lawyers. When the parties separated after nine years of
marriage, as per agreement, the wife was supposed to receive $2,80,000
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whereas the husband was supposedly entitled to $1.2 million. The husband contended
that the prenuptial agreement should prevail whereas the wife opined that the
agreement should not be enforced since it would cause unfairness in the division of
assets as per §65(1) of the British Columbia Family Relations Act, 1996 (presently §93
of the Family Law Act, 2011).
The Family Relations Act recognised division of assets at the time of dissolution of
marriage as per prenuptial agreements, provided that such agreements operated fairly
at the time of distribution.222 In case of lack of fairness, judicial apportionment of the
assets would be made under the Act.223 In the factual circumstances of this case, it
was found that the husband had several assets at the time of marriage, whereas the
wife was heavily in debt. Taking this into account, the Supreme Court of Canada held
that the unequal division sought as per the prenuptial agreement was not unfair as
each of the spouses had brought properties to the marriage differently and equal
division of the assets would be unfair. Accordingly, the court ordered apportioning of
the family assets in a ratio of 60 : 40, in favour of the husband.
Significantly, in Miglin v. Miglin224 (‘Miglin’), it was observed that the “court should
be loathe to interfere with a pre-existing agreement unless it is convinced that the
agreement does not comply substantially with the overall objectives of the Divorce
Act.”225 However, it was further observed that in order to provide reasonable spousal
support, the court should not simply consider only the pre-existing agreement but
should also ensure that the agreement did not fail “to be in substantial compliance
with the overall objectives of the (Divorce) Act”.226 The Supreme Court of Canada here
applied a two stage test to judge the validity of the separation agreement.227 The first
stage is to judge based on the circumstances at the time of formation of the
agreement whether there is any need to discount the application of the negotiated
agreement and the second stage is to judge the original intention of the parties at the
time of drafting of the agreement. After the two stage analysis, it was held in this case
that the husband's claim seeking enforcement of spousal support waiver would not be
granted as it could not meet the two stage criteria.
Further, the British Columbia Court of Appeal in the case of N. (D.K.) v. O. (MJ.),228
has held that “an agreement may be unfair as contemplated by §65(1) not only in its
formation, but in its operation”. Logically, a prenuptial agreement might be fair at the
time of its formation but its impact at the time of
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its operation, i.e. after separation might not be same as anticipated. It is thus, the
duty of the courts to ascertain the fairness of the premarital agreement at the time of
its application for division of assets. In keeping with this, Rooney v. Rooney229
addressed the issues associated with the waiver of spousal support as per prenuptial
agreement, with the Supreme Court of Newfoundland and Labrador rejecting the
waiver clause of the agreement in question on the basis that the wife was not aware of
the negative consequences she might have to face in the event of divorce while
signing.
In Loy v. Loy,230 the Ontario Superior Court of Justice further elucidated on issues
relating to waiver of property and spousal support in prenuptial agreements. In this
case, the wife was fifty-five years old and hailed from South Africa while the husband
was sixty-nine years. It was the second marriage for the couple. Neither of them
furnished financial information and though advised, the wife did not take independent
legal advice. Their marital agreement was subsequently revised and thereafter, the
wife expressed the desire to cancel the agreement on the basis of insufficient
disclosure. Referring to the cases of Miglin,231 Hartshorne,232 Rosen v. Rosen,233 and
LeVan v. LeVan,234 the court stated that the prenuptial agreement can be rejected only
when the present circumstance is significantly different from that anticipated during
signing of the agreement. On this basis, the court refused to set aside the marriage
contract and spousal waiver agreed upon in the agreement, as the claimant could not
bring her situation within the enumerated sub-clauses under §56(4) of the Family Law
Act. In a similar vein, in Mastalerz v. Mastalerz,235 also the Court of Queen's Bench of
Alberta upheld the validity of terms of a prenuptial agreement relating to distribution
of property and support waivers.
The character of the prenuptial agreement is anticipatory and may sometimes
appear to be unfair, particularly when considered in the context of a long marriage.
The above discussion indicates though that in Canada, when well informed prospective
spouses have signed such agreements voluntarily with access to independent legal
counsel, usually deference to the terms contained therein is shown by courts.
Comparing the Canadian position with India, Goa's Civil Code can be said to be
similar to the Family Law Act of Canada236 in terms distribution of property. Goa's
Portuguese Civil Code too focuses on ‘communion of assets’ i.e. equal division of
assets as the default rule and necessitates consent from both
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spouses for alienation of property consent but at the same time, also allows for
customised separation of assets based on prenuptial agreements.237 Similar to the
operation of Canadian law, prenuptial agreements are legally recognised under the
Civil Code in Goa for demarcating asset distribution on divorce and in the absence of
such an agreement, the law relating to community property law of equal sharing of
assets takes effect.
D. PRENUPTIAL AGREEMENTS IN CHINA

Prenuptial agreements are legally enforceable in China and required to be in
writing.238 Article 19 of the Marriage Law of the People's Republic of China, 2001
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specifies that
“The husband and the wife may conclude an agreement that the property
acquired by them during the period in which they are under contract of marriage
and the property acquired before marriage shall be in their respective possession
separately or jointly or part of the property shall be in their possession separately
and the other part jointly.”239
It is important to note that the rate of divorce in China is increasing.240 During the
first half of the year 2017 about 1.9 million couples got divorced, indicating more than
ten percent rise in comparison to divorce rate for the same period a year earlier.241 At
the same time, data has indicated that less than 5 percent couples in China were
annually opting for prenuptial agreements.242 China holds a community property
regime and in the absence of any prenuptial agreement, in most cases, the property is
divided equally.243 In spite of this, low rates of use of prenuptial agreements continue,
possibly due to perceptions of bad luck and fear or distrust of such agreements among
the lower middle income category.244
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Moreover, there is no explicit guidance on how Article 19 could be practically

applied, what should be the essential terms, and how specification of division of assets
should be made, possibly adding to the muted popularity of prenuptial agreements.
An interpretation of the marriage law by the Supreme People's Court of China can
however, be viewed as key guidance regarding division of assets, with the court
stating that the house purchased before marriage is a personal property and will be
retained after divorce but the mortgage amount paid by the non-mortgagee during
marriage would have to “be paid back by the real-estate owner”.245
Women in China give birth to children, educate them and devote substantial time
and effort on family chores.246 Lack of recognition of such invisible contribution of the
women of the family and their latent contribution towards the development of the
asset base of the family is definitely problematic. This is indeed exacerbated by the
existing judicial instruction of not splitting property on divorce and instead awarding
assets to the individual whose name is reflected on the deed,247 especially because
women in China have traditionally been prone to having lesser share of assets when
compared to their male counterparts.248 This disparate situation makes it particularly
relevant for Chinese women to insist on balanced prenuptial agreements.
When compared to mainland China, the status of prenuptial agreements in Hong
Kong is not well established and these agreements do not have strong statutory
footings. §7 and §14 of the Matrimonial Proceedings and Property Ordinance249 of Hong
Kong, which provides guidelines to judges for issuance of orders related to divorce
suits, remain silent about premarital agreements.
Hong Kong was a former British colony and was returned back to China in 1997 as
per the 1984 agreement between China and Britain.250 Resultantly, Hong Kong courts
have traditionally acted in accordance with the English law in
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family law issues. In the case of LKW v. DD,251 the Hong Kong Court of Final Appeal
referred to the English case of White v. White,252 and laid down the 50-50 rule of
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property division. Further, in SPH v. SA,253 , the Hong Kong Court of Final Appeal
opined that the Radmacher decision254 of the United Kingdom Supreme Court “should
also be regarded as the law in Hong Kong”, which may perhaps be considered to
indicate a tacit embracement of the validity of prenuptial agreement within the
jurisdiction.
The status of the prenuptial agreements in India is quite similar to that of Hong
Kong. In absence of any law on prenuptial agreements in India, it is also difficult for
couples who have entered into prenuptial agreements to anticipate the court's verdict
if a divorce case is initiated in an Indian court. It is noteworthy that while China has
legalised prenuptial agreements, it is only popular within the younger generation and
in big cities whereas older generation and countryside people usually rely on
traditional beliefs.255 Whether the same trend is replicated in the Indian context would
have to be determined on the basis of empirical evidence.
E. PRENUPTIAL AGREEMENTS IN TURKEY
Turkey is a secular country where about 99 percent population is formally Muslim.256
There is no State religion in Turkey,257 and the Turkish Constitution ensures religious
tolerance and freedom of religion.258 Turkish civil law permits prospective couples to
enter into premarital agreement related to marital property.259 Under Turkish law, the
distribution of assets in the event of separation or divorce is regulated by the marital
asset regime,260 which can take two forms, namely legal asset regime and contractual
asset regime.
Page: 257
The first category is the legal asset regime, which operates by default in the
absence of any agreement, where assets acquired during marriage are shared equally
irrespective of contribution from each spouse.261 This is also called “participation in
acquired property” regime.262 The acquired assets in this respect may be comprised of
salary or wages received, payments received from social security institutions, disability
compensations, personal assets gained after the marriage and other assets that
capable of substituting acquired assets.263
The second category of matrimonial asset regime as per the Turkish Civil Code
(‘TCC’) has three subtypes from which the parties have to make a selection in order to
make a valid prenuptial agreement. These subtypes pertain to the regime of
separation of property, the regime of shared separation of property and the regime of
community property. The prenuptial agreements under this regime have to be
executed either before the notary or be declared before the marriage officer specifying
the regime they are pursuing.264
Freedom of contract is one fundamental doctrines of Turkish law.265 Turkish family
law, however, restricts such freedom as the prospective spouses can only enter into an
agreement within the ambit of marital property regime.266 The couple can only select
from with the established statutory regimes namely the regime of separation of
property with distribution, the regime of community of property, regime of
participation in acquisitions and the regime of separation of property.267 Spouses are
only allowed to choose either from the legal asset regime or from any of the three
types of contractual asset regimes and they are not permitted to create their own
property regimes or opt for multiple property regimes.268
The regime of separation of property subtype may be imposed by the court under
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certain extraordinary circumstances as noted under Articles 206, 209 and 210 of TCC
or it may be accepted through an agreement between the spouses.269 There are two
types of assets under this regime, one is assets of the wife and the other is assets of
the husband. Articles 242 and 243 of TCC specify the legal parameters of this regime
whereas Articles 276 and 277 guide the spouses' proportionate distribution of assets
in the event of dissolution of marriage.270
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The subtype of regime of shared separation of property was the brainchild of the
Turkish lawyers and stemmed from the separation of property regime regulated by the
marital property regime of “participation in acquisitions”.271 It is a middle-path choice
stipulated by the Articles 244 to 255 of TCC where the assets attained or investments
made by one party for the future interest of the family will be shared equitably in case
of dissolution of marriage.272
In the community of property regime subtype, the properties are grouped under
three categories, namely the wife's assets, the husband's assets and joint assets.
Unlike under the legal regime, here spouses may have shared property rights.273 This
regime is laid down under Articles 256 to 281 of TCC and during dissolution of
property regime due to divorce or separation, the couple can determine the property
distribution on the basis of their personal property and common property.274
Unlike Turkey, prenuptial agreements in general are not legally binding in relation
to property matters at all instances under general Indian law. Nonetheless, like the
Turkish Civil Code, Goa's Civil Code only allows prenuptial agreements restricted to
property division, and other issues related to marital agreements which fall under their
purview are not considered. The legal asset regime under TCC is similar to the system
of the property distribution which is followed under Goa's Civil Code in the absence of
prenuptial agreements. However, an important distinction between the two is that the
prenuptial agreements under Goa's Civil Code cannot not be easily changed or revoked
but the matrimonial property regime under TCC can be modified at any moment
before or during the marriage through an agreement under the provisions of the
law.275
V. CONCEPTUALISING MODEL PRENUPTIAL AGREEMENTS FOR INDIA
It is apparent from the above discussions that in regimes where they are enforced,
prenuptial agreements by their very nature are meant to give autonomy to spouses, as
adult persons having requisite competence to manage their own affairs. Now, the
question arises as to whether this ‘autonomy’ of spouses should be fully respected or if
spouses should be ‘protected’ in case the terms of the agreement seek to go beyond
the established law. ‘Autonomy’ in this context should be understood to mean freedom
of the spouses to bypass default rules
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under law through execution of a prenuptial agreement whereas ‘protection’ refers to

presence of the checks and balances to ensure individual security.
Such questions, on the validity of agreements like these, have been raised
effectively by renowned family law scholar, Leong Wai Kum, stating,
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“Should the autonomy of spouses, who are undoubtedly adult persons with the
requisite capacity to regulate their own affairs, not be fully respected so that it is
purely a matter of how to hold them to their agreement? On the other hand, should
spouses be held to their agreement if its terms on division of matrimonial assets or
maintenance fall short of what developed law would have the court order?”276
In this regard, it is important to note that legal scholar and established
commentator on legal philosophy Prof. Brian Bix, while narrating the fundamental
concept behind private ordering has stated that “individuals know better than do other
people (including those in government) what is in their own best interests”.277 We
argue that it follows that since spouses are going to have to cohabit and coexist in the
course of their marriage, and suffer the consequences of lapses on each other's part, it
would be better to allow them to make choices of the terms governing their
relationship instead of allowing third parties including the State to impose default
rules on them. Nevertheless, we recognise that in certain special cases where there are
chances of either spouse being exploited due to their circumstances, it may be
beneficial to allow the government to mandate certain special clauses to ensure equal
bargaining capacity for both spouses.
It is an established fact that productivity of a family depends on the roles played by
each individual spouse.278 However, it is difficult to measure the inputs of each spouse
made to collectively produced marriage goods like children and household “because
tasks (are) generally unmonitored and output realised long after the inputs were
provided. Hence individuals have incentive to shirk in the production of these
goods.”279 Thus, it is relevant that in the present day, individuals are arguably more
aware than others, including judges, about the role they want for themselves and their
spouse within the marriage and are capable of framing their expectations from their
spouses in terms of what would be likely to deliver optimum results for them in
respect of their marital relation.280
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It is precisely this autonomy of individuals that is sought to be upheld by means of

prenuptial agreements and it may thus, indeed be justified to look for assurance that
premarital agreements are made legally enforceable in India. In fact, this position is
supported by the manner in which the key traditional objections towards
implementation of prenuptial agreements on the public policy ground have now come
under judicial scrutiny in nations such as the United Kingdom (from which India
derived much of its public policy narrative against prenuptial agreements) on account
of becoming “obsolete”.281 If viewed from a renewed perspective therefore, the
existence of a prenuptial agreement could surely be seen as being capable of
encouraging cohabitants in India to enjoy the benefits of a formalised marriage
relationship, given that it provides a safety net which can help ease their concerns
relating to the potential of future spousal claims.282
Looking at the treatment of prenuptial agreements abroad, we find that though
prenuptial agreements are considered to be lawful in various jurisdictions including
but not limited to United States of America, Canada, South Africa, Australia and New
Zealand,283 in each of these states, “the courts have retained full power to
scrutinise”284 agreement conditions.285 This judicial position is significant given that it
is undeniable that the exercise of autonomy of one individual can potentially curb the
autonomy of the other individual, with the danger of opportunism existing in any
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mode of contract including prenuptial agreements.

Prof. Robert Leckey, through his scholarship on family law, agrees that the relational
contract theory of marriage acknowledges “the potential for serious inequality in
intimate relations”.286 Scholars have also suggested that “prenuptial agreements
overwhelmingly hurt women by virtue of their inferior bargaining power”.287 The
adjudicating court, in exercise of its authority to evaluate the terms of a prenuptial
agreement, should thus, focus on the identification of such inequalities and aim to
extend adequate protection for the weak and vulnerable spouse.288
Evidently, prenuptial agreements should not be allowed to be managed by either
party in an absolutistic manner and at the same time inflexible rules
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under law governing such agreements cannot be a reasonable option. We argue that
there should be an attempt by the State to establish a hybrid legal standing, ensuring
balance between absolute autonomy and absolute protection, while dealing with
prenuptial agreements. Individuals must possess autonomous capacity to execute
prenuptial agreements but simultaneously the law must continue to administer ‘safety
nets’ in order to ensure provision of adequate protections to those in need.
While discussions regarding the legalisation of prenuptial agreements have taken

centre stage for long, the form and content of such prenuptial agreements arguably
require substantial consideration in the Indian context. In this Part therefore, we seek
to identify components of feasible prenuptial agreements, keeping in view the issues
specific to India. In this respect, we first analyse the possibility of modifying the
standard form of the Islamic prenuptial agreement, the nikahnama by negotiating the
incorporation of terms meant to benefit Muslim women. Thereafter, we discuss the
types of clauses that prospective spouses from other religious communities could
consider including in their prenuptial agreements to safeguard their interests.
Although it is true that Indian legislations do not make specific references to
marital contracts unlike several other jurisdictions discussed earlier, it is worth noting
that the Indian judiciary has time and again given credence to prenuptial agreements
and negotiated terms contained therein. Resultantly, we are optimistic that unless the
terms of a prenuptial agreement are framed in a manner which would directly be
viewed as opposed to public policy, it is likely that due regard will be given to
prenuptial agreements by courts when adjudicating relevant matrimonial matters, with
there being potential for lower courts to take such agreements into account at least in
the form of persuasive evidence indicating the intentions of spouses relating to their
marital life.
A. VIEWING THE NIKAHNAMA AS AN INSTRUMENT FOR THE BENEFIT OF MUSLIM
WOMEN
For long, the nikahnama has been considered to be a traditionally and legally
legitimate agreement entered into prior to a Muslim marriage,289 thereby making it an
accepted form of prenuptial agreement in India. As mentioned earlier, the utility of
prenuptial agreements can fall prey to unequal bargaining levels existing between
prospective spouses. The nikahnama too is arguably exposed to this pitfall, particularly
in case of marriages where the wife is likely to occupy a disadvantaged position within
the context of the family.290 Yet, we argue that by
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utilising the contractual nature of the nikahnama,291 the situation can be modified
tactfully so as to provide the wife with equal rights within the marriage alongside
necessary safeguards. If drafted adequately so to support equality and other virtuous
ideals within a Muslim marriage, such a nikahnama can potentially even serve as a
model for prenuptial agreements to be emulated by members of other religious
communities, once they are able to navigate their personal laws to find space for
prenuptial agreements within their marital spheres.
It is important in this context to begin by considering how Muslim traditions

envision equality for the wife within the marital relation. Notably, the doctrine of
kafa'ah in marriage under Islamic law envisions equality between a husband and wife,
and in fact requires a husband to “measure up” to his wife.292 The doctrine further
specifies that as a union between two families, marriage requires the wife's family to
set the ‘standard for equality’.293 In pursuance of this abstract objective of providing
Muslim women with equal rights as their husband in marriage, some scholars have
advocated fine tuning the terms within a nikahnama so as to make them gender
just.294
They argue that as a contract demarcating the rights of both spouses within a
Muslim marriage, the composition of a nikahnama can not only encourage the
prospective couple to discuss and determine the nuanced features of their prospective
marital life but also provide an avenue for wives to tackle issues of oppression within
the marriage which are in certain ways condoned by the practices within the
religion.295 Additionally, it is to be noted that certain Islamic scholars view the
nikahnama as an instrument symbolising the autonomy and rights and Islamic
women, and consider it as being capable of being empowering for Muslim brides,
based on the nature of the terms stipulated in it.296
Among the stipulations that can be included in a Muslim marriage contract, the
responsibility of the husband to maintain his wife, being recognised as an objective of
marriage,297 is generally expressly mentioned within a
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nikahnama.298 However, it is those stipulations which though beneficial for Muslim

brides remain conventionally unmentioned in texts of modern Islamic law which raise
debates among scholars. While on one hand, conservative scholars seek to resist the
incorporation of novel and liberal terms within Muslim marital contracts citing strict
adherence to Islamic traditions, on the other hand, progressive scholars seek to
support the inclusion of such terms based on the doctrine of individual autonomy and
free consent in determination and enforcement of rights and liabilities arising out of a
contract.299
We support the thinking of the latter group of scholars and thereby seek to present
possible clauses that a Muslim bride may choose to stipulate in her prenuptial
nikahnama so as to safeguard her interest, both during the continuance of and after
the termination of her marriage. Owing to the fact that nikahnamas are civil contracts,
our propositions rely on the underlying understanding that any such conditions will be
enforceable only if the husband agrees to them with free consent and all other
essentials of a valid contract are adhered to.300 We propose that it is this contractual
nature of the nikahnama which can, subject to necessary changes within its form and
content, facilitate the process of ensuring that Muslim brides are given their due
entitlements without hassle and their husbands are held to their word.301
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1. Suggested clauses for a model nikahnama

The issue of a model nikahnama has been discussed for long in India with the All
India Muslim Personal Law Board, All India Shia Personal Law Board and All India
Muslim Women Personal Law Board having presented their initial versions of model
nikahnama more than a decade back in 2005,302 2006303 and 2008304 respectively.305
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Each of these versions has sought to incorporate newer clauses within the
traditional document so as to enhance the protection of the rights of both spouses,
with specific emphasis on safeguarding the interests of Muslim wives. In the Shariat
nikahnama devised by the All India Muslim Women Personal Law Board as part of a
draft Muslim Marriage Act, provisions for compulsory registration of marriage were
provided with model forms meant for facilitating the process.306 As per this version,
stipulations contained in the nikahnama were also required to be stated in both Hindi
and Urdu to allow non-Urdu speaking parties to fully comprehend the effect of the
document.307 On the other hand, the model nikahnama prepared by the All India
Muslim Personal Law Board, in a bid to bring uniformity between marriage contracts
across different sections of Islamic community, prescribed that both spouses should
be provided with a copy of the agreement, whose terms could potentially provide for
gold, silver or immovable property as dower and demarcate the respective roles of the
spouses within the relationship.308
Additionally, jurist Ameer Ali had enumerated numerous terms309 which would be
enforceable under law in the context of a marital contract between a Muslim husband
and wife, regulating the terms of their marital relation.310 Certain other terms which if
stipulated within a nikahnama may benefit a Muslim bride are discussed hereafter.
a. A ‘no polygamy’ clause
Polygamy or the practice of having multiple wives is permissible under Islamic
law.311 As a result of this provision for polygamy in the personal law, Muslim men in
India have for long been permitted to have four wives.312 Despite claims for banning
polygamy among Muslims in India,313 due to the lack of unanimity in this respect
amongst members of the community, the situation continues to subsist either openly
or in a clandestine manner with Muslim men relying on
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Islamic tenets to justify their multiple marriages.314 It is important to note however,

though permitted by religion, the Supreme Court of India has clarified that the right to
enter into polygamous marriages is not an integral part of the fundamental right of a
Muslim individual to profess or practice his religion.315
In the case of Begum Subanu v. A.M. Abdul Gafoor,316 the Supreme Court also
stated that when a Muslim man takes another wife, he breaks the vows of fidelity
made to his first wife and causes her marital injury. The court further stated that
although a Muslim man is permitted under personal law to marry more than one wife,
the provision of §125(3) of the Code of Criminal Procedure equates the second or
subsequent wives as mistresses nonetheless.317 Furthermore, the General
Recommendations made by the Committee on the Elimination of Discrimination
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against Women constituted by the United Nations have highlighted the negative
impact that polygamy by a husband can have on his wives.318 In particular, General
Recommendation No. 21 emphasises that polygamy violates the constitutional rights
of women in nations where equality is a constitutional right, in addition to being in
violation of Article 5(a) of the Convention on the Elimination of All Forms of
Discrimination against Women.
Despite the observations of the Supreme Court with respect to polygamy, there is
no law in India or precedent thereof which wholly bans or renders the practice of
polygamy among Muslim persons illegal. As a result, merely trusting that her husband
will not marry another woman when the law does not prohibit the same may turn out
to be a bad gamble for a Muslim woman in certain cases. Consequently, in order to
prevent her husband from entering into a second marriage during the subsistence of
their marriage, a Muslim bride should include a ‘no polygamy’ clause within her
prenuptial agreement.319 Academician Faizan Mustafa320 and women's rights lawyer
Flavia Agnes have pointed out how a Muslim woman historically had and presently has
the right to make relevant stipulations in her nikahnama for the purpose of restricting
polygamy.321
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Additionally, according to her financial and social considerations, a prospective wife

may also stipulate that contracting a second marriage by the husband during
subsistence of their marriage will allow her to reside separately from her husband and
make him liable to maintain her during the period she chooses to reside separately. It
may also be stipulated that commission of polygamy by the husband will allow for
initiation of divorce, at the option of the wife, in the form of khula322 or talaq-al-tafwid,
if the right thereof has been delegated.323
b. Expressly negating the need of nikah halala
Nikah halala refers to a practice in Islamic law which requires a woman to marry
another man, consummate the marriage and get divorced by him before she can
remarry her former husband in case she was divorced by three pronouncements.324
Although triple talaq (talaq-ul-biddat) has been held to be unconstitutional,325 the
need for nikah halala has not been eliminated due to the existence of talaq hasan
which is another form of Islamic divorce involving the husband pronouncing talaq
thrice, each at a gap of one month and abstaining from physical intercourse with his
wife for the period of the three months.326 Nikah halala marital arrangements come
with their own risks. Since conditional marriages (mut'ah marriages) are not permitted
under Sharia law as per Sunni community,327 it is possible when parties involved are
Sunni Muslims, for the temporary husband to refuse to divorce the wife in consonance
with the nature of nikah halala. Further, an investigation has revealed the blatant
misuse of this provision in India, with nikah halala being offered as a ‘professional’
service for which women wanting to remedy their broken marriages are being required
to pay top dollar.328
Although the legality of nikah halala within the sphere of Sharia law has been
challenged,329 it is undeniably an ongoing practice within the Muslim sects in India.
Therefore, in order for women to prevent themselves from being
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exploited as a result of this abhorrent practice, it is suggested that Muslim women

insist on the incorporation of a clause in the nikahnama specifying that remarriage
with her husband post-divorce will not require the performance of nikah halala. The
stipulation may further provide that after termination of marriage and completion of
iddat period, the former husband and wife would be free to get married again to any
competent individual including each other.
c. Clause determining and guaranteeing mehr in addition to maintenance

Dower or mehr refers to a stipulated amount that the husband is obligated to
provide to his wife as a mark of respect for their marriage.330 Among the two forms of
dower, prompt dower is payable upon demand by the wife while deferred dower is
payable at a later date on the happening of a specific event.331 The mehr is the sole
property of the wife and is a debt on the husband throughout his life and on his heirs
after his death.332 The objective of the dower is to provide the wife with a means of
subsistence in case of death of her husband or the dissolution of marriage.333
It is to be noted that although the mehr is meant to provide maintenance to the
wife either during the continuance or after the termination of marriage, mehr is not
the same as maintenance. This means that a Muslim husband is required to maintain
his wife both during334 and after termination of marriage,335 regardless of the previous
payment or obligation to pay the mehr. The obligation to pay dower being of the
nature of a debt is substantially different from the obligation of maintenance of the
wife, which is an ongoing marital duty of the husband.
In this respect, it is suggested that a Muslim bride should explicitly mention in her
nikahnama that the obligation of the husband to maintain her is exclusive of and in
addition to his duty to pay her dower so as to avoid being shortchanged later. Such a
clause should specifically mention that the payment of dower, however big the lump-
sum amount is, would not abrogate the right of the wife to seek maintenance from her
husband during the marriage or after its dissolution.336
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Further, while stipulating the amount of dower in the nikahnama, the bride should
ensure that the amount is not nominal or merely in the nature of a formality and is in
fact provided in a manner which is capable of acting as a safety net, during the course
of her marriage or after the end of it, as the case may be.337
d. Determination of maintenance payable after iddat period

Under traditional Islamic law, a divorced wife was entitled to receive maintenance
only till the iddat period or the end of pregnancy, if she was found to be pregnant from
her marriage.338 This legal position was highly disadvantageous for divorced Muslim
women who would often find themselves destitute and homeless after the end of the
iddat period.339 The Supreme Court attempted to remedy the situation in the Shah
Bano case340 by providing Muslim women with a right to maintenance under §125 of
the Code of Criminal Procedure. However, this progressive legal development was
restricted by the introduction of the Muslim Women (Protection of Rights on Divorce)
Act, 1986, which reinstated the traditional legal position.341 Fortunately, the right of a
divorced Muslim woman even after the completion of the iddat period or her pregnancy
as the case may be, has once again been reinforced by the Supreme Court of India
through its verdict in Danial Latifi v. Union of India.342
As per the law laid down by the Supreme Court, ex husbands are required to ensure
a reasonable and fair provision for their former wives for the period extending beyond
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iddat period.343 This reasonable and fair provision is not defined by the court and is
therefore, open to judicial interpretation, meaning that the provisions made in one
case may differ from that of another. In order to reduce the uncertainty which such a
judicial exercise necessarily entails, it is recommended that Muslim brides should
specify within the prenuptial agreement, the nature of maintenance that they expect
from their husbands in the period after iddat in case of divorce. Such stipulation can at
least provide the courts with some guiding factors in making their determination.
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It is suggested that the wife should stipulate specific amounts or percentages of the
husband's income based on a gradation for computation of the quantum of her
maintenance. For instance, the stipulation can provide that she shall be entitled to INR
Y, in case her husband's income is INR Z and INR Y×2, in case her husband has an
income increment equivalent to or greater than a set amount.2 Such a stipulation
could also provide for an annual increment of the maintenance amount which may be
payable after divorce, so as to safeguard the financial interests of the divorcee woman
in the wake of inflation.
e. Clause prohibiting nikah mut'ah
Nikah mut’ah is essentially a temporary fixed term marriage for pleasure recognised
within the Shia community.344 Initially formulated as a form of marriage for travelers,
the practice continues even today, enabling Muslim men to contract a marriage for a
few hours or days in order to have sexual intercourse, often for a price, without forging
a long term marital bond.345 While some scholars have stated that nikah mut'ah is
essentially tantamount to prostitution,346 others have vouched for its progressive role
in Islam347 and sought to justify its permissibility within Islamic traditions.348 Owing to
the fact that a nikah mut'ah has no minimum duration, it can range from a few
minutes to a few months.349 Due to the temporary nature of such marriages, these
allow Muslim men to have intercourse with multiple women, who are their ‘wives’ at
the given point of time, without being tagged as sinners.350
Evidently, the possibility of a Muslim husband contracting temporary marriages for
the sake of sexual relations is not only demeaning for his wife
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but it can also be the cause of substantial tension within marriage, since the mut'ah
type of ‘marriage’ provides the husband with the leeway to be adulterous by being
sexually involved with women whom he ‘marries’ temporarily for that purpose. A
prudent step for reducing the chances of such conflicts would be for the Muslim bride
to specify within the nikahnama that the husband is prohibited from contracting
marriages of such nature. Once the husband accepts the provision provided in the
nikahnama, he will become contractually restricted from entering into a mut'ah
marriage. In order for such a restriction to be emphatically operative though, the
clause should also necessarily mention the consequences which would follow in case of
violation of the restriction and the bride should choose sufficiently strict consequences
to ensure there is a strong deterrent for her husband.
f. Delineating irretrievable breakdown of marriage as a ground for divorce

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Irretrievable breakdown of marriage refers to a situation where the marriage in

question has broken down to such an extent that it cannot be remedied by any
possible means.351 It is a no fault ground of divorce recognised in many nations
around the world allowing for termination of marriages which have failed to an extent
where they cannot be saved, without any fault of the spouses.352 The Law Commission
of India has advocated the amendment of the provisions of personal laws relating to
divorce in its 71st and 217th Reports so as to incorporate a provision providing for
irretrievable breakdown of marriage.353 So also, the Supreme Court of India has
expressed the need for irretrievable breakdown of marriage to be introduced as a
ground for divorce in several decisions.354
Although Islamic law is silent regarding the legality of irretrievable breakdown of
marriage as a ground for divorce, owing to the contractual nature of Muslim marriages
and in the absence of any indication that such a ground would be contrary to Islamic
tenets, it is suggested that Muslim women may contractually stipulate for irretrievable
breakdown of marriage as a ground of divorce,355 which would operate in the form of
khula or talaq-al-tafwid. There are indeed possibilities of using the ground of
irretrievable breakdown of marriage against the interests of Muslim wives as pointed
out by a research report published by
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Majlis in response to a proposal to introduce irretrievable breakdown of marriage as a

ground for divorce.356 Such possibilities though can arguably be reduced substantially
by stating within the nikahnama that in case of either spouse seeking divorce on this
ground, they will be required to sufficiently convince the court or designated authority
as to why the marriage is to be considered as broken beyond repairs. Although
beneficial for both spouses, in light of lack of specific legal guidance about the same,
the enforcement of such a clause may admittedly be dicey.
g. Allowing for resisting restitution of conjugal rights under specific circumstances

Vaidya J. of the Bombay High Court had once famously stated that the provision for
restitution of conjugal rights which allows the court to order an unwilling wife to go to
her husband “is a relic of ancient times when slavery or quasi-slavery was regarded as
natural”.357 The concept was imported in the context of Muslim couples, in a case
wherein the Judicial Committee of the Privy Council opined that in case a Muslim
spouse withdraws himself or herself from the society of the other spouse without
lawful cause, the spouse may seek restitution of conjugal rights.358
Owing to the fact that Muslim marriages are civil contracts, scholars posit that
restitution of conjugal rights should be viewed as specific performance of contract.359
Further, this legal position is sought to be shielded from attack on equitable grounds
on the basis of the fact that restitution of conjugal rights in the context of Muslim
marriages is to be determined according to principles of Muslim law and not equitable
principles.360 In order to sustain a claim for restitution of conjugal rights, a Muslim
husband must prove that there was marital relation between the parties, the wife had
left his company or the matrimonial home without any reasonable cause and have
refused to return without just cause though the husband was willing to cohabit with
her and discharge his spousal duties.361
It is noteworthy that the right of a husband to seek restitution of conjugal rights is
not absolute and may be made conditional on the payment of unpaid dower or other
necessary remedies that the court deems to be just and fair in the facts of a particular
case.362 The legality of restitution of conjugal rights has also been recently
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reconsidered in academic discussions based on the dimensions of
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privacy involved.363 In pursuance of this positive judicial holding and the emerging
academic position, it is suggested that Muslim brides should consider providing for a
substantial quantum of their dower to be designated as deferred dower so as to allow
them at least preliminary grounds for resisting restitution of conjugal rights sought by
their husbands and secure maintenance at a future date in case the same has been
withheld by their husbands.
They should preferably further delineate specific grounds in the nikahnama itself,
apart from the ones provided for under the Dissolution of Muslim Marriage Act, 1939 to
resist restitution on conjugal rights. These specific grounds should not be based on a
basic template and brides should attempt to customise them as per their own needs.
For instance, consider a Muslim bride, who is a germaphobe and detests unclean
surroundings. If her husband refuses to take regular baths after their marriage or does
not otherwise maintain the standard of cleanliness that she requires, she may want to
‘withdraw from his society’ and resist returning till circumstances change for the
better. Since such a situation is unlikely to be covered under any of the grounds of the
Dissolution of Muslim Marriage Act, 1939 including cruelty, the bride would benefit
from including a condition in her nikahnama stipulating that the husband will not be
able to seek restitution of conjugal rights unless he remedies the situation if she
‘withdraws from his society’ on grounds of lack of cleanliness or absence of daily
hygiene.
h. Delegation of right to divorce to the wife
Talaq-e-tafwid refers to the delegation of the right to divorce by a Muslim husband
to his wife.364 Talaq-e-tafwid operates as a contractual term between the husband and
the wife which may be provided for within the nikahnama365 and enables the wife to
divorce herself from her husband without seeking intervention from a court of law.366
Some scholars suggest that this delegation of right to divorce does not need to be
affected only by virtue of the nikahnama and may be included in a later document by
the husband who consents to such delegation.367
Once a complete delegation takes place, the husband is not permitted to revoke
such delegation, since the right essentially vests in his wife.368 The wife is capable of
exercising this right at any time after the arising of specified contingencies and the
mere non-exercise of this right immediately after the occurrence
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of the contingent event does not reduce the effect of this right vested in her.369 The
husband while delegating the right to divorce is required to stipulate the nature of
circumstances in which the right will be exercisable, and if the right to divorce is
rightly exercised by the wife on account of one of the stipulated circumstances, talaq-e
-tafwid is valid.370 In specific cases, depending on the nature of the stipulations,
divorce may automatically take effect based on the husband's conduct, if they conform
to any of the contractually prohibited acts.371
In view of the fact that talaq-e-tafwid provides a Muslim woman with the freedom
of divorcing herself from her husband in a system which has traditionally favoured the
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ability of husband to determine when he shall ‘free’ his wife from the shackles of their
marital bond, we advocate that Muslim brides should consider insisting on the
incorporation of a provision for talaq-e-tafwid in the nikahnama itself, so as to begin
the marriage with equal bargaining power, at least in respect of divorce. The
stipulations for operation of talaq-e-tafwid should be seriously considered by the bride
and she should negotiate the incorporation of necessary preconditions on the
satisfaction of which her right will crystallise. Further, brides should insist on the
inclusion of such a condition in the nikahnama, i.e. prior to their marriage, so as to
safeguard their own interests within the marital relation and reduce the chances of
being exploited. Matters pertaining to the nature and quantum of maintenance, in
addition to the rights and obligations of the spouses in case the wife divorces herself,
should be clearly stipulated in the nikahnama to reduce the scope for ambiguities in
case of exercise of talaq-e-tafwid at a later stage.
While acknowledging the benefit that may accrue in this regard, at the same time,
we express our reservations regarding the concept of divorce without intervention of
courts. It is evident that automatic divorce on the happening of certain contingencies
or the complete discretion of the wife in the matter of divorce which is enabled by
talaq-e-tafwid can be quite problematic in various instances. For instance, a husband
D may be extremely emotionally attached to his prospective wife E and therefore,
stipulate in specific terms in the nikahnama that his wife can exercise talaq-e-tafwid in
case he is unable to fulfill her material wishes after marriage. In such a case, if after
marriage E demands a designer handbag from D, who is unable to provide her with
the same due to it being priced beyond his financial means, E may potentially threaten
to divorce D.
In order to ensure balance in such cases, it is suggested that the terms allowing for
exercise of talaq-e-tafwid should be as specific as possible. Moreover, the nikahnama
should provide the husband with the opportunity to challenge the divorce before a
court of law on the demonstration of adequate reason to resist the effecting of such
divorce. In such cases, in order to safeguard the interests of the
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wife, at least in the initial stage, the divorce may be deemed to be valid, with the
burden of proving otherwise being on the husband.
B. POTENTIAL CLAUSES FOR A PAN-INDIA MODEL OF PRENUPTIAL AGREEMENT

As evident from the previous section, a number of clauses can potentially be made
a part of prenuptial agreements so as to benefit a married Muslim woman in the long
term. It is accepted that on account of their nature, the accrual of such benefits will be
subject to the male fiancé, as a contractual party, accepting these terms as part of the
nikahnama. Nevertheless, it remains important to recognise the right of Muslim
women, as contractual equals to their husbands, to stipulate necessary conditions and
freely negotiate their nikahnama.372
Unfortunately, due to the non-accordance of a uniformly legal status to prenuptial
agreements amongst other communities in India, the accrual of benefits on the
inclusion of such provisions in marital contracts by members of other communities,
particularly among Hindus,373 is dependent on judicial benevolence. Nevertheless,
even at this stage, though asserting that prenuptial agreements are legal and
enforceable contracts for couples from all non-Islamic communities may be difficult,374
prenuptial agreements can indeed be viewed as Memorandums of Understanding
where the spouses mutually determine the rights and obligations that they would like
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to respect through the course of their marital life.

It is acknowledged that the enforcement of such clauses may substantially be
based on trust between the spouses and their respect for promises made to each
other, given that there is no certain guideline regarding how prenuptial agreements
will be treated by Indian courts. Nevertheless, given that these two elements are
deemed to be crucial to the success of any marriage,375 it is hoped that they shall help
to give effect to the essence contained within the prenuptial agreements which are
entered into by Indian couples.
It is in light of this, that we propose that having a signed document of the nature of
a prenuptial agreement, regardless of enforceability, can allow couples to be
transparent about their expectations from each other and thereby strengthen the
marital bond. From a purely policy perspective, we argue that documents similar to
prenuptial agreements may potentially benefit married couples
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in the long term in understanding the scope of their relationship during marriage and
facilitate the demarcation of assets and privileges in case of termination of marriage.
From a legal perspective, it is possible to consider a situation where conditions for
validity of a contract are fulfilled with respect to a prenuptial agreement, except for
certain terms which seek to impinge on legal protections or create oppressive
circumstances within a marriage. In such a situation, if such conflicting terms are
severable from the rest of the agreement, the agreement can arguably be held to be
legally enforceable.
In this Part, we enlist some types of terms that couples may consider incorporating
within their prenuptial agreements, so as to enable customisation of the document to
suit their needs. As reference to previous Parts of this paper will demonstrate, the
determination of legality of terms of a prenuptial agreement in India is dependent on
the facts of each case and the subjective interpretation of the adjudicator, meaning
that there is no straightforward formula which can be used to determine whether a
specific term in a prenuptial agreement will be held to be a contractually valid term by
a court of law.
Nonetheless, in this paper, we do not aim to reiterate the oft cited arguments
supporting the legal recognition of prenuptial agreements,376 although we
acknowledge legal acceptance as an underlying premise for the fulfillment of the
objectives of prenuptial agreements. Instead we seek to provide a perspective as to
the manner in which prenuptial agreements can help spouses, if they are given legal
effect in India. Therefore, the types of terms enumerated hereafter are meant to be an
illustrative guide for the types of terms which a prospective couple may consider
including within documents, which they view as prenuptial agreements with the
intention of being bound by them.
1. Clauses related to assets
Assets, both movable and immovable, form an important part of the corpus of any
household.377 At the time of marriage, couples often pool together their separate
properties to form a consolidated holding for common use during
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the course of their marriage.378 Joint assets may also be created, such as joint bank
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accounts,379 or acquired, such as a family house or car, during the subsistence of

marriage.380 While the joint enjoyment of such property by the spouses is considered
to be natural during happier times in a marriage, contentions may arise at a later point
of time in case of marital conflict between the couple, death of either spouse or
divorce.381 This can be particularly true in cases where one spouse contributes wholly
or substantially more to the commonly used property vis-à-vis the other spouse.
In order to avoid future issues pertaining to distribution, possession or title as to

property either brought into marriage by a spouse or acquired in the course of
marriage, both individually or jointly, it is suggested that the couple should enter a
prenuptial agreement clearly delineating the dynamics of property relations that shall
exist between them with regard to joint marital property and separate personal
property.382 Particular emphasis may be provided to provisions involving the nature of
division of property in the case of divorce.383 In case a spouse wishes to keep any
personal property separate from the pool of marital assets, it would be wise to
specifically mention such intention in the prenuptial agreement. A prudent practice in
this regard would also be to provide details of all properties owned prior to marriage
which are sought to be maintained as separate property, in the form of a schedule to
the prenuptial agreement.
Additionally a spouse should ensure that there is no comingling of this separated
property with marital assets, in order to avoid claims from the other spouse regarding
the asset at a later point of time.384 For instance, if Mr. X (to be married to Ms. Y) has
an apartment in Gurugram which he wishes to keep separate from his marital assets,
he should not only mention such intention in his prenuptial agreement with Ms. Y, but
he should also ensure that he does not use
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marital assets to upgrade, expand, repair and/or pay off loans taken on the apartment.
It is to be kept in mind that in case of utilisation of marital assets in relation to
separate property, a spouse may risk comingling of separate property with marital
property, which may eventually make the separate property open to a claim by the
other spouse due to the difficulty in determination as to the precise contours of the
separate property and the property on which marital assets have been used.
Further specifications in the prenuptial agreement must necessarily deal with the
manner in which property acquired during marriage by means of gift or inheritance or
damages from legal suits or settlements shall be considered.385 Since it is possible for
non-marital property to later be converted into marital property either consensually or
by effect of law, clauses should also be incorporated regarding the manner in which
the value of property will be distributed in case of appreciation in value at the time of
division of assets.
For instance, consider a case where the husband and wife contribute towards the
purchase of a famous painting worth INR 50 lakh, with the husband paying INR 10
lakh and the wife footing the rest of the bill. Further suppose in this case that the
husband is an art aficionado and undertakes maintenance of the painting. After 10
years, the couple decides to divorce and at that time the value of the painting has
appreciated to INR 90 lakhs. In such a case, in the absence of a prenuptial clause
governing distribution of jointly purchased marital assets, ambiguity may arise as to
who is entitled to the painting. In case the couple decides to sell the painting and
distribute the proceeds amongst themselves, questions would necessarily arise as to
whether the proceeds should be distributed based on their respective contributions to
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the price at the time of purchase, equally or in some other proportion. The husband
may in fact, rightly bring a claim as to equal or additional percentage of the sale
proceeds based on the argument that the appreciation in value is a result of his care
and maintenance of the painting. The questions in this case could easily be answered
if a prenuptial agreement, providing the manner of distribution of assets, had been
entered into by the couple.
Couples should also consider negotiating prior to marriage regarding the use of
funds for the payment of potential marital debts and whether they wish to comingle
their personal incomes or dedicate only a portion of their incomes to the marital
funds.386 In case, funds of the spouses acquired prior to marriage are used for the
purpose of opening a joint bank account, proper documentation should be maintained
and reflections must be contained in the prenuptial agreement as to the contribution
of each spouse and the manner in which they wish for
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the joint funds to be treated later on in the marriage.387 Further, it may also be
beneficial to demarcate within the prenuptial agreement as to how the common
household expenses shall be discharged and the relative burden thereof on each
spouse.
So also, in case either or both spouses have an existing business venture, if the
spouse seeks to prevent the business or any asset associated thereof from being
viewed as marital property, it would be beneficial to explicitly mention in the
prenuptial agreement as to the exclusion of rights of the other spouse in relation to
the assets of the business.388 Based on the personal considerations among the
spouses, similar exclusionary clauses may also be incorporated with respect to other
assets owned by one spouse, such as shares, jewellery, interest on debt issued,
automobile and collectible items.389
Moreover, it is pertinent that a prospective Indian wife considers incorporating a
clause in her prenuptial agreement which provides that the gifts that she receives in
marriage shall be treated as her stridhan, meaning that she will have sole rights over
it, with no rights vesting in either her husband or in-laws in relation to such gifts.
Particular clauses could also be included stating as to the manner of devolution of
property in case of death of either spouse and absence of any offsprings, which may
indeed operate as a testamentary instrument, subject to existing law relating to wills.
It is also recommended that couples include a clause in their prenuptial agreement
requiring each spouse to truthfully disclose their financial assets and liabilities at the
time of marriage.390 Such disclosure can allow each spouse to make an informed
choice with respect to the marriage and make relevant financial decisions, keeping in
mind the financial conditions of the other spouse.391 A clause of this nature should
preferably be associated with a penalty clause providing for imposition of a penalty in
case of discovery of undisclosed assets or liabilities, which were held at the time of
marriage.
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2. Clauses related to children

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Clauses concerning children and issues related to them can also be included in
prenuptial agreements. In case of one spouse having children from previous marriage
(s), the children's rights to his/her assets could potentially be secured by means of a
prenuptial agreement.392 By providing necessary stipulations in their prenuptial
agreement, couples can ensure that in the event of their death in the course of
marriage or during divorce proceedings, children from their previous marriage(s) are
not deprived of their respective shares in his/her property,393 and as mentioned earlier,
such clauses can legally take effect as testamentary pronouncements for the purpose
of succession on death of the spouse. Although such clauses and relevant variations
thereof can potentially set down terms regarding inheritance for children, prenuptial
agreements may not be able to set down rules regarding custody, visitation rights or
child support that is required to be paid by one spouse to the other in case of
separation.
This is because issues regarding custody and visitation are determined based on
consideration of the principle of best interest of the child.394 Since there is no formula
which can be applied in all cases for an objective determination of what constitutes
best interest, it is not feasible to contractually devise or in fact strictly enforce
conditions regarding custody or visitation. Circumstances of parents and the temporal
change therein may largely change the perception of courts regarding which parent
should have primary custody or which parent may in fact pose a threat to the holistic
growth of the child. Therefore, attempting to restrict judicial determination by means
of prenuptial agreements would be rendered be futile since such clauses could
ultimately be rendered infructuous in a court of law.
Moreover, it must be noted that enforcement of such restrictive clauses may be
potentially harmful to the interest of the child, owing to the fact that it would then
potentially provide even an abusive parent with custody of a child just because the
prenuptial agreement says so. So also, with reference to the determination of
visitation rights, prenuptial agreements should not contain clauses which may pose a
hurdle in the court's determination of whether a parent should be provided with such
opportunity, which is anyhow a decision based on consideration of a number of
relevant factors.
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Additionally, it is suggested that the quantum of child support should not sought to
be capped using a prenuptial agreement since a cap howsoever high or low cannot
properly estimate the possible expenditures that may be incurred with respect to the
children of the couple, since it is difficult to predict the number of children that will be
born, when they will be born, the rate of inflation persisting at the time, the unique
conditions surrounding the child and the cost of providing opportunities amenable to
the structured growth of the child. Nonetheless, clauses of the prenuptial agreement
may be used to specify the minimum threshold that must be adhered to in terms of
upkeep of the children, by dealing with issues such as type of schooling to be
provided,395 nature of extracurricular activities that the children should be given the
opportunity to participate in, and by providing for the fulfillment of basic necessities of
the nature of safe living conditions, proper nutrition and season specific clothing
options to be made available to the child.
3. Clauses related to spousal rights and duties
It is arguably a wise idea to specify the dynamics of the marital relationship sought
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by the spouses from each other. This can help ensure that the freedom of choice of
either spouse is not inhibited by the other at any point during the marriage.
Discussing the expectations that each spouse has from the other and mentioning the
negotiated terms as to their respective rights and duties in a marriage can be
beneficial in streamlining the roles within the marriage.396
On the basis of the needs of the spouses, they can specifically mention or exclude
the rights that each of them have in relation to the marriage and the duties that each
would have to perform in this respect. While the range of possible clauses in this
respect would be fairly large, there are some clauses which would be specifically
prudent for spouses to consider adding to their agreement.
A clause providing for the payment of compensation for proved marital torture or
cruelty by either spouse can arguably act as an important safeguard against domestic
violence.397 In order for the clause to act as an effective deterrent, the amount so
specified as the compensation, should be determined having regard to the income of
each spouse such that the compensation amount appears to be considerably high to
the spouse on whom it may be potentially applicable. The need for the accusation of
cruelty to be legally proved prior to the compensation clause coming into effect should
be emphasised so as to avoid extortion by a
Page: 281
spouse. It is also advisable to mention only the minimum amount of compensation in

the prenuptial agreement, in order to not restrict the powers of the adjudicating court
to provide requisite compensation under the Protection of Women from Domestic
Violence Act, 2005. Spouses could also use the prenuptial agreement as a tool for
specifying the circumstances under which they would be permitted to remove
themselves from the vicinity of their spouse or cease association with their spouse
with ‘reasonable excuse’, without being vulnerable to being caused to return against
their will by virtue of an order of restitution of conjugal rights.398
The prenuptial agreement may also comprise of provisions dealing with medical
situations by mentioning the nature of duty on the part of the healthy spouse towards
bearing the medical costs of the ailing spouse.399 Such clauses should also necessarily
deal with the nature of duties in case an earning spouse suffers from a medical
condition in the course of marriage, rendering him or her incapable of continuing to
draw the equivalent amount of income as before. Relevant clauses specifying the
extent of insurance coverage that the couple would enjoy together should also be
inserted.400 The couple may further contractually decide to set aside some amount of
money on a monthly or annual basis towards medical expenditure and determine the
extent to which the corpus so formed can be utilised for payment of each of their
medical bills, in case either suffers from a serious medical condition.401 Such clauses
can be specifically crucial for individuals who suffer from a chronic illness or disability
(physical or mental) at the time of marriage, in charting out the manner in which their
medical expenses would be dealt with post marriage.402
In case a spouse comes from a financially well off family and expects to receive
assets as part of their inheritance in the future, it is suggested that they should
incorporate clauses regarding the nature of rights in terms of possession, use or
usufruct that their spouse may exercise either separately or in conjunction with them
in relation to the inherited property.403 Additional clauses could also be included
referring to the nature of sharing of benefits received by one spouse
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Page: 282
in terms of government schemes, employment rewards or private assistance. If a

husband or wife is engaged in a vocation or job providing for preferential hiring of a
family member in case of their death, he or she may also specify in the prenuptial
agreement about their intention for their job to be provided to their spouse in the
event of his or death. The prenuptial agreement may also be used to comment on the
need of the wife to change her surname following marriage.
Couples can also consider introducing a penalty clause in the prenuptial agreement
in relation to breach of trust through disclosure of privileged communication between
them through testimony or otherwise in a court of law, even though such evidence will
not be admissible as per Indian Evidence Act, 1872. By specifically providing the
dynamics of the fiduciary duties owed by one spouse to the other and providing for
enforcement thereof through penalties, the prenuptial agreement may also be used by
couples as a means of securing disclosures from each other pertaining to previous
criminal records, previous or ongoing litigations, previous marital status and former
allegations of marital misconduct raised against the spouse.
4. Lifestyle clauses
The contractual nature of prenuptial agreements and the absence of any legally
mandated form of such agreements can be seen to be providing scope for minute
customisation of its clauses. Couples can utilise this flexibility of prenuptial
agreements to incorporate ‘lifestyle clauses’ which deal with the manner in which they
shall live as a couple and the ideals and standards that each spouse would be required
to adhere to.404 While such lifestyle clauses have been popularised through prenuptial
agreements among celebrities,405 they are easily adaptable by non-celebrity couples as
well, allowing them to pick and choose the way they are as a couple.406
Lifestyle clauses may potentially be used to govern most matters that the couple
faces, right from the wedding to the divorce, and everything in between. Due to the
versatile nature of clauses which could be introduced, a bride or groom could
potentially require for the wedding ceremony to include a certain number of functions,
choose the venue and even set out the theme for the marriage. Clauses in the
prenuptial agreement could also be potentially used for the purpose
Page: 283
of specifying whether the couple is to live together separately or jointly with either
spouse's family, subject to the financial capabilities of the couple.
Since the lifestyle clauses of the prenuptial agreement, as with other types of
clauses, will be effective only based on the free consent of both parties, the possibility
of one spouse imposing their will on the other is considerably less. In case, a spouse is
made to sign a prenuptial agreement with clauses to which he or she does not freely
consent, standard mechanisms for voiding of the contract by proving coercion, fraud,
undue influence or mistake can be used to prevent the clauses from taking effect
altogether or to stop them from binding the disadvantaged spouse further.
Couples may further use lifestyle clauses for the purpose of determining the area
that they will live in or the nature of housekeeping duties that each of them will
perform.407 In case the couple has a pet, they can use the prenuptial agreement to
specify the custodial aspects with respect to the pet in case of their separation or
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divorce.408 If the spouses belong to different religions, they may also provide for the
religious belief system that their children would be raised in by prescribing a clause in
the prenuptial agreement.409 It is suggested that in such cases, the prenuptial
agreement should also specifically provide that neither spouse would compel the other
to adopt the practices of the religion he or she practices and neither spouse would be
prevented by the other from practicing their religion, unless it causes a threat to the
health of the family or has negative societal impact.
Inclusion of a fidelity clause could also be considered by couples, wherein the
unfaithful spouse would be required to pay a certain amount as penalty to the other
spouse or give up rights in shared marital assets if the adulterous relationship is
established in a court of law.410 Further, penalising clauses with respect to bad habits
such as gambling, drug abuse or alcoholism could be included wherein the errant
spouse would be liable to pay a penalty either in monetary terms, through waiver of
rights or otherwise for violation of the specifications in such respect in the prenuptial
agreement.411 Based on the widespread broadcasting
Page: 284
of relationships which take place through social media, couples may also consider
delineating through a social media clause, the nature of content regarding each other,
each other's families, friends or their relationship that each of them can share on
various social media platforms.412
5. Operational clauses
Based on their personal understanding, couples could also provide operative clauses
and sunset clause within their prenuptial agreements. The operative clause could
specify the particular event which would cause the prenuptial agreement to come into
effect.413 Multiple operative clauses dealing with the operation of specific clauses in the
prenuptial agreement could also be incorporated based on the mutual accord of the
couple. This can allow for flexibility in terms of giving the couple a choice to postpone
the effect of the prenuptial agreement based on relevant considerations instead of
being bound by it immediately after their marriage.
Operative events apart from marriage can include but would not be limited to
judicial separation, moving out of a spouse from the marital home, filing of divorce or
serving of notice of divorce. A sunset clause on the other hand, can also be
incorporated in case the couple believes that the prenuptial agreement would not be
required to govern their relationship in case of the happening of certain events or the
passage of certain period of time.414 A sunset clause can for instance, provide that the
prenuptial agreement will not be operative after certain years of togetherness or after
the birth of their second child. Additionally, it is suggested that couples entering into
prenuptial agreements should also consider having an amendment clause, allowing for
them to modify the clauses based on the changing circumstances of their relationship
and their surroundings.415
VI. CONCLUSION
While there is great potential for formulating prenuptial agreements capable of
catering to the specific needs of Indian couples, the absence of specific legislative
guidance on the same may pose a serious hurdle in the path of such agreements being
used as cogent instruments for determining the nuanced dynamics of a marital
relationship. Disregard of the potential benefits of introducing
Page: 285
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prenuptial agreements within the marital framework on account of simplistic concerns,

often based on archaic thinking, and the absence of proactive deliberation by the State
for recognising and regulating such agreements, is unfortunately acting as an
impediment towards couples in India consensually setting out the terms on which they
want to be married. As has been shown in the paper, some of the core criticisms which
may be raised against prenuptial agreements can be rebutted easily. It has also been
demonstrated that prenuptial agreements are not per se against established legal
principles in India and can indeed be framed so as to not come into conflict with
settled law. Further, the accordance of validity to prenuptial agreements in various
countries around the world stands testimony to the possibility of realistically
implementing the terms of such agreements.
It is true that marriage plays an important role within Indian society and there is a
consequent fear that prenuptial agreements may taint the tightly held fabric of Indian
families. However, we urge reconsideration of this position on the issue of prenuptial
agreements, in light of the developments in the field of family law, both in India and
abroad, some of which have been highlighted through the course of this paper. We
submit that providing spouses with the autonomy to work on a consolidated outline,
clearly denoting what they want from each other and the marriage, can not only help
in ensuring that both have an equal footing in the relationship but also assist in
protecting both spouses, particularly the female spouse in relevant cases, from being
subjected to injustices which are generally prevalent within marital relations in India.
While the contractual nature of prenuptial agreements means that they can be
considered through the lens of the provisions of the Indian Contract Act, 1872 to a
certain extent, it is unfortunate that the existing coverage of Indian personal law
concerning such agreements is largely insufficient. The question though remains as to
whether in the absence of specific legal instruction regarding such agreements, it
would be correct to consider marriage agreements like commercial agreements in the
Indian context. Arguably such an orientation towards prenuptial agreements may not
be ideal, given that prospective couples are likely to share loving relations wherein
attitude for bargain is usually altruistic and magnanimous while entering into
prenuptial agreements. Alternately, unlike commercial relationships future mapping in
marital relationships is not easy; unexpected misfortunes, unexplored avenues, and
emerging opportunities may force couples to revise their plans as after all they are
“[e]nvisioning the end of a marriage not yet begun” and attempting to be planning to
decide on a relation which has not yet materialised.416 Hence, commercial and marital
agreements would require entirely different treatments.
Page: 286
Consequently, we propose that there is a need for serious deliberation on the

manner in which prenuptial agreements can be regulated and such regulations once
formulated, should be incorporated within the Indian legal system instead of
continuing to deal with such agreements in the currently judicial piecemeal manner.
Further, in light of there being no definitive judicial pronouncement from the Supreme
Court of India concerning the nature and extent of validity of prenuptial agreements,
the creation of an instructive executive guidance note or the introduction of relevant
legal provisions in personal laws governing the scope and extent of prenuptial
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agreements would be welcome. We express the hope that the Indian legislature and
executive will soon recognise the emerging necessity of prenuptial agreements in
relation to marriages in today's India and not only extend legal recognition to the
same, but also consider the formulation of one or more model prenuptial agreements
which can thereafter act as samples of legally valid terms which couples in India can
refer to in the course of formulating their own prenuptial agreements.
———
*
The authors are students of the Fifth Year and Fourth Year of BA LLB (Hons.) at the National University of
Juridical Sciences, Kolkata respectively.
This paper was first submitted by the authors in their respective capacity as Grade A and Grade B Members of
the NUJS Law Review. The authors express their heartfelt gratitude to Ms. Ira Chadha-Sridhar and Mr. Vivasvan
Bansal for their comments which have helped to shape this paper. The responsibility for the facts stated,
opinions expressed, and conclusions drawn are entirely ours.
1 Prenuptial Agreements Are on the Rise, and More Women are Requesting Them, HUFFINGTON POST , October 22,
2013, available at https : //www.huffingtonpost.com/2013/10/22/prenups-_n_4145551.html (Last visited on June
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2
Why are prenuptial agreements becoming so popular?, WINSTON SOLICITORS LLP, September 17, 2015, available
at https : //www.winstonsolicitors.co.uk/blog/why -are-prenuptial-agreements-becoming-so-popular.html (Last
visited on June 3, 2019); Arlene Dubin & Rebecca A. Provder, Current Trends in a Growth Area : Prenuptial
Agreements, MOSES & SINGER LLP, July 30, 2012, available at https : //www.mosessinger.com/uploads/
currenttrendsgrowthareaprenupagreements.pdf (Last visited on June 3, 2019).
3 Why prenuptial agreements are more popular today, T ORRES LAW , P.C, August 23, 2017, available at
http://www.tlghouston.com/blog/2017/08/ why-prenuptial-agreements-are-more-popular-today.shtml (Last
visited on June 3, 2019); Hillary Hoffower, Prenups aren't just for the rich or famous—more millennials are
signing them before getting married, and you probably should too, BUSINESS INSIDER, September 30, 2018,
available at https : //www.businessinsider.in/personal-finance/prenups-arent-just-for-the-rich -or-famous-more-
millennials-are-signing-them-before-getting-married-and -you-probably-should-too/articleshow/66018811.cms
(Last visited on June 6, 2019).
4 American Academy of Matrimonial Lawyers, Prenuptial Agreements on the Rise finds Survey, October 26, 2017,
available at http://aaml.org/about-the-academy/press/press-releases/prenuptial-agreements-rise-finds-survey
5
Aarefa Johari, Is India really ready for prenuptial agreements, ask divorce lawyers, Scroll. In, November 20,
2015, available at https : //scroll.in/article/770445/is-india-really-ready-for-prenuptial-agreements-ask-divorce-
lawyers (Last visited on June 7, 2019).
6
See Mela Garber, Why You May Need A Prenup, ANCHIN PRIVATE CLIENT, available at
https : //www.anchin.com/uploads/1413/doc/APC-News_042016_Prenup.pdf (Last visited on June 7, 2019).
7S.P. Sathe, Judicial Activism : The Indian Experience, 6 WASH. U.J.L. & POL'y 51 (2001); Werner Menski, The
Uniform Civil Code Debate in Indian Law : New Developments and Changing Agenda, 9(3) GERMAN LAW JOURNAL
213 (2008), 214.
8
See Shayara Bano v. Union of India, (2017) 9 SCC 1; Navtej Singh Johar v. Union of India, (2018) 10 SCC 1;
Indian Young Lawyers Assn. v. State of Kerala, 2016 SCC OnLine SC 1783.
9 Danial Latifi v. Union of India, (2001) 7 SCC 740.
10See Indrani Basu, What do Modern, Financially-Independent Indian Women look for in a Marriage?, HUFF POST
(March 3, 2016), available at https : //www.huffingtonpost.in/2016/03/08/indian-women-
marriage_n_9401650.html (Last visited on June 5, 2019).
11
Paul R. Amato, The Impact of Divorce on Men and Women in India and United States, 25 J. COMP. FAMILY
STUDIES 207 (1994), 209.
12Reeta Sonawat, Understanding Families in India : A Reflection of Societal Changes, 17(2) TEORIA E PESQUISA
(2001).
13 Shephali Bhatt, Happily divorced : Indian women are breaking the stigma around separation like never before,
T HE ECONOMIC T IMES PANACHE, January 27, 2019, available at
https : //economictimes.indiatimes.com/magazines/panache/happily-divorced-indian-women-are-breaking-the-
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stigma-around -separation-like-never-before/articleshow/67704287.cms?from=mdr (Last visited on June 5,

2019).
14
Anand Giridharadas, With India's New Affluence Comes the Divorce Generation, N.Y. Times, Feb 19, 2008,
available at http://www.nytimes.com/2008/02/19/world/asia/19iht-divorce.110178712html (Last visited on June
10, 2019).
15 Action India—Mahila Panchayat Program, available at http://actionindiaworld.org/pages/programs-
campaigns/women-law-and-social -change/mahila-panchayat-program.php (Last visited on June 12, 2019).
Although the decisions of the Mahila Panchayat are not legally binding, the community members who take part in
these alternative courts help to give effect to the decisions.
16Sylvia Vatuk, The “women's court” in India : an alternative dispute resolution body for women in distress, 45
(1) THE JOURNAL OF LEGAL PLURALISM AND UNOFFICIAL LAW (2013).
17
Divorce Rate in India Increasing, January 9, 2017, available at http://marriagelane.com/divorce-rate-in-india-
increasing/ (Last visited on June 14, 2019).
18Alison Saldanha, Nearly 80% of divorced Indian Muslims are women, shows Census 2011 data, F IRST POST ,
October 15, 2016, available at http://www.firstpost.com/india/nearly-80-of-divorced -indian-muslims-are-women
-shows-census-2011-data-3053332.html (Last visited on June 15, 2019).
19Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law : The Case of Divorce, 88(5)
YALE LAW JOURNAL 950-997 (1979).
20
Vijender Kumar, Matrimonial Property Law in India : Need of the Hour, 57 JILI (2015) 500.
21 Hamidunnessa Biwi v. Zohiruddin Sheikh, ILR (1890) 17 Cal 670 (citation not clear); Khatun Bibi v. Rajjab, 1926
SCC OnLine All 134 : AIR 1926 All 615; Tekait Mon Mohini Jemadai v. Basanta Kumar Singh, 1901 SCC OnLine Cal
60 : ILR (1901) 28 Cal 751; Krishna Aiyar v. Balammal, ILR (1911) 34 Mad 398. In these pre-independence
cases, courts did to accord validity to the prenuptial agreements. However, in other cases before independence
like Banney Saheb v. Abida Begam, 1922 SCC OnLine Oudh JC 86 : AIR 1922 Oudh 251; Mahmud Ali v. Ghulam
Fatima, 1935 SCC OnLine Lah 255 : AIR 1935 Lah 902; Khwaja Muhammad Khan v. Husaini Begam, (1910) 12
Bom LR 638, the courts upheld the prenuptial agreements.
22 Are prenuptial agreements valid and enforceable in India?, The Economic Times, October 13, 2014, available
at https : //economictimes.indiatimes.com/analysis/are-prenuptial-agreements -valid-and-enforceable-in-
india/articleshow/44782040.cms?from=mdr (Last visited on June 9, 2019).
23
But see Divyanashi Chandra, Band, Baajaa, ‘bargain’ : Legal Status of Pre-nuptial Agreements in India,
MANUPATRA , available at http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=e42868ef-4b1d -43cb-
ade4-720680f59c6e&txtsearch=Subject:%20Family%20Law (Last visited on June 11, 2019)(The author suggests
that a prenuptial agreement may be regarded as merely a memorandum of understanding between two individuals
and thus, not overtly binding).
24 Indian Contract Act, 1872, §10 states that “All agreements are contracts if they are made by the free
consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not
hereby expressly declared to be void”; Indian Contract Act, 1872, §23 states that “The consideration or object
of an agreement is lawful, unless … the Court regards it as … opposed to public policy”.
25
Tekait Mon Mohini Jemadai v. Basanta Kumar Singh, 1901 SCC OnLine Cal 60 : ILR (1901) 28 Cal 751; Krishna
Aiyar v. Balammal, ILR (1911) 34 Mad 398.
26
Abbot Downing, A Thoughtful Approach to Prenuptial Agreements, available at
https : //www.abbotdowning.com/_asset/630bk4/A-Thoughtful-Approach-to-Prenuptial-Agreements.pdf (Last
visited on June 10, 2019); see Batya Medad, The Ketubah as a Prenup, Jewish Press, available at
https : //www.jewishpress.com/blogs/shiloh-musings/the-ketubah-as-a-prenup/2013/02/10/ (Last visited on
June 10, 2019).
27
Justice (Retd.) S.A. Kader, Dissolution of Muslim Marriage and Remarriage of the Divorced Couple, (2004) 1
LW 41 (JS); Narendra Kumar Verma, Nikaah as a “Civil Contract” in Muslims, 15(1) RESEARCH LINK (2016).
28 Abdul Moin v. Rafia Bano, Suit No. 125 of 2012, decided on 13-3-2014 (Del).
29
Vincent J. Cornell, Voices of Islam : Voices of Life : Family, Home, and Society, Vol. III, 66 (2007); Brian H.
Bix, Mahr Agreements : Contracting in the Shadow of Family Law (and Religious Law)—A Comment on Oman's
Article, 61(1) WAKE FOREST L. REV. COMMON L. (2011).
30 Indian Contract Act, 1872, §§10, 23 (India).
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31 For more detailed case law discussion, infra Part II (B) of this paper.
32
Tekait Mon Mohini Jemadai v. Basanta Kumar Singh, 1901 SCC OnLine Cal 60 : ILR (1901) 28 Cal 751.
33
Khatun Bibi v. Rajjab, 1926 SCC OnLine All 134 : AIR 1926 All 615.
34 Krishna Aiyar v. Balammal, ILR (1911) 34 Mad 398.
35
Bai Fatma v. Alimahomed Aiyeb, ILR (1913) 37 Bom 280 : (1912) 14 Bom LR 1178.
36 Jani v. Mohd. Khan, 1970 SCC OnLine J&K 7 : AIR 1970 J&K 154.
37 Appibai v. Khimji Cooverji, 1934 SCC OnLine Bom 62 : AIR 1936 Bom 138.
38
Id., ¶20.
39 Syed Abbas Ali v. Nazemunnessa Begum, 1939 SCC OnLine Cal 133 : (1938-39) 43 CWN 1059.
40 Mohd. Muin-Ud-Din v. Jamal Fatima, 1921 SCC OnLine All 38 : AIR 1921 All 152 : ILR (1921) 43 All 650.
41 Mohd. Khan v. Shahmali, 1971 SCC OnLine J&K 32 : AIR 1972 J&K 8.
42 Fender v. St. John Mildmay, [1938] A.C. 1.

43 ONGC Ltd. v. Saw Pipes Ltd., (2003) 5 SCC 705.
44 Central Inland Water Transport Corpn. Ltd. v. Brojo Nath Ganguly, (1986) 3 SCC 156 : (1986) 2 LLJ 171.
45 Janson v. Driefontein Consolidated Gold Mines Ltd., [1902] A.C. 484, 500.
46 Ratanachand Hirachand v. Askar Nawaz Jung, 1975 SCC OnLine AP 38 : AIR 1976 AP 112.
47 Radmacher v. Granatino, (2010) UKSC 42.
48 Paigi v. Sheonarain, 1885 SCC OnLine All 24 : ILR (1886) 8 All 78.
49 Id., ¶9.
50 Id., ¶3.
51 Tekait Mon Mohini Jemadai v. Basanta Kumar Singh, 1901 SCC OnLine Cal 60 : ILR (1901) 28 Cal 751.
52 Wilson v. Wilson, (1864) 1 H.L.C. 538; Merryweather v. Jones, (1868) 4 Giff. 509.
53Tekait Mon Mohini Jemadai v. Basanta Kumar Singh, 1901 SCC OnLine Cal 60 : ILR (1901) 28 Cal 751, ¶¶39,
44.
54
Krishna Aiyar v. Balammal, ILR (1911) 34 Mad 398.
55
Id., ¶2.
56 A.E. Thirumal Naidu v. Rajammal, 1967 SCC OnLine Mad 3 : (1967) 2 Mad LJ 484.
57 Id., ¶¶8-9.
58 Sribataha Barik v. Padma, 1968 SCC OnLine Ori 41 : AIR 1969 Ori 112.
59 Id., ¶¶5, 6, 8.
60 Pran Mohan Das v. Hari Mohan Das, 1924 SCC OnLine Cal 94 : AIR 1925 Cal 856.
61 Id., ¶5, 9.
62 Id., ¶8.
63 CIT v. Mansukhrai More, 1988 SCC OnLine Cal 339 : (1988) 174 ITR 703 : (1989) 75 CTR 101.
64 Sunita Devendra Deshprabhu v. Sitadevi Deshprabhu, 2016 SCC OnLine Bom 9296 : (2016) 6 Bom CR 567.
65 Appibai v. Khimji Cooverji, 1934 SCC OnLine Bom 62 : AIR 1936 Bom 138.
66 Id., ¶¶15, 19.

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67 Id., ¶17.
68
Id., ¶20.
69 Sandhya Chatterjee v. Salil Chandra Chatterjee, 1980 SCC OnLine Cal 67 : AIR 1980 Cal 244.
70 Printing and Numerical Registering Co. v. Sampson, (1875) 19 Eq. 462.
71
Sandhya Chatterjee v. Salil Chandra Chatterjee, 1980 SCC OnLine Cal 67 : AIR 1980 Cal 244, ¶14.
72 Id., ¶21.
73 Bai Fatma v. Alimahomed Aiyeb, ILR (1913) 37 Bom 280 : (1912) 14 Bom LR 1178.
74 Id., ¶3.
75 Radmacher v. Granatino, (2010) UKSC 42, ¶78.

76 Khatun Bibi v. Rajjab, 1926 SCC OnLine All 134 : AIR 1926 All 615.
77 Id., ¶6.
78 Ahmad Kasim Molla v. Khatun Bibi, 1931 SCC OnLine Cal 278 : AIR 1933 Cal 27.
79 Id., ¶18.
80 Id., ¶22.
81Id., ¶¶31, 32. After almost seven decades, one of the propositions made in the Kasim Molla case was overruled
by the Supreme Court of India in the judgment of Shamim Ara v. State of U.P., (2002) 7 SCC 518. It was held
that “a mere plea taken in the written statement of a divorce having been pronounced sometime in the past
cannot by itself be treated as effectuating talaq on the date of delivery of the copy of the written statement to
the wife”.
82
Mohd. Muin-Ud-Din v. Jamal Fatima, 1921 SCC OnLine All 38 : AIR 1921 All 152 : ILR (1921) 43 All 650.
83
Buffatan Bibi v. Sk. Abdul Salim, 1950 SCC OnLine Cal 28 : AIR 1950 Cal 304.
84 Id., ¶2.
85 Id., ¶5.
86 Saifuddin Sekh v. Soneka Bibi, 1954 SCC OnLine Gau 47 : AIR 1955 Assam 153.
87 Id., ¶6.
88 Razia Begum v. Sahebzadi Anwar Begum, AIR 1958 SC 886 : 1959 SCR 1111.
89 Mohd. Khan v. Shahmali, 1971 SCC OnLine J&K 32 : AIR 1972 J&K 8.
90
Id., ¶¶5, 6.
91 Id., ¶¶8-10.
92
Mozelle Robin Solomon v. R.J. Solomon, 1968 SCC OnLine Bom 120 : (1979) 81 Bom LR 578.
93
Id., ¶33.
94 Divorce Act, 1869, §40 (India).
95 Jose Paulo Coutinho v. Maria Luiza Valentina Pereira, 2019 SCC OnLine SC 1190, ¶24.
96
Portuguese Civil Code, 1867, Art. 1096.
97
The Select Committee on Bill No. 36 - The Goa Succession, Special Notaries & Inventory Proceeding Bill, 2008,
Series I, No. 20, Official Gazette—Govt. Of Goa, August 12, 2010; Disha Pareek, Civil Code of Goa v. Personal
Laws in India, IPLEADERS, July 17, 2016, available at https : //blog.ipleaders.in/civil-code-goa-vs-personal-laws-
india/ (Last visited on June 13, 2019); Nandini Chavan & Qutub Jehan Kidwai, Personal Law Reforms and Gender
Empowerment : A Debate on Uniform Civil Code 245-46 (2006).
98 Damodar Ramnath Alve v. Gokuldas Ramnath Alve, 1996 SCC OnLine Bom 47 : (1997) 4 Bom CR 653.
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99
Dilshad Billimoria, Prenuptial agreements : building a safety net around assets, LIVE MINT , January 21, 2016,
available at https : //www.livemint.com/Money/ngLavHhlUeaCqDN2xoqa2K/Prenuptial -agreements-building-a-
safety-net-around-assets.html (Last visited on June 12, 2019).
100Arunima Jha, Pre-Nuptial Agreement : A Death Knell for Marriage, A.P. LEGAL SERVICES PVT . LTD ., Available at
http://www.goforthelaw.com/index.php/browsearticles/loadarticleview/181.html (Last visited on June 13, 2019).
101A. Ghosh & P. Agarwal, Prenuptial Agreement : A Necessity of Modern Era, 2(5) INTERNATIONAL J OF
RESEARCH AND ANALYSIS 23 (2014).
102
Parting Shot, T HE T ELEGRAPH, Kolkata, April 4, 2012, available at
https : //www.telegraphindia.com/1120404/jsp/opinion/story_15332562.jsp#.T32fB3k3PIV (Last visited on June
13, 2019); Indulekha Aravind & Priyanka Sharma, Legally Bound, BUSINESS STANDARD, January 20, 2013, available
at http://www.business-standard.com/article/beyond-business/legally -bound-112072100025_1.html (Last
visited on June 12, 2019).
103 Raghav Ohri, As marital bliss eludes couples, pre-nuptial agreements mark their Indian debut, The Economic
Times, September 18, 2015, available at https : //economictimes.indiatimes.com/news/politics-and-nation/as-
marital -bliss-eludes-couples-pre-nuptial-agreements-mark-their-indian-debut/articleshow/49005548.cms (Last
visited on June 12, 2019); I do—and I want, T HE T ELEGRAPH, November 25, 2015.
104Moushumi Das Gupta, Too early to give prenuptial agreement legal backing : Govt, Hindustan Times, March 2,
2018, available at https : //www.hindustantimes.com/india-news/too-early-to-give-prenuptial -agreement-legal-
backing-govt/story-1AK9s4oUMRT6eGdKtDgbYM.html (Last visited on June 12, 2019).
105
Kusum, Family Law Lectures : Family Law I, (4th ed., 2015).
106 See also Letters—Live in relationships, The Hindu, December 2, 2013, available at
http://www.thehindu.com/opinion/letters/livein-relationships/article5411360.ece (Last visited on June 13, 2019).
107 Samarth Singh, India's stigma : The Prenuptial Agreement, April 14, 2015, available at
http://www.samarthsingh.com/indias-stigma-the-prenuptial-agreement (Last visited on June 13, 2019).
108
See B.J. Mann, Does a Prenuptial Agreement Lead to Divorce?, March 15, 2016, available at
https : //www.linkedin.com/pulse/does-prenuptial-agreement-lead-divorce-bj-mann/ (Last visited on June 13,
2019).
109 Id.
110 Kusum, supra note 105.
111
Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa Yasinkhan, (1981) 4 SCC 250 : AIR 1981 SC 1972.
112
Muhammad Munir, Marriage in Islam—A Civil Contract or Sacrosanct?, 30(1) HAMDARD ISLAMICUS 77-84
(2008).
113Muthuswami Mudaliar v. Masilamani, (1910) 20 Mad LJ 49 : 5 Ind Cas 42; Bhagwati Saran Singh v.
Parmeshwari Nandan Singh, 1942 SCC OnLine All 162 : ILR 1942 All 518; Aunjona Dasi v. Prahlad Chandra Ghose,
(1870) 6 Beng LR 243.
114
Peter Philip Saldanha v. Anne Grace Saldanha, 1929 SCC OnLine Bom 56 : (1930) 32 Bom LR 17.
115 The Divorce Act, 1869, §40 (India).
116 See Kelly Frawley & Emily Pollock, How A Prenuptial Agreement Can Help Protect Your Business Interests,
F ORBES , available at https : //www.forbes.com/sites/frawleypollock/2019/07/20/ how-a-prenuptial-agreement-
can-help-protect-your-business-interests/#289dc4644f94 (Last visited on June 14, 2019).
117
See Katherine Stoner & Shae Irving, Working Together in PRENUPTIAL AGREEMENTS : HO W T O WR I T E A FAIR &
LASTING CONTRACT 262-264 (5th ed., 2016).
118See also Bindu N. Doddahatti, The Dangerous, False Myth that Women Routinely Misuse Domestic Cruelty
Laws, T HE WI R E, August 11, 2017, available at https : //thewire.in/166766/section-498a-domestic-cruelty-laws/
See also Brian Brix, Bargaining in the Shadow of Love : The Enforcement of Premarital Agreements and How
119
We Think About Marriage, 40 (1) WILLIAM & MARY LAW REVIEW 169 (1998), 170.
120
See Lisa Aronson Fontes, The Prenup Trap : Premarital Agreements and Coercive Control, April 28, 2016,
-----------------------------------------------------------------------------------------------------------------------------------------------------------
available at https : //www.psychologytoday.com/blog/invisible-chains/201604/the-prenup-trap-premarital -

agreements-and-coercive-control (Last visited on June 14, 2019).
121 See Chandra, supra note 23.
122 See Laurie Israel, The Generous Prenup : How To Support Your Marriage and Avoid the Pitfalls 20 (2018).
123
A closely associated line of argumentation has been presented by the Law Commission of India in relation to
§498A wherein it has stated that “Its object and purpose cannot be stultified by overemphasizing its potentiality
for abuse or misuse. Misuse by itself cannot be a ground to repeal it or to take away its teeth wholesale. The re
-evaluation of §498A merely on the ground of abuse is not warranted.” Law Commission of India, Section 498A
IPC, Report No. 243 (August 2012) 14, ¶7.1.
124A division bench of the Supreme Court sought to issue guidelines for the prevention of misuse of Section 498A
of the Penal Code, 1860 (pertaining to the offence of husband or relative of husband of a woman subjecting her
to cruelty) by its judgment in Rajesh Sharma v. State of U.P., (2018) 10 SCC 472. The directions given in this
respect were subsequently modified by a three-judge bench in Social Action Forum for Manav Adhikar v. Union of
India, 2018 SCC OnLine SC 1501 : (2018) 10 SCC 443.
125 Prenuptial Agreement Options, MCILVEEN F AMILY LAW F IRM , available at
https : //www.mcilveenfamilylaw.com/prenuptial-agreement-options/ (Last visited on June 15, 2019)(Courts in
North Carolina can require a spouse to extend financial support to the dependent spouse in the event that
enforcing an agreement to the effect that no financial support would be given, would result in the dependent
spouse becoming reliant on state supported public assistance).
126
Saarthak India, Women's Situation in India, available at http://saarthakindia.org/womens_situation_India.html
127Lavanya Garg, Only 5% of Women in India Choose Their Husbands, 80% Need Permission To Visit A Health
Centre, HUFFPOST , February 13, 2017, available at https : //www.huffingtonpost.in/2017/02/13/only -5-of-
women-in-india-choose-their-husbands-80-need-permis_a_21713027/ (Last visited on June 15, 2019).
128Utpal Dholakia, How Do Indian Women Fare in an Arranged Marriage?, Psychology Today, December 15, 2015,
available at https : //www.psychologytoday.com/blog/the-science-behind-behavior/201512/how-do-indian-
women-fare-in-arranged-marriage (Last visited on June 15, 2019).
129
Gupta, supra note 104.
130 See Gail Frommer Brod, Premarital Agreements and Gender Justice, 6, YALE J.L. & FEMINISM 229 (1994), 279.
131See Simeone v. Simeone, 581 A.2d 162, 165 (Pa. 1990)(Although providing a different position upon analysis
of the changing societal circumstances in the United States, the Supreme Court of Pennsylvania observed that
earlier decisions relating to prenuptial agreements had been influenced by the understanding of the unequal
status between spouses).
132
See Balfour v. Balfour, [1919] 2 K.B. 571.
133 Indian Contract Act, 1872, §§10, 23 (India).
134 Bhagwant Genuji Girme v. Gangabisan Ramgopal, 1940 SCC OnLine Bom 25 : AIR 1940 Bom 369; Carsten
Daugbjerg & Rasmus Brun Pedersen, Temporal analysis of public policy evolution : Policy sequences and process
tracing, available at
https : //www.psa.ac.uk/sites/default/files/conference/papers/2014/PSA_2014_Daugbjerg_Pedersen%
20Submitted_0.pdf (Last visited on June 17, 2019).
135
See also Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
136 Nagle v. Fielden, [1996] 2 Q.B. 633, 650.
137 See Prenuptial Agreements : Yours, Mine and Ours, PRIDE LEGAL, February 12, 2019, available at
https : //pridelegal.com/prenuptial-agreements/ (Last visited on June 17, 2019).
138
See Giacomo Oberto, Prenuptial Agreements in Contemplation of Divorce : European and Italian Perspectives
in PARTY AUTONOMY IN EUROPEAN PRIVATE (AND) INTERNATIONAL LAW 221-245 (Bettina Heiderhoff & Ilaria Queirolo ed.,
2015).
139Law Commission (United Kingdom), Matrimonial Property Agreements, Consultation Paper No. 198, Part 4
(2011).
140 Radmacher v. Granatino, (2010) UKSC 42 ¶3; Christopher Sharp QC, Pre and Post-Nuptial Agreements—
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Increasingly Relevant?, April 29, 2009, available at https : //fdocuments.in/document/29th-christopher-sharp-qc

-st-johns- chambers-christopher-sharp-qc-st-johns.html (Last visited on June 15, 2019).
141 Matrimonial Causes Act, 1973, §§21-25 (United Kingdom).
142Westmeath v. Westmeath, (1830) 6 ER 619; Cocksedge v. Cocksedge, (1844) 60 ER 351; Cartwright v.

Cartwright, (1853) 43 ER 385; H v. W, (1857) 69 ER 1157.
143
Cocksedge v. Cocksedge, (1844) 60 ER 351.
144 Hyman v. Hyman, [1929] A.C. 601.
145 Id.
146 Matrimonial Causes Act, 1973, §§34-36 (United Kingdom).
147Tekait Mon Mohini Jemadai v. Basanta Kumar Singh, 1901 SCC OnLine Cal 60 : ILR (1901) 28 Cal 751; Krishna
Aiyar v. Balammal, ILR (1911) 34 Mad 398; A.E. Thirumal Naidu v. Rajammal, 1967 SCC OnLine Mad 3 : (1967) 2
Mad LJ 484; Sribataha Barik v. Padma, 1968 SCC OnLine Ori 41 : AIR 1969 Ori 112.
148 A.E. Thirumal Naidu v. Rajammal, 1967 SCC OnLine Mad 3 : (1967) 2 Mad LJ 484, ¶¶7-9.
149Jeremy D. Morley, Enforceable Pre-nuptial Agreements : Their Time has Come, 36 FAMILY LAW JOURNAL 772
(2006).
150 Id.
151 See LAW SOCIETY OF ENGLAND AND WALES, F AMILY LAW PR O T O C O L (2nd ed., 2006).
152 MacLeod v. MacLeod, (2008) UKPC 64.
153 Id., ¶36.

155 Z v. Z, (2011) EWHC 2878.
156 Page v. Page, (1981) 2 FLR 198, 201.
157 Preston v. Preston, (1982) 1 All ER 41.
158 V v. V, (2011) EWHC 3230.
159 Y v. Y, (2014) EWHC 2920.
160 Id., ¶111.

161
Luckwell v. Limata, (2014) EWHC 502.
162
Law Commission (United Kingdom), Matrimonial Property, needs and agreements : the future of financial
orders on divorce and dissolution, Executive Summary, ¶¶1.26, 1.27 (2014), available at
http://www.lawcom.gov.uk/app/uploads/2015/03/lc343_matrimonial_property_summary.pdf (Last visited on June
18, 2019).
163 Id., 7.
164
Id.
165 Id.
166Law Commission (United Kingdom), Matrimonial Property, Needs and Agreements, Consultation Paper No. 343,
February 27, 2014.
167 Id., ¶1.6.
168
Id., ¶1.34.
169 Id., Appendix A, 181; Id., ¶¶5.1-7.66.
170 Id., ¶5.3.
171 Id., ¶1.27.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
172 Family Justice Council, Sorting out Finances on Divorce, April 2016, available at
https : //www.judiciary.gov.uk/wp-content/uploads/2016/04/fjc -financial-needs-april-16-final.pdf (Last visited
on June 15, 2019).
173 Divorce (Financial Provision) Bill 2017-19, HL Bill 310, available at
https : //publications.parliament.uk/pa/bills/cbill/2017-2019/0310/cbill_2017-20190310_en_1.htm (Last visited on
June 17, 2019).
174 Divorce (Financial Provision) Bill (HL) : Second Reading, January 27, 2017, available at
https : //hansard.parliament.uk/Lords/2017-01-27/debates/D2A8E873-A6D0-42FB-8138-3C6114A1EDD4/Divorce
(FinancialProvision) Bill(HL)(Last visited on June 17, 2019), ¶947.
175 Id., ¶962.

176Ministry of Justice, Report on the implementation of Law Commission proposals, January 12, 2017, 14, ¶50,
available at
https : //www.gov.uk/government/uploads/system/uploads/attachment_data/file/582679/implementation-of-law-
commission-proposals-report.pdf (Last visited on June 15, 2019).
177Catherine Fairbairn, Pre-nuptial agreements, HOUSE OF COMMONS LIBRARY , Briefing Paper No. 03752, June 21,
2017.
178 Parliament of United Kingdom, Divorce (Financial Provision) Bill (HL) 2017-19, available at
https : //services.parliament.uk/bills/2017-19/divorcefinancialprovision.html (Last visited on June 18, 2019).
179Tekait Mon Mohini Jemadai v. Basanta Kumar Singh, 1901 SCC OnLine Cal 60 : ILR (1901) 28 Cal 751; Krishna
Aiyar v. Balammal, ILR (1911) 34 Mad 398; A.E. Thirumal Naidu v. Rajammal, 1967 SCC OnLine Mad 3 : (1967) 2
Mad LJ 484; Sribataha Barik v. Padma, 1968 SCC OnLine Ori 41 : AIR 1969 Ori 112.
180 Sandhya Chatterjee v. Salil Chandra Chatterjee, 1980 SCC OnLine Cal 67 : AIR 1980 Cal 244.
181 CIT v. Mansukhrai More, 1988 SCC OnLine Cal 339 : (1988) 174 ITR 703 : (1989) 75 CTR 101.
182 Sunita Devendra Deshprabhu v. Sitadevi Deshprabhu, 2016 SCC OnLine Bom 9296 : (2016) 6 Bom CR 567.
183Shalini Nair, WCD draft policy seeks review of personal laws, T HE INDIAN EXPRESS , May 5, 2016, available at
http://indianexpress.com/article/india/india-news-india/wcd -draft-policy-seeks-review-of-personal-laws-
2784884/ (Last visited on June 18, 2019).
184Amberlynn Curry, The Uniform Premarital Agreement Act and its Variations throughout the States, 23
JOURNAL OF THE AMERICAN ACADEMY OF MATRIMONIAL LAWYERS 355 (2010), 356.
185
Jeremy D. Morley, Uniform Premarital Agreement Act, T HE LAW OFFICE OF JEREMY D. MORLEY , available at
http://www.internationalprenuptials.com/uniform-prenuptial-agreements-act.html (Last visited on June 17,
2019).
186
Id.
187 Uniform Premarital and Marital Agreements Act, 2013, §9 (United States of America).
188Chelsea Biemiller, The Uncertain Enforceability of Prenuptial Agreements : Why the “Extreme” Approach in
Pennsylvania is the Right Approach for Review, 6 DREXEL L. REV. 147 (2013).
189
Brix, supra note 119.
190J. Thomas Oldham, With All My Worldly Googs I Thee Endow, or Maybe Not : A Reevaluation of the Uniform
Premarital Agreement Act After Three Decades, 19 DUKE J GENDER L & POL'Y 115 (2011), 125; In re Marriage of
Bonds, 5 P.3d 831 (Cal. 2000).
191Sarah Kennedy, Ignorance is Not Bliss : Why States Should Adopt California's Independent Counsel
Requirement for the Enforceability of Prenuptial Agreements, 52 FAM. CT. REV. 713 (2014).
192
See Oldham, supra note 190, 90.
193
See Brix, supra note 119.
194 In re Estate of Hollett, 94 834 A.2d 349 (N.H. 2003); Mallen v. Mallen, 622 S.E.2d 812, 814 (Ga. 2005).
195 In re Marriage of Bonds, 5 P.3d 816, 817, 819, 837, 838 (Cal. 2000).
-----------------------------------------------------------------------------------------------------------------------------------------------------------
196
Id., 815, 823-24.
197National Conference of Commissioners on Uniform State Laws, Proceedings in Committee of the Whole,
Premarital Agreement Act, 71, 73 (July 23-26, 1983).
198 Oldham, supra note 190, 89.
199
Id., 88.
200 Simeone v. Simeone, (1990) 581 A.2d 162 (Pa. 1990).
201 Yarbrough v. Kirkland, 548 S.E.2d 670, 673 (Ga. Ct. App. 2001).
202
Oldham, supra note 190, 84.
203 Id., 121.
204 See Id., 122.
205
California Family Code, 2005, § 1615 (C)(United States of America).
206 Alves v. Alves, 262 A.2d 111 (D.C. 1970).
207Terry J. Turnipseed, Why Shouldn't I be Allowed to Leave My Property to Whomever I choose at my Death?
(or How I Learned to Stop Worrying and Start Loving the French), 44 BRANDEIS L.J. 782 (2006).
208
In re Estate of Geyer, 433 A.2d 423, 429 (Pa. 1985).
209 See Turnipseed, supra note 207, 83; Posner v. Posner, 233 So. 2d 381, 384 (Fla. 1970).
210 Indian Contract Act, 1872, §23 (India).
211
Dilsad Bilimoria, Prenuptial agreements : building a safety net around assets, LIVE MINT , January 21, 2016,
available at http://www.livemint.com/Money/ngLavHhlUeaCqDN2xoqa2K/Prenuptial-agreements -building-a-
safety-net-around-assets.html (Last visited on June 21, 2019); Parting Shot, THE TELEGRAPH, April 4, 2012,
available at https : //www.telegraphindia.com/1120404/jsp/opinion/story_15332562.jsp#.T32fB3k3PIV (Last
212
Divorce Act, R.S.C. 1985, 15.2(4)(Canada).
213 John C. Soby, Q.C. & Alicia T. DuBois, An Overview of Pre-Nuptial Agreements in Canada, INTERNATIONAL
ACADEMY OF MATRIMONIAL LAWYERS , available at
http://www.iaml.org/library/iaml_law_journal/back_issues/volume_1/
an_overview_of_pre_nuptial_agreements_in_canada/index.html#Ref4 (Last visited on June 21, 2019).
214
Id.
215
Family Law Act, R.S.O. 1990, c.F3, §52 (Canada).
216 Family Law Act, SBC-2011, Ch.25, §93 (Canada).
217
Family Property Act, S.S. 1997, Ch. F-6.3, §24(2)(Canada).
218 Matrimonial Property Act, R.S.N.S. 1989, Ch. 275, §29 (Canada).
219 Marital Property Act, S.N.B. 1980, Ch. M-1.1, §41 (Canada).
220
Family Law Act, R.S.O. 1990, Ch. F.3., §56(4)(Canada).
221
Hartshorne v. Hartshorne, (2004) 236 DLR 193 (4th)(S.C.C.).
222 Family Relations Act, RSBC 1996, §§56, 61, 64 (Canada).
223
Id., §65.
224 Miglin v. Miglin, [2003] 1 SCR 303 : 2003 SCC 24 (S.C.C.).
225 Id., ¶46.
226
Id., ¶78.
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227 Id., ¶¶79-90.

228 N. (D.K.) v. O. (MJ.), (2003) 41 RFL 142 (5th)(B.C. C.A.).
229
Rooney v. Rooney, (2003) 230 Nfld. & P.E.I.R. 183.
230 Loy v. Loy, (2007) CarswellOnt 7123.
231 Miglin v. Miglin, [2003] 1 SCR 303 : 2003 SCC 24 (S.C.C.).
232
Hartshorne v. Hartshorne, (2004) 236 DLR 193 (4th)(S.C.C.).
233 Rosen v. Rosen, (1994) 3 R.F.L. 267 (4th)(Ont. C.A.).
234
LeVan v. LeVan, (2006) 82 O.R. (3d) 1 (Ont. S.C.J.).
235
Mastalerz v. Mastalerz, 2007 ABQB 416 (Alta. Q.B.).
236 Family Law Act, SBC 2011, c. 25 (Canada).
237
Pamela D' Mello, Uniform Civil Code : Goa Shows the Way, INDIA LEGAL, Panaji, November 3, 2016, available at
http://www.indialegallive.com/cover-story-articles/il-feature-news/goa-leading-by-example-15447 (Last visited
on June 18, 2019).
238
Marriage Law of the People's Republic of China, 2001, Art. 19 (China).
239 Id.
240 Guo Ka, Calling it quits : Divorce rate jumps 6%, CHINA DAILY , July 12, 2016, available at
http://www.chinadaily.com.cn/china/2016-07/12/content_26055052.htm (Last visited on June 18, 2019).
241 Coco Liu, What's stopping the Chinese from saying ‘I do’ to a Prenup?, October 21, 2017, available at
http://www.scmp.com/week-asia/society/article/2116319/whats-stopping-chinese-saying-i-do-prenup (Last
242 Cheng Yingqi, Survey : Chinese reluctant about prenups, CHINA DAILY , May 12, 2011, available at
http://www.chinadaily.com.cn/china/2011-05/12/content_12493357.htm (Last visited on June 23, 2019).
243 The Common Property under China Marriage Law, HG LEGAL RESOURCES , available at
https : //www.hg.org/legal-articles/the-common-property-under-china-marriage-law-18614 (Last visited on June
18, 2019).
244 LIU, supra note 241.
245 Supreme People's Court, Interpretation (III) of the Supreme People's Court of Several Issues on the
Application of the Marriage Law of the People's Republic of China, August 2011; Qiao Hong, New Interpretation
of Chinese Marriage Law sparks loud debate, 17(6) CONFUCIUS INSTITUTE MAGAZINE (2011), available at
http://confuciusmag.com/new-chinese-marriage-law-sparks-loud-debate (Last visited on June 21, 2019).
246 Frank Zhao, Chinese Women Still Outworking Men at Home, WOMEN OF CHINA, available at
http://www.womenofchina.cn/womenofchina/html1/survey/1411/2106-1.htm (Last visited on June 14, 2019).
247Tania Branigan, For richer, for poorer : how China's laws put women second, T HE GUARDIAN , February 24,
2015, available at https : //www.theguardian.com/world/2015/feb/24/chinese-women-equality-laws-land-
housing (Last visited on June 19, 2019).
248See also Wen Jing Deng, Why women own less housing assets in China? The role of intergenerational
transfers, 34(1) JOURNAL OF HOUSING AND THE BUILT ENVIRONMENT 1-22 (2019).
249 Matrimonial Proceedings and Property Ordinance, Cap. 192, July 1, 1972, available at
https : //www.elegislation.gov.hk/hk/cap192!en (Last visited on June 21, 2019)(China).
250 Chronology : Timeline of 156 years of British rule in Hong Kong, REUTERS , June 28, 2007, available at
https : //www.reuters.com/article/us-hongkong-anniversary-history/chronology -timeline-of-156-years-of-british
-rule-in-hong-kong-idUSSP27479920070627 (Last visited on June 17, 2019).
251 LKW v. DD, (2010) 13 HKCFAR 537.
252 White v. White, [2001] 1 A.C. 596.
253 SPH v. SA, (2014) FACV 22/2013.
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255 Zhang Xian Chu, Prenuptial Agreements in China, INTERNATIONAL ACADEMY OF F AMILY LAWYERS , available at
https : //www.iafl.com/library/iaml_law_journal/back_issues/volume_1/prenuptial_agreements_in_china/index.html
256 Harvard Divinity School, Islam in Turkey, RELIGIOUS LITERACY PROJECT , available at
https : //rlp.hds.harvard.edu/faq/islam-turkey (Last visited on June 18, 2019).
257Bureau of Democracy, Human Rights and Labor, 2014 Report on International Religious Freedom, Turkey,
October 14, 2015, available at https : //www.state.gov/j/drl/rls/irf/2014/eur/238442.htm (Last visited on June
17, 2019).
258Bureau of Democracy, Human Rights and Labor, U.S. Department of State, Turkey— International Religious
Freedom Report 2004, available at https : //www.state.gov/j/drl/rls/irf/2004/35489.htm (Last visited on June
20, 2019).
259 Mert Yelcin, Turkish Family Law : Court System & Jurisdiction, MONDAQ , July 26, 2018, available at
http://www.mondaq.com/turkey/x/722614/divorce/Turkish+Family+Law+Court+System+Jurisdiction (Last visited
on June 18, 2019).
260Z.D. Tarman & B. Başoğlu, Matrimonial property regime in Turkey, 3 BUITENLANDS IPR/FOREIGN PIL 357-363
(2014).
261 Id.
262 Turkish Civil Code, Law No. 4721, O.G. No. 24607, 8 December 2001, Art. 202 (Turkey).
263
Id., Art. 219.
264 Id., Art. 205.
265 Onur Alper & Irem Bulut, Freedom of Contract, available at
http://www.goksusafiisik.av.tr/Articletter/2011_Fall/GSI_Articletter_2011_Fall_Article1.pdf (Last visited on June
19, 2019).
266 Turkish Civil Code, Art. 203 (Turkey).
267 Tarman, supra note 260.
268M. Dural et al, Turkish Private Law, Family Law, Vol. III, 10 (2005); Ş. Şipka, The Property Regime of
Participation in Acquisitions and Issues Related to its Application, 20 (2011).
269 DURAL, Id., 305; SIPKA, Id., 35.

270 See Oldham, supra note 190.
271F. Acar, The Family Home-Property Regime-The Legal Distributive Share of the Spouse 309 (2012); DURAL,
supra note 268, 418.
272 Mary Lou O' Neil & Sule Toktas, Women's Property Rights in Turkey, 15(1) TURKISH STUDIES 29-44 (2004).
273 ACAR, supra note 271, 333; DURAL, supra note 269, 426.
274 Turkish Civil Code, Art. 277 (Turkey).
275 DURAL, supra note 269, 301; SIPKA, supra note 269, 19.
276
Leong Wai Kum, The Law in Singapore on Rights and Responsibilities in Marital Agreements, 10 SING JLS 108
(2010).
277 Brian Bix, Private Ordering and Family Law, 23 J AM ACAD MATRIMONIAL LAW 251 (2010).
278See Elizabeth Brake, Marriage and Domestic Partnership, STANFORD ENCYCLOPEDIA OF PHILOSOPHY , July 11,
2009, available at https : //plato.stanford.edu/entries/marriage/ (Last visited on June 16, 2019).
Gillian Hamilton, Property Rights and Transaction Costs in Marriage : Evidence from Prenuptial Contracts, 59
279
THE JOURNAL OF ECONOMIC HISTORY, 76 (1999).

280 Id., 14.
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281 Radmacher v. Granatino, (2010) UKSC 42, ¶52.

282
See Brigitte Clark, Should Greater Prominence Be Given to Pre-Nuptial Contracts in the Law of Ancillary
Relief?, 16(4) CHILD AND FAMILY LAW QUARTERLY 399 (2004), 400.
283
Richard Todd, The Inevitable Triumph of the Ante-Nuptial Contract, 36(7) FAM LAW 545 (2006).
284 Jeremy D. Morley, Enforceable Pre-nuptial Agreements : Their Time Has Come, 36(4) FAM LAW 770 (2006).
285 Id.
286 Robert Leckey, Relational Contract and Other Models of Marriage, 40 OSGOODE HALL LAW JOURNAL 7 (2002).
287Allison A. Marston, Planning for Love : The Politics of Prenuptial Agreements, 49 STANFORD LAW REVIEW 887
(1997).
288See Ajmal Azam, Prenup ruling could lead to exploitation of vulnerable, T HE GUARDIAN , October 20, 2010,
available at https : //www.theguardian.com/law/2010/oct/20/radmacher-prenup-ruling-analysis (Last visited on
June 17, 2019).
289Gopika Solanki, The Campaign Around Nikahnama : Reforms from Within in ADJUDICATION IN RELIGIOUS F AMILY
LAWS : CULTURAL ACCOMMODATION, LEGAL PLURALISM , AND GENDER EQUALITY IN INDIA 136 (1st ed., 2011).
290 Uzma Naheed, Nikahnama : a problem or solution?, T HE MILLI GAZETTE, May 31, 2005, available at
http://www.milligazette.com/Archives/2005/16-31May05-Print-Edition/163105200564.htm (Last visited on June
22, 2019).
291 Audrey D'Mello, The sacrament of pre-nups, T HE DECCAN HERALD, December 7, 2015, available at
http://www.deccanchronicle.com/151207/commentary-op-ed/article/sacrament-prenups (Last visited on June
22, 2019).
292Farhat J. Ziadeh, Equality (Kafa'ah) in the Muslim Law of Marriage, 6 THE AMERICAN JOURNAL OF
COMPARATIVE LAW 509 (1957).
293
Id., 510.
294A. Suneetha, Muslim Women and Marriage Law : Debating the Model Nikahnama, 47(43) ECONOMIC &
POLITICAL WEEKLY 41 (October 27, 2012).
295
Nahal Toosi, Marriage Contract a Tool for Muslim women's rights, T HE LOWELL SUN, August 26, 2006, available
at http://www.lowellsun.com/religion/ci_4243218 (Last visited on June 23, 2019).
296
Hadia Mubarak, Muslim Marriage Contracts : Female Agency and Autonomy, BERKLEY F ORUM , December 3,
2014, available at https : //berkleycenter.georgetown.edu/forum/muslim-marriage-contracts-female-agency-and
-autonomy (Last visited on June 22, 2019).
297 Syed Ameer Ali, MOHAMMEDAN LAW , Vol. II 405 (5th ed. 1988).
298
Muhammad Munir, Stipulations in a Muslim Marriage Contract with Special Reference to Talaq Al-Tafwid
Provisions in Pakistan, 12 Y.B. ISLAMIC & MIDDLE E. L. 235 (2005-2006).
299
Id., 237, 238.
300
Shamreeza Riaz, Shariah Perspective on Marriage Contract and Practice in Contemporary Muslim Societies, 3
(3) INTERNATIONAL JOURNAL OF SOCIAL SCIENCE AND HUMANITY (May 2013).
301Nida Kirmani, Re-thinking the Promotion of Women's Rights through Islam in India, 42(1) IDS BULLETIN 56
(2011); Nida Kirmani & Isabel Philips, Engaging with Islam to promote women's rights : exploring opportunities
and challenging assumptions, 11(2) PROGRESS IN DEVELOPMENT STUDIES, 87 (2011).
302
PTI, Model Nikahnama Unveiled, The Times of India (May 1, 2005).
303
Farzand Ahmed, Triple Failure, India Today (December 11, 2006).
304
PTI, Muslim Women Personal Law Board unveils new ‘nikahnama’, The Hindu (March 17, 2008).
305
The model nikahnama has captured the attention of Islamic jurists once again in light of the judgment of the
Supreme Court in Shayara Bano v. Union of India, (2017) 9 SCC 1. Significantly both the All India Muslim Women
Personal Law Board and the All India Muslim Personal Law Board have submitted their new versions of a model
nikahnama. Debayan Roy, PM Modi Receives Model Nikahnama, AIMWPLB Requests for Aadhaar Link, NEWS 18,
-----------------------------------------------------------------------------------------------------------------------------------------------------------
August 12, 2017; PTI, Model nikahnama to be modified to deter Muslims from giving triple talaq : AIMPLB, India
Today, February 3, 2018.
306 PTI, supra note 304.
307 Id.
308
PTI, supra note 302.
309 In relation to stipulations that a Muslim wife can provide in the matrimonial agreement, Ameer Ali suggests
clauses stating that the couple shall live at a specified place and the husband shall not attempt to move the
wife out of their conjugal home without her consent. Ali further suggests that other conditions which may be
included in the marital contract could cover the obligation of the husband to pay a fixed maintenance to his wife
or the obligation to maintain the children of the wife from a previous marriage.
310Md. Zafar Mahfooz Nomani, Impact of Indian Secular Laws on Islamic Law of Marriages in Regard to Marital
and Conjugal Rights, Dower and Maintenance : A Reformative Perspective in ISSUES IN WOMEN'S RIGHTS : A
PRACTITIONER 'S RESOURCE BO O K 270 (K.M. Baharul Islam, 1st ed., 2014).
311
ABU Ameenah Bilaal Philips & Jameelah. Jones, POLYGAMY IN ISLAM, (2nd ed., 2005).
312Qazis : A Muslim male is allowed four wives, The Times of India, April 6, 2010. Cf. Rishi Iyenger, Indian Court
Says Muslims Are ‘Misusing’ the Quran for Polygamy, T IME, November 6, 2015.
313 PTI, Declare polygamy in Islam illegal, The Hindu, March 15, 2018.
314
Rohan Venkataramakrishnan, Muslim women and the surprising facts about polygamy in India, Scroll.In, July
8, 2014, available at https : //scroll.in/article/669083/muslim-women-and-the-surprising-facts-about-polygamy-
in-india (Last visited on June 23, 2019).
315
Khursheed Ahmad Khan v. State of U.P., (2015) 8 SCC 439.
316
Begum Subanu v. A.M. Abdul Gafoor, (1987) 2 SCC 285.
317
Id.
318
United Nations Entity for Gender Equality and the Empowerment of Women, General Recommendation No. 21
(13th session, 1994), Equality in marriage and family relations, available at
http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm (Last visited on June 23, 2019).
319Flavia Agnes, Half measure : Triple talaq forbidding marriage contract may not do Muslim women much
good, Scroll.In, May 28, 2017, available at https : //scroll.in/article/838518/half-measure-triple-talaq-forbidding
-marriage-contract-may-not-do-muslim-women-much-good (Last visited on June 19, 2019).
320
Id.
321 Anupama Katakam, The divorce debate, 21(18) FRONTLINE (Aug-Sept 2004).
322See also Maaike Voorhoeve, Divorce. Historical Practice in THE OXFORD ENCYCLOPEDIA OF ISLAM AND WOMEN
(Natana J. DeLong-Bas ed., 2013)
323
Tafwid in OXFORD DICTIONARY OF ISLAM 310 (John L. Esposito ed., 2003).
324 Nidhi Khare & Radhika Singh, Halala Nikah : Marriage Against the Dignity of Muslim Women? A Critical Analysis
in Light of the Indian Legal Scenario, 4(1) HUMAN RIGHTS INTERNATIONAL RESEARCH JOURNAL (2016).
325 Shayara Bano v. Union of India, (2017) 9 SCC 1.
326
See Id.
327Radhika Iyengar, What is Nikah halala, how it was established and where it stands in modern India, The Indian
Express, March 26, 2018, available at http://indianexpress.com/article/what-is/what-is -nikah-halala-how-it-was
-established-and-where-it-stands-in-modern-india-triple-talaq-4618415/ (Last visited on June 23, 2019).
328Sushant Pathak & Jamshed Adil Khan, Exposed : How maulvis take money for one-night stand with divorced
women trying to save marriage, India Today, August 16, 2017, available at
http://indiatoday.intoday.in/story/nikah-halala-islamic-scholars -one-night-stand-divorced-muslim-women-
marriage/1/1027212.html (Last visited on June 23, 2019).
329
See Parbina Purkayastha, Muslim law board endorses nikah halala, says it is quranic practice and cannot be
-----------------------------------------------------------------------------------------------------------------------------------------------------------
challenged, India Today, July 15, 2018.

330 Nilofar Ahmed, The importance of ‘mehr’, DAWN, June 14, 2012, available at
https : //www.dawn.com/news/726611 (Last visited on June 23, 2019).
331 Rakesh Kumar Singh, Law of Dower (MAHR) In India, T EXTBOOK ON MUSLIM LAW (2011).
Flavia Agnes, Economic Rights of Women in Islamic Law, 31(41/42) ECONOMIC AND POLITICAL WEEKLY 2832-
332
2838 (October 12-19, 1996).

333 Rakesh Kumar Singh, Law of Dower (Mahr) in India, 12 (1) JOURNAL OF ISLAMIC LAW AND CULTURE (2010).
See Nisar Ahmad Ganai, Non-Maintenance of a Muslim Wife as a Ground for Divorce, 9 COCHIN UNIVERSITY
334
LAW REVIEW (1981).

335
See Kusum, Maintenance of a Divorced Muslim Wife : A Critique of the Proposed Law, 22(3) JOURNAL OF THE
INDIAN LAW INSTITUTE, 408 (July-September 1980).
336C.f. Lindsey E. Blenkhorn, Islamic Marriage Contracts in American Courts : Interpreting Mahr Agreements as
Prenuptuals and their Effect on Muslim Women, 76(1) SOUTHERN CALIFORNIA LAW REVIEW 199 (November
2002).
337See Heather Jacobson, The Marriage Dower : Essential Guarantor of Women's Rights in the West Bank and
Gaza Strip, 10(1) MICHIGAN JOURNAL OF GENDER AND LAW (2003).
338
Tarannum Siddiqui, Maintenance Rights in Muslim Personal Law, 2(3) INTERNATIONAL JOURNAL OF
HUMANITIES & SOCIAL SCIENCE STUDIES 161 (November 2015).
339 See also Ajay Kumar, The gathering storm, India Today, March 31, 1986, available at
http://indiatoday.intoday.in/story/muslim-women-protection -of-rights-on-divorce-bill-raises-too-many-
shackles/1/348308.html (Last visited on June 23, 2019).
340
Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556 : (1985) 3 SCR 844.
341 The Shah Bano Legacy, The Hindu, August 10, 2003, available at
http://www.thehindu.com/2003/08/10/stories/2003081000221500.htm (Last visited on June 23, 2019).
342 Danial Latifi v. Union of India, (2001) 7 SCC 740.
343 Id.
344Naz Tooabally, Does the Use of Mut'ah Marriage Make Purchasing Sex Halal for Muslims?, April 24, 2015,
available at http://thewip.net/2015/04/24/does-the-use-of -mutah-marriage-make-purchasing-sex-halal-for-
muslims/ (Last visited on June 23, 2019).
345Deeba Abedi, Temporary Marriages in Islam Should Be Prohibited, HUFFINGTON POST , January 30, 2017,
available at http://www.huffingtonpost.in/deeba-abedi/temporary -marriages-in-islam-should-be-
prohibited_a_21659016/ (Last visited on June 23, 2019).
346Deeba Abedi, A Marriage Fit for Men : Islam's ‘Temporary Nikahs’ That Hurt Women, T HE QUINT , January 13,
2017, available at https : //www.thequint.com/voices/blogs/mikah -mutah-and-nikah-misyar-are-temporary-
marriages-in-islam-that-benefit-the-man-but-not-really-the-woman (Last visited on June 23, 2019).
347Haider, Nikah Mut'ah : Temporary marriage in Islam is not prostitution, instead, it is freedom to both men &
women, Meri News, April 26, 2017, available at http://www.merinews.com/article/nikah-mutah-temporary-
marriage -in-islam-is-not-prostitution-instead-it-is-freedom-to-both-men--women/15924635.shtml (Last visited
on June 23, 2019).
348 Haider, Nikah Mut'ah : Temporary marriage in Islam—Part I, Meri News, May 7, 2017, available at
http://www.merinews.com/article/nikah-mutah-temporary-marriage-in-islam---part-i/15924854.shtml (Last
349 Nadya Labi, Married for a Minute, MOTHER JONES (April 2010), available at
http://www.motherjones.com/politics/2010/03/temporary-marriage-iran-islam/ (Last visited on June 23, 2019).
350Shabnam Mahmood & Catrin Nye, I do… for now. UK Muslims revive temporary marriages, BBC, May 13,
2013, available at http://www.bbc.com/news/uk-22354201 (Last visited on June 23, 2019).
351Vijender Kumar, Irretrievable Breakdown of Marriage : Right of a Married Couple, 5(1) NALSAR LAW REVIEW
(2010).
-----------------------------------------------------------------------------------------------------------------------------------------------------------
352
Id.
353 Law Commission of India, The Hindu Marriage Act, 1955—Irretrievable Breakdown of Marriage as a Ground of
Divorce, Report No. 71 (1978); Law Commission of India, Irretrievable Breakdown of Marriage - Another Ground
for Divorce, Report No. 217 (2009).
354Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511; Jorden Diengdeh v. S.S. Chopra, (1985) 3 SCC 62 : AIR 1985
SC 935; Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558 : AIR 2006 SC 1675.
355Women from other religions in India are restricted from incorporating such a clause in their prenuptial
agreement due to the fact that such a no-fault ground is unavailable to them under their respective personal
laws and such a clause would defeat the legislative intent of the provisions of the respective personal laws
exhaustively delineating grounds for divorce.
356Majlis Legal Centre, Irretrievable Breakdown of Marriage—Economic Safeguards for Women on Divorce, March
28, 2011, available at http://majlislaw.com/file/Majlis_IBM_Report_General.pdf (Last visited on June 23, 2019).
357 Shakila Banu v. Gulam Mustafa, 1970 SCC OnLine Bom 31 : AIR 1971 Bom 166.
358
Moonshee Buzloor Ruheem v. Shumsoonnissa Begum, (1867) 11 Moo IA 551.
359Gaurav Mehta, Restitution of Conjugal Rights in MUSLIM LAW , UNIVERSAL'S MASTER GUIDE TO JUDICIAL SERVICE
EXAMINATION (2010).
360 Abdul Kadir v. Salima, 1886 SCC OnLine All 3 : ILR (1886) 8 All 149.
361
Mohd. Amjad v. Sarah, ML No. 11/10, decided on 30-5-2011 (Del).
362
Anis Begum v. Malik Muhammad Istafa Wali Khan, ILR (1933) 55 All 743.
363Gautam Bhatia, The Constitution and the Public/Private Divide : T. Sareetha v. Venkatasubbaiah, SSRN, July
30, 2017, available at https : //ssrn.com/abstract=3010972 (Last visited on June 23, 2019).
364Talaq-I-Tafwid : The Muslim Woman's Contractual Access to Divorce : An Information Kit (Lucy Carroll &
Harsh Kapoor ed., 1996).
365 Suneetha, supra note 294, 45.
366 Suroj Mia v. Abdul Majid, 1953 SCC OnLine Tri 5 : 1953 Cri LJ 1504.
367Sufia Khanam, Talaq-I-Tafwid and its Application in Context of Bangladesh : An Analytical Approach, 21(7-V)
IOSR JOURNAL OF HUMANITIES AND SOCIAL SCIENCE 34 (July 2016).
368
Sainuddin v. Latifannessa Bibi, 1918 SCC OnLine Cal 63 : ILR (1919) 46 Cal 141.
369 Id.
370 Badarannissa Bibi v. Mafiattala, (1871) 7 Beng LR 442.
371 See Mahammad Amin v. Aimna Bibi, 1930 SCC OnLine Lah 456 : AIR 1931 Lah 134.
372 See Flavia Agnes, Contrast ‘pre-nups’ with a conditional ‘nikahnama', T HE ASIAN AGE, August 28, 2018.
373 The usage of the term Hindu in this context is meant to encompass Buddhist, Jain and Sikh communities also.
374Although such an assertion can be made in relation to Christian couples, in light of Divorce Act, 1869, §40
(India).
375Maria Fatima & M. Asir Ajmal, Happy Marriage : A Qualitative study, 10(1) PAKISTAN JOURNAL OF SOCIAL AND
CLINICAL PSYCHOLOGY, 37-42 (2012).
376 Aarefa Johari, Is India really ready for prenuptial agreements, ask divorce lawyers, Scroll.In, November 20,
2015, available at https : //scroll.in/article/770445/is-india-really-ready-for -prenuptial-agreements-ask-divorce-
lawyers (Last visited on June 23, 2019); Tushar Gupta, Three States of Marriage : Time For Urban India To
Debate Prenuptial Agreements, SWARAJYA , March 3, 2018, available at https : //swarajyamag.com/culture/three-
states-of-marriage-time-for -urban-india-to-debate-prenuptial-agreements (Last visited on June 23, 2019);
Poonam Agarwal, ‘Prenup’ Vital to Safeguard Women's Interests : MWCD, T HE QUINT , April 13, 2016, available at
https : //www.thequint.com/news/india/exclusive-or -prenup-vital-to-safeguard-womens-interests-mwcd (Last
-----------------------------------------------------------------------------------------------------------------------------------------------------------
377Betsey Stevenson, The Impact of Divorce Laws on Marriage-Specific Capital, 25 JOURNAL OF LABOUR
ECONOMICS 75-94 (2007).
378See T.H. Lyngstad et al, Pooling of economic resources : A comparison of Norwegian married and cohabiting
couples, 27(5) EUROPEAN SOCIOLOGICAL REVIEW 624-635 (2011).
379
See Yangtao Huang et al, To pool or not to pool? Trends and predictors of banking arrangements within
Australian couples, 14(4) PLoS ONE (2019), available at https : //journals.plos.org/plosone/article?
id=10.1371/journal.pone.0214019#pone.0214019.ref001 (Last visited on June 23, 2019).
380See also Should couples jointly own property?, PUNCH , July 2, 2017, available at https : //punchng.com/should
-couples-jointly-own-property/ (June 23, 2019).
381
Alessandra Voena, Divorce laws and the economic behavior of married couples, MICROECONOMIC INSIGHTS,
February 18, 2018, available at http://microeconomicinsights.org/divorce-laws-and-the-economic-behavior-of-
married-couples/ (Last visited on June 22, 2019).
382
See Libby Kane, Here's What Happens to Your Stuff When You Get Divorced without a Prenup, BUSINESS
INSIDER, August 13, 2014, available at https : //www.businessinsider.in/Heres-What -Happens-To-Your-Stuff-
When-You-Get-Divorced-Without-A-Prenup/articleshow/40133340.cms (Last visited on June 23, 2019).
383
Gabriel Cheong, Prenup Format for Couples who want their Finances Kept Separate, INFINITY LAW GR O U P ,
MARCH 9, 2018, available at https : //www.infinlaw.com/faq/prenup-format-couples-want-finances-kept-
separate/ (Last visited on June 22, 2019).
384See Denise Erlich, 5 ways separate property can become marital property, ERLICH LAW OFFICE LLC, available
at https : //erlichlegal.com/blog/5-ways-separate-property-can-become-marital-property/ (Last visited on June
23, 2019).
385 See What Does A Prenup Cover?, OGBORNE LAW , available at https : //ogbornelaw.com/prenup-cover/ (Last
386See Erin Lowrey, Why You Should Get a Prenup Even If You're Young and Broke, MONEY, June 2, 2017,
available at https : //money.com/prenups-what-to-include/ (Last visited on June 22, 2019).
387
See Liz Weston, You're Married, but Your Assets Don't Have to Be, NERD WALLET, February 15, 2018, available
at https : //www.nerdwallet.com/blog/finance/protect-assets-without-prenuptial-agreement/ (Last visited on
June 22, 2019).
388Pre-nuptial Agreement Clauses to Address Estate Planning, available at https : //images.template.net/wp-
content/uploads/2016/03/22101549/Pre-Nuptial-Agreement-Clauses-to-Estate-Planning.pdf (Last visited on June
22, 2019).
389See also Cindy Tran, ‘If he doesn't sign it, the relationship will end' : Divorce lawyer, 39, prepares a prenup
that includes her shoes, towels, Tupperware and even Superman memorabilia, The Daily Mail, September 12,
2018, available at https : //www.dailymail.co.uk/femail/article-6157529/Divorce-lawyer-Fidan -Shevket-drafts-
prenuptial-agreement-Tupperware-designer-shoes.html (Last visited on June 22, 2019).
390 Scot Cohn, Here's how to bulletproof your prenuptial agreement, CNBC, March 9, 2018, available at
https : //www.cnbc.com/2018/03/09/the-american-greed-report -heres-how-to-bulletproof-your-prenuptial-
agreement.html (Last visited on June 22, 2019).
391 Prenuptial Agreements : Full & Fair Disclosure of Assets, JD Supra, April 8, 2019, available at
https : //www.jdsupracom/legalnews/prenuptial-agreements-full-fair-40088/ (Last visited on June 22, 2019).
392 Kelli B. Grant, Jeff Bezos didn't have a prenup. But maybe you should, CNBC, January 10, 2019, available at
https : //www.cnbc.com/2019/01/10/bezos -divorce-highlights-usefulness-of-prenuptial-agreements.html (Last
393
Jason Marks, Prenups : Not Just for the Wealthy, HUFFINGTON POST , April 25, 2013, available at
https : //www.huffingtonpost.com/jason-marks/prenups -not-just-for-the-_b_3119074.html (Last visited on
June 23, 2019).
394Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413; Aveek Jayant, Child custody law in India : a litigant
perspective, The Hindu, February 2, 2013, available at http://www.thehindu.com/opinion/op-ed/child-custody-
law-in-india -a-litigant-perspective/article4371934.ece (Last visited on June 23, 2019).
395 Social and lifestyle clauses in prenups, CLEMENT LAW CENTER, available at
https : //www.clementlawcenter.com/blog/2018/10/social-and -lifestyle-clauses-in-prenups.shtml (Last visited
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on June 22, 2019).

396
See Justine Borer, Prenuptial Agreements : The Ultimate Symbol of Love?, HUFFINGTON POST , August 22, 2013,
available at https : //www.huffingtonpost.com/justine-borer/prenuptial-agreements-the_1_b_5698389.html (Last
397
Law Rato, Band, Baaja & Prenup : Everything You Need to Know About a Prenup Agreement, T HE BETTER INDIA,
February 15, 2018, available at https : //www.thebetterindia.com/131143/prenup-agreement-marriage-divorce/
(Last visited on June22, 2019).
398Under Hindu Marriage Act, 1955, §9 (India), an order for restitution of conjugal rights may be passed by the
court if one spouse has withdrawn from the society of the other without reasonable excuse.
399
See Jennifer M. Riemer & Peter M. Walzer, Premarital Agreements for Seniors, available at
https : //www.walzermelcher.com/wp-content/uploads/2017/04/3winter17_riemer.pdf (Last visited on June 22,
2019).
400
See Prenuptial Agreements in Massachusetts, available at
https : //www.divorcenet.com/states/massachusetts/prenuptial_agreements_and_alimony_waivers (Last visited
on June 22, 2019).
401
See Regulating the Marriage in DRAFTING PRENUPTIAL AGREEMENTS, IV-15 (Gary N. Skoloff et al, ed., 2019).
402
See Vicki Viramontes-LaFree, Premarital Agreements, the Older Couple and Health-Care Expenses, Pasternak
& Fidis, available at https : //www.pasternakfidis.com/premarital-agreements-the -older-couple-and-health-care
-expenses/ (Last visited on June 22, 2019).
403 See Michelle Kaminsky, The Big Dilemma : Saying “I Do” with a Prenup, LEGAL ZO O M , available at
https : //www.legalzoom.com/articles/the-big -dilemma-saying-i-do-with-a-prenup (Last visited on June 22,
2019).
404Van A. Larson PC, Lifestyle Clauses Becoming More Popular in Prenuptial Agreements, May 31, 2014, available
at http://www.vanlarsonlaw.com/kane-county-attorney/2014/05/31/ lifestyle-clauses-becoming-popular-
prenuptial-agreements/ (Last visited on June 23, 2019).
405
Some offbeat prenuptial agreements between celebrity couples, LANGLOIS F AMILY LAW APC, December 28,
2017, available at https : //www.langloisfamilylaw.com/blog/2017/12/some-offbeat-prenuptial -agreements-
between-celebrity-couples.shtml (Last visited on June 23, 2019).
406 See Elizabeth R. Feeney, Lifestyle Clauses and Prenuptial Agreements, MAVRIDES LAW , available at
https : //mavrideslaw.com/lifestyle-clauses-prenuptial-agreements/ (Last visited on June 23, 2019).
407 Back to Basics : Common Prenuptial Agreement Provisions, HELLO PRENUP , available at
https : //www.helloprenup.com/prenuptial-agreements/common-prenup-provisions/ (Last visited on June 22,
2019).
408
Angela McIlveen, Pets—A New Reason To Consider A Prenuptial Agreement, MCILVEEN F AMILY LAW F IRM ,
available at https : //www.mcilveenfamilylaw.com/prenuptialandpets/ (Last visited on June 22, 2019).
409Monica Mizzi, Should You Add a “Lifestyle Clause” To Your Prenup? (Or Are They Just For Celebrities?),
HUFFPOST , June 22, 2016, available at https : //www.huffpost.com/entry/should-you-add-a-lifestyle -clause-to-
your-prenup_b_57908891e4b0a9208b5f1876 (Last visited on June 22, 2019).
410Barry Finkel, Infidelity Clauses : Protecting Marriage with Fear of Financial Fall-Out, HUFFINGTON POST , March
26, 2013, available at https : //www.huffingtonpost.com/barry-finkel/infidelity-clauses-protec_b_2903812.html
411
Scott J. Adler, Lifestyle Clauses in Prenuptial Agreements, available at http://unhappymarriage.info/lifestyle-
clauses-prenuptial-agreements/ (Last visited on June 23, 2019).
Deborah Hope Wayne, Social Media & Marriage : Do We Need a Social Media Clause in our Prenup?, F AMILY LAW
412
MATTERS BLOG , July 25, 2017, available at https : //www.familylawmatters-blog.com/2017/07/social-media -

marriage-need-social-media-clause-prenup.html (Last visited on June 23, 2019).
413 See Zimmerman v. Zimmerman, 579 N.W. 2d 591 : 1998 ND 116 (1998).
414
Steve Fritsch, The Prenuptial Agreement Sunset Clause, February 6, 2017, available at
https : //www.oceansidedivorcelawfirm.com/prenup/sunset-clause/ (Last visited on June 23, 2019).
415
See Jonathan W. Wolfe & Thomas J. DeCataldo Jr., Unchartered Territory of Amending Prenuptial
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Agreements, NEW JERSEY F AMILY LAWYER , available at https : //www.skoloffwolfe.com/files/2015-02-unchartered-

territory -of-amending-prenuptial-agreement.pdf (Last visited on June 23, 2019).
416Margaret Ryznar and Anna Stepien-Sporek, To Have and to Hold, for Richer or Richer : Premarital
Agreements in the Comparative Context, 13 CHAP I. REV 27 (2009-10).
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/
rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The
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Page 1 Saturday, October 28, 2023

(2019) 12 NUJS L Rev 217

Prenuptial Agreements in India : An Analysis of Law and Society

PRENUPTIAL AGREEMENTS IN INDIA : AN ANALYSIS OF LAW AND SOCIETY

III. Addressing Resistance to Prenuptial Agreements 235

IV. The Status of Prenuptial Agreements : A Global Overview 241

in independence of women3 can also be viewed as responsible for the rising

II. AN OVERVIEW OF PRENUPTIAL AGREEMENTS IN INDIA

Modernisation, educational and financial empowerment of women alongside

A. THE PUBLIC POLICY VIEW OF PRENUPTIAL AGREEMENTS

Given the resistance towards accepting prenuptial agreements, particularly due to

So also, a prenuptial agreement providing for payment of a fixed amount of money

In another instance, a prenuptial agreement providing for separate maintenance for

concerned with Mohammedan personal law, in an attempt to discern possible patterns

1. Prenuptial agreements in Hindu marriages

future separation is contrary to the public policy and therefore, invalid.57

b. Valid prenuptial agreements

In this context, a brief discussion of Sandhya Chatterjee v. Salil Chandra

A review of the aforementioned cases indicates that public policy concerns in

C. PRENUPTIAL AGREEMENTS IN OTHER COMMUNITIES IN INDIA

D. PUBLIC RECEPTION TOWARDS PRENUPTIAL AGREEMENTS

In spite of this, an increasing number of couples belonging to affluent socio-

III. ADDRESSING RESISTANCE TO PRENUPTIAL AGREEMENTS

prevention tools instead of ‘marriage breaking instruments’. Indeed, prenuptial

B. ON THE POTENTIAL OF MISUSE OF EMOTIONAL AFFINITY

divorce proceedings—that is agreed upon by spouses by means of prenuptial

C. ON THE POSSIBILITY OF EXPLOITATION OF VULNERABLE WOMEN

With respect to the potential of using prenuptial agreements as an instrument for

agreements, regardless of whether they were accepted voluntarily or under duress.

of such agreements cannot be said to be established uniformly on a global basis.

In this exercise, discussion is undertaken of the present status of prenuptial

Eventually, in the late 1920s, more specifically, in the judgment in Hyman v.

in relation to prenuptial agreements.151 Yet there appeared to be some regression in

Evidently, though there has been general recognition of prenuptial agreements by

prenuptial agreements as binding subject to some conditions, which is contained in

It is an accepted proposition that prenuptial agreements originating out of marital

As in India, for a prenuptial agreement to be valid in the United States, it should

such agreements, as factors to be taken into account on divorce, such as while

D. PRENUPTIAL AGREEMENTS IN CHINA

Moreover, there is no explicit guidance on how Article 19 could be practically

under law through execution of a prenuptial agreement whereas ‘protection’ refers to

It is precisely this autonomy of individuals that is sought to be upheld by means of

mode of contract including prenuptial agreements.

While discussions regarding the legalisation of prenuptial agreements have taken

It is important in this context to begin by considering how Muslim traditions

nikahnama.298 However, it is those stipulations which though beneficial for Muslim

1. Suggested clauses for a model nikahnama

Islamic tenets to justify their multiple marriages.314 It is important to note however,

Additionally, according to her financial and social considerations, a prospective wife

exploited as a result of this abhorrent practice, it is suggested that Muslim women

c. Clause determining and guaranteeing mehr in addition to maintenance

d. Determination of maintenance payable after iddat period

f. Delineating irretrievable breakdown of marriage as a ground for divorce

Irretrievable breakdown of marriage refers to a situation where the marriage in

Majlis in response to a proposal to introduce irretrievable breakdown of marriage as a

g. Allowing for resisting restitution of conjugal rights under specific circumstances

reconsidered in academic discussions based on the dimensions of

B. POTENTIAL CLAUSES FOR A PAN-INDIA MODEL OF PRENUPTIAL AGREEMENT