VALIDITY OF PRE NUPTIAL AGREEMENT

A.???????????INTRODUCTION

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A prenuptial agreement or also commonly known as a prenup is a contract that a prospective bride and groom or civil union between people who intend to marry enter into. The contract may contain various terms relating to different aspects of the relationship, however, it is most widely used for the setting down agreements regarding spousal support, division of assets and property, etc. in the unfortunate event of a divorce or breakup of marriage between the two parties. Prenuptial agreements are popular in different countries of the world governed by different laws. Many consider it a smart choice today for ensuring security of a couple’s respective assets even in the event of split which are mutually agreeable.

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Pre-nuptial agreements can be called an agreement to validate the account of marriage[1]. Basically this agreement was a western concept, but now it is gaining momentum in the east as well. Prenuptial agreement, is an agreement before the marriage, entered by the parties intending to enter the union of marriage. This is done to ensure that after marriage all the assets of both the parties are divided. But the notion of pre-nup stands in-between many concepts of family law, contract law, economics, feminism, and public interest[2].

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Which otherwise would be divided by the laws of the land which bind the marriage and dictates the divorce as well. Socially, there is a negative perception over getting a prenuptial agreements. People believe that such agreements undermine the sanctity of marriage or that it is made by people who want an easy way out of marriage, are cynical or just outright mean. However, many celebrities have been on the news about having prenuptial agreements and a lot of people now find it prudent to have agreement which guarantees individual freedom and in fact a symbolism of trust between the two people who are going to get married.

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B.????????????EXISTING LEGAL POSITION

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A prenuptial agreement is between two spouses. It is essentially a settlement in writing between the two spouses which states that on death or divorce or separation what will be the financial liability of the respective spouses. In simple phrases it lays out the proportion of assets, property, and money each of them gets if the wedding is dissolved.

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It is a very popular concept in the West, where celebrity couples like Tom Cruise – Katie Holmes and Michael Douglas-Catherine Zeta have opted for pre-nuptials. Where Katie Holmes claims whooping 3 million dollars for every year the marriage survives and Catherine is entitled to receive 5 million dollars on charges of infidelity against Michael Douglas[3].?

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Prenuptial Agreement in India seems like an alien idea. Unlike western countries wherein marriage is taken to be a contract between husband and spouse, in India marriage is taken into consideration as a holy alliance of two persons for existence and for this reason, a prenuptial settlement is legally invalid under the Hindu Marriage Act in India.?

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Divorce laws in India are governed by the personal laws – Hindu Marriage Act, 1955, Indian Christian Act, 1872, etc. Provision for maintenance exists in all matrimonial laws with the only dissimilarity that under Hindu Marriage Act, either of the spouses can claim maintenance, but under others only the wife can claim maintenance. Generally, alimony is granted based on income, property of both the parties and their conduct. It may not always be possible to prevent a divorce, but a prenuptial agreement would ensure that one would get the rough end of the stick in matters of financial settlements.

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The development of prenuptial agreements in India is at its nascent stage and its current stage uncertain. There is no specific legislation governing prenuptial agreements and in the absence of it, there is a need to find its mention in other legislations. Since the subject matter is marriage, it is obvious to start from looking through the different personal laws which govern them as India also currently does not have a uniform civil code.

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(i)???????????CONTRACTUAL POSITION?

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Many countries like Canada, Italy and France have matrimonial regimes along with pre-nuptial agreements. While India does not have a specific statute governing pre-nuptial agreements,?even then if such pre-nuptial agreement were to be considered in India, it would fall under the ambit of Indian Contract Act, 1872. The Indian Contract Act under section 10[4] provides that a valid agreement is one which is made between two consenting individuals on mutually agreed upon terms, for a consideration and a lawful object.?Judicial decisions have over the years, refused to consider the validity of a prenuptial contract declaring to be against public policy and therefore a void contract under section 23[5] of the Contract Act. It must be emphasized that prenuptials are only considered to be ordinary agreements in India. Goa is the only state where prenuptial agreements are enforceable because it follows Portuguese Civil Code, 1867. Under?Special Marriage Act, 1954, if all necessary documents (under the act) required for declaration of marriage are registered at the Registrar’s office, then prenuptials can be legally binding.

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It is to be noted that since prenuptials are not enforceable in court of law, many people lose interest. But a few insist on having an agreement signed up, mostly because they do not want to jeopardise their assets.?The document may not provide for a clear division of assets but may simply be a way to pre-determine the maintenance provisions and custody decisions.?

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However, the terms and conditions in these documents must be “reasonable” enough for the courts. For example, if the agreement says that after separation the child would be in custody of only one parent and would not be allowed to meet the other, it would not be entertained in the court on the grounds of violation of public policy. Also, if a fortune 500 business tycoon’s marriage breaks down within a few months, each party would not walk away with 50% of the total estate.

In case a woman gives up her legal rights in the agreement, the court would strike off such an agreement. This is because Section 28[6] of Indian Contract act provides that an agreement in which a party gives up their right to legal remedies is void.

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Violation or breach of a prenuptial agreement which has been notarised and stamped can welcome an offence of fraud. Fraud is a ground for divorce under Section 12[7] of the Hindu Marriage Act, 1955.?

In the United States, there is a provision of the Uniform Premarital Agreement Act, which has been adopted by 27 states (until July 2018). Prenuptial agreements have no legal sanctity in India. This is because of the differences in the definition of marriage itself — marriages in the US are regarded as contracts entered into by equal parties, whereas the law in India views them primarily as a sacrament. They are also looked down upon by Indian courts because they are usually made by rich husbands, so that in case of a possible dissolution they don’t lose out on their money. The idea of a prenuptial agreement, which accepts the possibility of a separation, would thus strike at the very heart of that definition.

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(ii)?????????PRECEDENTS

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However, there have also been judgements in recent times where fair agreements have been upheld.

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(a)?????????In the landmark case of?Bhagwati Saran Singh vs. Parmeshwari Nandar Singh[8], the Allahabad High court held that marriage in addition to being a sacrament is a civil contract entered into between two parties.

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(b)?????????In the case of Thirumal Naidu v. Rajammal Alias Rajalakshmi[9], the prenuptial agreement stated that the married couple was to live separately. This went against the claim of restitution of conjugal rights. The court held that a Hindu marriage is sacramental in nature and not in the nature of a contract. Moreover, a prenuptial agreement envisaging future separations is against public policy and therefore invalid. There has been an emphasis that contractual agreements cannot override Hindu personal laws and traditions this will also amount to going against public policy. In cases where the courts have upheld the validity of terms of prenuptial contracts is mostly when it is related to property protection.

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(c)??????????In the case of Sandhya Chaterjee v. Salil Chandra[10] the Calcutta HC discussed the validity of a marital contract based on public policy as against the freedom of two individuals to enter into a contract. Ghosh and Kar make the same point in their paper and conclude that the trend till now in upholding the validity of a prenuptial contract has been with reference to other legal principles such as property law or by creating exceptions to the existing jurisprudence on the issue, not by itself[11].

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Based on the above mentioned cases, it seems that in Hindu marriages, the judiciary is only inclined to consider prenuptial agreements when it is in regards to property.

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(d)?????????Similarly, in Islam, even though marriage is in the nature of a civil contract, it has been upheld by the court that terms of contract which go against Islamic law or places unreasonable restrictions only on one of the spouses, or if the interpretation of such contracts results in the conclusion that it goes against public policy, they have been held to be invalid. In Mohammedan law the idea of pre-nuptial prevailed even before the popular westerns adopting it. As most Muslim marriages involve the negotiation of a?mahr?provision as part of a marriage contract which consists of a monetary payment from husband to wife[12], so the notion of?Mahr, under Mohammedan law, as defined by Tyabji, “Mahr?or?dower?is a sum that becomes payable by the husband to the wife on marriage, either by an agreement between the parties, or by operation of law[13]”

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(e)?????????For example, in the case of Khatum Bibi v. Rajjab[14], the court held that restricting the liberty of movement of the spouse was against public policy and also against Mohammedan law.

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(f)???????????It seems that what constitutes as public policy according to the judiciary largely depends on the religious law, tradition and practice. In that regard, in the case of Mohd Khan v. Shahmali[15], it was decided by the High Court of Jammu and Kashmir held that if the contractual terms directed for the husband to stay at the wife’s maternal home, then the husband is bound to do so as it is common culture in Kashmir valley.

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While accepting that Muslim marriages are essentially a contractual union, they are more open to accepting prenuptial agreements. However, it is still in a restrictive sense where terms of nikahnama are given a strict interpretation and anything which goes against public policy is rejected. . The question arises whether the court considers a marital agreement itself objectionable or whether it objects to the inclusion of certain provisions which it believes might ‘encourage’ future separation.

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(g)?????????The legal status of prenuptials in England was also uncertain until recently?whereby they accepted it to be legally valid. In the case of?Radmacher vs. Granatino[16], the court said that prenups do not hit public policy arguments if they are mutually and voluntarily entered by the couple. This judgement redefined the phrase ‘public policy’. The Supreme Court set out three factors that would increase the likelihood of prenuptial getting accepted legally in the court. They are as follows:

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(1st)???The agreement must be freely entered into by both the parties

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(2nd) The parties must have a full apprehension of the implications of the agreement; and

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(3rd)??It must not be unfair to hold the parties to their agreement in the circumstances prevailing.

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It was a historic judgement, and after this case the number of prenuptial agreements saw a steep rise not only in England but also Germany. This ruling has been further underlined in the case of?WW v HW[17].?However, even as case law continues to support it, prenuptial agreements are still not legally binding and there has not been much development on the Law Commission’s proposals of a “qualifying nuptial agreement” made in 2014.

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C.????????????CONFLICT OF LAWS

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The Divorce Act, 1869 under Section 40[18] speaks about ante-nuptial and postnuptial agreement but it is subject to the decree of the court.?The court may make such orders with reference to the application of??the whole or a portion of the property settled, whether for the benefit of the husband or the wife, or the children (if any).

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Prenuptials are treated as unenforceable agreements since either party may be required to sign away the right to legal remedy in the division of the marital estate after the dissolution of marriage. Under Section 28[19] of the Contract Act, any contract “by which any party thereto is restricted absolutely from enforcing his/her rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals” is void.

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D.???????????COMPARISON WITH ENGLISH LAWS

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At present, English laws do not fully recognize prenuptial agreements. In?S v. S[20] it was noted by Justice Wall that although English does not fully recognize prenuptial agreements, but they may be considered in accordance with the factual circumstances of the case. Also, prenuptial agreements will not be taken as the “sole consideration”, while they can be relevant considerations in cases of division of assets and financial provision.?In?F v. F[21], Thorpe J. stated that a prenuptial agreement must be “of very little significance” since the distribution of assets must take place in accordance with statutory formula and “cannot be much influenced by contractual terms.”

Likewise, in?N v. N[22]?(Jurisdiction: Prenuptial Agreement) the court refused to enforce even a?portion?of a prenuptial agreement in which the husband had agreed that, in the event of a divorce, he would take all necessary steps to allow his wife to obtain a “get,” allowing her to remarry under Jewish law. The court held that “even if one divides up the ante nuptial agreement in this case, and looks at the individual clauses separately, one cannot, in my judgment avoid the fundamental proposition that each is part of an agreement entered into before marriage to regulate the parties’ affairs in the event of divorce. The public policy argument, therefore, continues to apply[23].”?For an agreement to be enforceable in the court of law, it must not be overriding with Section 25[24] of Matrimonial Causes Act, 1973, which says that “have regard to all circumstances of the case”.?

There is no specific statute for prenuptials and so their status has been determined by case laws – most notably the landmark case of Radmacher v. Granatino[25]. The English courts have been very unpredictable in their stand. In 2016, a woman was asked by the court to get a job instead of living off maintenance from her ex-husband. In 2017 a man was asked to increase maintenance given to his wife after 15 years of separation and their son had reached adulthood and she had been awarded all liquid capital at the time of initial financial settlement.

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E.????????????CONCLUSION

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So, to summarize, prenuptial agreements are not legally binding in India.?Indian laws and the legal system being foster children of English common law must pay due attention to this radical verdict.

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Indians have been reported to have the lowest divorce rates[26]. Whether credit goes to Indian traditional values which strongly believe in preserving the sanctity of marriage or the societal pressure to put family before individuality, is debatable. However, the courts certainly have been reliant the same view in issues of divorce, evidenced by the ‘conditions’ that need to be proved for getting away from a partner. Even in current times, irretrievable breakdown of marriage is not a good enough reason for a married couple to breakup according to the lawmakers or the judiciary. In the backdrop on this understanding, it is not difficult to see why acceptance of prenuptial agreements maybe be seen as a tool which encourages future separation and therefore against ‘Indian traditions’. Individual autonomy and freedom is highly treasured and protected and the judiciary in India has always been a supporter of upholding them. If right to marry is considered as a fundamental right under article 21[27] of the Indian Constitution as an extension of protection of life and personal liberty[28], one must be allowed to separate on their own terms as well without unnecessary judicial intervention trying to resolve the problems in a marriage. Some have proposed the validation of a sort of ‘toned down’ version of prenups where priority is given property division related agreements for the time being. However, I believe that if we are going to ask for legalization of prenuptial agreements, then all provisions, provided they are not unlawful, must be considered and given full effect when a couple decided to separate. This may include provisions which trigger separation based on one partner’s actions. Separation proceedings are not after all automatically triggered and requires an individual to proactively file for it. Therefore, there remains the option to work on the relationship of the couple deems fit and withdraw proceedings at any time if an understanding is to be reached. Making prenuptial agreements legal and valid not only makes it easier for the parties involved in the separation but also the job of the judiciary becomes far less complicated. The institution of marriage and its value has undergone a sea change. The courts’ bias of being more accepting of contractual terms in Muslim marriages based on the understanding that in essence it is a contract is wrong. Even in Islam, marriage is a sacrosanct contract and therefore cannot be equated to a regular contract[29]. Hindu marriages have also been considered as a sacrament civil contract[30]?and under Christian personal law there already exists mention of application of prenuptial agreements even though sacrosanct nature of marriage is considered equally important[31]. Therefore, marriage now being seen as having an underlying contractual essence has moved it away from its religious sacramental element. It is my opinion that sanctity of marriage is unlikely to be impacted adversely with the introduction of prenuptial agreements as contracts within marital relations.?

[1] Matthews v. Matthews, 162 S.E.2d 697, 698-99 (N.C. Ct. App. 1968) (refusing enforcement of an agreement entered during marriage due to lack of consideration)

[2] Brian Bix,?Bargaining in the Shadow of Love: The Enforcement of Premarital Agreements and How We Think About Marriage, 40 Wm. & Mary L. Rev. 145 (1998), Av Lawler, Michael G. (2000) “Christian Marriage and Family in the Postmodern World,” Sacred Heart University Review: Vol. 20: Iss. 1, Article 3

[3] Happily married, but conditions apply Times of India,?https://timesofindia.indiatimes.com/life-style/relationships/love-sex/Happily-married-but-conditions-apply/articleshow/12230194.cms?(last visited: Jan 3, 2018)

[4] What agreements are contracts.—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. —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." Nothing herein contained shall affect any law in force in 1[India], and not hereby expressly repealed, by which any contract is required to be made in writing 2or in the presence of witnesses, or any law relating to the registration of documents.

[5] What consideration and objects are lawful, and what not.—The consideration or object of an agreement is lawful, unless— —The consideration or object of an agreement is lawful, unless—" it is forbidden by law;?14?or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies, injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void. Illustrations

(a)??????????A agrees to sell his house to B for 10,000 rupees. Here, B’s promise to pay the sum of 10,000 rupees is the consideration for A’s promise to sell the house and A’s promise to sell the house is the consideration for B’s promise to pay the 10,000 rupees. These are lawful considerations. (a) A agrees to sell his house to B for 10,000 rupees. Here, B’s promise to pay the sum of 10,000 rupees is the consideration for A’s promise to sell the house and A’s promise to sell the house is the consideration for B’s promise to pay the 10,000 rupees. These are lawful considerations."

(b)?????????A promises to pay B 1,000 rupees at the end of six months, if C, who owes that sum to B, fails to pay it. B promises to grant time to C accordingly. Here, the promise of each party is the consideration for the promise of the other party, and they are lawful considerations. (b) A promises to pay B 1,000 rupees at the end of six months, if C, who owes that sum to B, fails to pay it. B promises to grant time to C accordingly. Here, the promise of each party is the consideration for the promise of the other party, and they are lawful considerations."

(c)??????????A promises, for a certain sum paid to him by B, to make good to B the value of his ship if it is wrecked on a certain voyage. Here, A’s promise is the consideration for B’s payment, and B’s payment is the consideration for A’s promise, and these are lawful considerations. (c) A promises, for a certain sum paid to him by B, to make good to B the value of his ship if it is wrecked on a certain voyage. Here, A’s promise is the consideration for B’s payment, and B’s payment is the consideration for A’s promise, and these are lawful considerations."

(d)?????????A promises to maintain B’s child, and B promises to pay A 1,000 rupees yearly for the purpose. Here, the promise of each party is the consideration for the promise of the other party. They are lawful considerations. (d) A promises to maintain B’s child, and B promises to pay A 1,000 rupees yearly for the purpose. Here, the promise of each party is the consideration for the promise of the other party. They are lawful considerations."

(e)?????????A, B and C enter into an agreement for the division among them of gains acquired or to be acquired, by them by fraud. The agreement is void, as its object is unlawful. (e) A, B and C enter into an agreement for the division among them of gains acquired or to be acquired, by them by fraud. The agreement is void, as its object is unlawful."

(f)???????????A promises to obtain for B an employment in the public service and B promises to pay 1,000 rupees to A. The agreement is void, as the consideration for it is unlawful. (f) A promises to obtain for B an employment in the public service and B promises to pay 1,000 rupees to A. The agreement is void, as the consideration for it is unlawful."

(g)??????????A, being agent for a landed proprietor, agrees for money, without the knowledge of his principal, to obtain for B a lease of land belonging to his principal. The agreement between A and B is void, as it implies a fraud by concealment, by A, on his principal. (g) A, being agent for a landed proprietor, agrees for money, without the knowledge of his principal, to obtain for B a lease of land belonging to his principal. The agreement between A and B is void, as it implies a fraud by concealment, by A, on his principal."

(h)?????????A promises B to drop a prosecution which he has instituted against B for robbery, and B promises to restore the value of the things taken. The agreement is void, as its object is unlawful. (h) A promises B to drop a prosecution which he has instituted against B for robbery, and B promises to restore the value of the things taken. The agreement is void, as its object is unlawful."

(i)????????????A’s estate is sold for arrears of revenue under the provisions of an Act of the Legislature, by which the defaulter is prohibited from purchasing the estate. B, upon an understanding with A, becomes the purchaser, and agrees to convey the estate to A upon receiving from him the price which B has paid. The agreement is void, as it renders the transaction, in effect, a purchase by the defaulter and would so defeat the object of the law. (i) A’s estate is sold for arrears of revenue under the provisions of an Act of the Legislature, by which the defaulter is prohibited from purchasing the estate. B, upon an understanding with A, becomes the purchaser, and agrees to convey the estate to A upon receiving from him the price which B has paid. The agreement is void, as it renders the transaction, in effect, a purchase by the defaulter and would so defeat the object of the law."

(j)???????????A, who is B’s mukhtar, promises to exercise his influence, as such, with B in favour of C, and C promises to pay 1,000 rupees to A. The agreement is void, becuase it is immoral. (j) A, who is B’s mukhtar, promises to exercise his influence, as such, with B in favour of C, and C promises to pay 1,000 rupees to A. The agreement is void, becuase it is immoral."

(k)??????????A agrees to let her daughter to hire to B for concubinage. The agreement is void, because it is immoral, though the letting may not be punishable under the Indian Penal Code (45 of 1860).

[6] Agreements in restraint of legal proceedings, void. — Every agreement,—

(a)???????????????by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights; or

(b)??????????????which extinguishes the rights of any party thereto, or discharges any party thereto, from any liability, under or in respect of any contract on the expiry of a specified period so as to restrict any party from enforcing his rights, is void to that extent.

Exception 1.— Saving of contract to refer to arbitration dispute that may arise. —This section shall not render illegal a contract, by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects shall be referred to arbitration, and that only the amount awarded in such arbitration shall be recoverable in respect of the dispute so referred.?

Exception 2.— Saving of contract to refer questions that have already arisen. —Nor shall this section render illegal any contract in writing, by which two or more persons agree to refer to arbitration any question between them which has already arisen, or affect any provision of any law in force for the time being as to references to arbitration.?

[7] ?Voidable marriages .?

(1)??????????Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:?

(a)??????????that the marriage has not been consummated owing to the impotence of the respondent; or

(b)?????????that the marriage is in contravention of the condition specified in clause (ii) of section 5; or

(c)??????????that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner?13?[was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)*], the consent of such guardian was obtained by force?14?[or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent]; or

(d)?????????that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

(2)??????????Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage?

(a)??????????on the ground specified in clause (c) of sub-section (1) shall be entertained if?

(i)???????????the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or

(ii)?????????the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;

(b)?????????on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied?

(i)????????????that the petitioner was at the time of the marriage ignorant of the facts alleged;

(ii)??????????that proceedings have been instituted in the case of a marriage solemnised before the commencement of this Act within one year of such commencement and in the case of marriages solemnised after such commencement within one year from the date of the marriage; and

(iii)?????????that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of?15?[the said ground].

(i)???????????Non-disclosure of age and factum of having major children by husband at the time of marriage amounts to fraud and suppression of material facts having bearing on marriage. Marriage founded on fraud from very inception is a nullity; Sunder Lal Soni v. Smt. Namita Jain, AIR 2006 MP 51.

(ii)?????????Misrepresentation as to the age of the bridegroom made to the mother who acted as an agent and the daughter consented for the marriage believing the statement to be true. It was held that the consent was vitiated by fraud; Babui Panmate v. Ram Agya Singh, AIR 1968 Pat 190.

[8] ILR 1942 All 518

[9] Thirumal Naidu v. Rajammal Alias Rajalakshmi, (1967) 2 MLJ 484

[10] Sandhya Chatterjee v. Salil Chandra Chatterjee, AIR 1980 Cal 244

[11] Amrita Ghosh & pratyusha Kar, ‘pre-nupital agreements in India: An analysis of law and society’ 12 NUJS L. Rev. (2019)?https://nujslawreview.org/wp-content/uploads/2019/12/12-2-Ghosh-and-Kar.pdf

[12] Carroll, Lucy (1986),?Fatima in the House of Lords, The Modern Law Review, 49(6): 776-781

[13] V.P. Bhartiya;?Syed Khalid Rahid’s?MUSLIM LAW, Fifth Edition, Eastern Book Company, 2009, pg-89

[14] Khatun Bibi v. Rajja, AIR 1926 All 615

[15] Mohd Khan v. Shahmali, AIR 1972 J&K 8

[16] 2010 UK SC 42

[17] [2015] EWHC 1844 (FAM)

[18] Inquiry into existence of ante- nuptial or post- nuptial settlements.- The High Court, after a decree absolute for dissolution of marriage, or a decree of nullity of marriage, and the District Court, after its decree for dissolution of marriage or of nullity of marriage has been confirmed, may inquire into the existence of ante- nuptial or post- nuptial settlements made on the parties whose marriage is the subject of the decree, and may make such orders, with reference to the application of the whole or a portion of the property settled, whether for the benefit of the husband of the wife, or of the children (if any) of the marriage, or of both children and parents, as to the Court seems fit: Provided that the Court shall not make any order for the benefit of the parents or either of them at the expense of the children.

[19] Agreements in restraint of legal proceedings, void. — Every agreement,—

(a)??????????by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights; or

(b)?????????which extinguishes the rights of any party thereto, or discharges any party thereto, from any liability, under or in respect of any contract on the expiry of a specified period so as to restrict any party from enforcing his rights, is void to that extent.

Exception 1.— Saving of contract to refer to arbitration dispute that may arise. —This section shall not render illegal a contract, by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects shall be referred to arbitration, and that only the amount awarded in such arbitration shall be recoverable in respect of the dispute so referred.?

Exception 2.— Saving of contract to refer questions that have already arisen. —Nor shall this section render illegal any contract in writing, by which two or more persons agree to refer to arbitration any question between them which has already arisen, or affect any provision of any law in force for the time being as to references to arbitration.?

[20] [1997] 2 FLR 100

[21] (1995) 2 F.L.R. 45

[22] (1999) 2 FLR 745

[23] https://www.international-divorce.com/prenups_around_the_world.htm

[24] Matters to which court is to have regard in deciding how to exercise its powers under ss. 23, 24?[F2, 24A, 24B and 24E].

(1)??????????It shall be the duty of the court in deciding whether to exercise its powers under section 23, 24?[F3, 24A?[F4, 24B or 24E]]?above and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.

(2)??????????As regards the exercise of the powers of the court under section 23(1)(?a?), (?b?) or (?c?), 24?[F5?, 24A?[F6, 24B or 24E]]?above in relation to a party to the marriage, the court shall in particular have regard to the following matters—

(a)??????????the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;

(b)?????????the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(c)??????????the standard of living enjoyed by the family before the breakdown of the marriage;

(d)?????????the age of each party to the marriage and the duration of the marriage;

(e)?????????any physical or mental disability of either of the parties to the marriage;

(f)???????????the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;

(g)??????????the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;

(h)?????????in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit?F7?. . . which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

(3)??????????As regards the exercise of the powers of the court under section 23(1)(?d?), (?e?) or (?f?), (2) or (4), 24 or 24A above in relation to a child of the family, the court shall in particular have regard to the following matters—

(a)??????????the financial needs of the child;

(b)?????????the income, earning capacity (if any), property and other financial resources of the child;

(c)??????????any physical or mental disability of the child;

(d)?????????the manner in which he was being and in which the parties to the marriage expected him to be educated or trained;

(e)?????????the considerations mentioned in relation to the parties to the marriage in paragraphs (?a?), (?b?), (?c?) and (?e?) of subsection (2) above.

(4)??????????As regards the exercise of the powers of the court under section 23(1)(?d?), (?e?) or (?f?), (2) or (4), 24 or 24A above against a party to a marriage in favour of a child of the family who is not the child of that party, the court shall also have regard—

(a)??????????to whether that party assumed any responsibility for the child’s maintenance, and, if so, to the extent to which, and the basis upon which, that party assumed such responsibility and to the length of time for which that party discharged such responsibility;

(b)?????????to whether in assuming and discharging such responsibility that party did so knowing that the child was not his or her own;

(c)??????????to the liability of any other person to maintain the child.]

[25] [2010] UKSC 42; [2011] 1 AC 534; [2010] 3 WLR 1367; [2011] 1 All ER 373; [2010] 2 FLR 1900; [2010] 3 FCR 583; [2010] Fam Law 1263

[26] Anila Kurian, ‘India last in divorce. Good or bad?’?(Deccan Herald, 14 February 2019)?https://www.deccanherald.com/metrolife/india-last-divorce-good-or-bad-718449.html

[27] Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law

[28] Shafin Jahan v. Ashokan K.M and ors. (2018) 16 SCC 368

[29] Sirajmohammad Khan v. Jan Mohammad, AIR 1981 SC 1972

[30] B. Muthusami Mudaliar v. Masilamani, 5 Ind Cas 42

[31] Peter Philip Saldanha v. Anne Grace Saldanha, (1930) 32 BOMLR 17

A.???????????INTRODUCTION

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A prenuptial agreement or also commonly known as a prenup is a contract that a prospective bride and groom or civil union between people who intend to marry enter into. The contract may contain various terms relating to different aspects of the relationship, however, it is most widely used for the setting down agreements regarding spousal support, division of assets and property, etc. in the unfortunate event of a divorce or breakup of marriage between the two parties. Prenuptial agreements are popular in different countries of the world governed by different laws. Many consider it a smart choice today for ensuring security of a couple’s respective assets even in the event of split which are mutually agreeable.

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Pre-nuptial agreements can be called an agreement to validate the account of marriage[1]. Basically this agreement was a western concept, but now it is gaining momentum in the east as well. Prenuptial agreement, is an agreement before the marriage, entered by the parties intending to enter the union of marriage. This is done to ensure that after marriage all the assets of both the parties are divided. But the notion of pre-nup stands in-between many concepts of family law, contract law, economics, feminism, and public interest[2].

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Which otherwise would be divided by the laws of the land which bind the marriage and dictates the divorce as well. Socially, there is a negative perception over getting a prenuptial agreements. People believe that such agreements undermine the sanctity of marriage or that it is made by people who want an easy way out of marriage, are cynical or just outright mean. However, many celebrities have been on the news about having prenuptial agreements and a lot of people now find it prudent to have agreement which guarantees individual freedom and in fact a symbolism of trust between the two people who are going to get married.

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B.????????????EXISTING LEGAL POSITION

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A prenuptial agreement is between two spouses. It is essentially a settlement in writing between the two spouses which states that on death or divorce or separation what will be the financial liability of the respective spouses. In simple phrases it lays out the proportion of assets, property, and money each of them gets if the wedding is dissolved.

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It is a very popular concept in the West, where celebrity couples like Tom Cruise – Katie Holmes and Michael Douglas-Catherine Zeta have opted for pre-nuptials. Where Katie Holmes claims whooping 3 million dollars for every year the marriage survives and Catherine is entitled to receive 5 million dollars on charges of infidelity against Michael Douglas[3].?

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Prenuptial Agreement in India seems like an alien idea. Unlike western countries wherein marriage is taken to be a contract between husband and spouse, in India marriage is taken into consideration as a holy alliance of two persons for existence and for this reason, a prenuptial settlement is legally invalid under the Hindu Marriage Act in India.?

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Divorce laws in India are governed by the personal laws – Hindu Marriage Act, 1955, Indian Christian Act, 1872, etc. Provision for maintenance exists in all matrimonial laws with the only dissimilarity that under Hindu Marriage Act, either of the spouses can claim maintenance, but under others only the wife can claim maintenance. Generally, alimony is granted based on income, property of both the parties and their conduct. It may not always be possible to prevent a divorce, but a prenuptial agreement would ensure that one would get the rough end of the stick in matters of financial settlements.

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The development of prenuptial agreements in India is at its nascent stage and its current stage uncertain. There is no specific legislation governing prenuptial agreements and in the absence of it, there is a need to find its mention in other legislations. Since the subject matter is marriage, it is obvious to start from looking through the different personal laws which govern them as India also currently does not have a uniform civil code.

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(i)???????????CONTRACTUAL POSITION?

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Many countries like Canada, Italy and France have matrimonial regimes along with pre-nuptial agreements. While India does not have a specific statute governing pre-nuptial agreements,?even then if such pre-nuptial agreement were to be considered in India, it would fall under the ambit of Indian Contract Act, 1872. The Indian Contract Act under section 10[4] provides that a valid agreement is one which is made between two consenting individuals on mutually agreed upon terms, for a consideration and a lawful object.?Judicial decisions have over the years, refused to consider the validity of a prenuptial contract declaring to be against public policy and therefore a void contract under section 23[5] of the Contract Act. It must be emphasized that prenuptials are only considered to be ordinary agreements in India. Goa is the only state where prenuptial agreements are enforceable because it follows Portuguese Civil Code, 1867. Under?Special Marriage Act, 1954, if all necessary documents (under the act) required for declaration of marriage are registered at the Registrar’s office, then prenuptials can be legally binding.

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It is to be noted that since prenuptials are not enforceable in court of law, many people lose interest. But a few insist on having an agreement signed up, mostly because they do not want to jeopardise their assets.?The document may not provide for a clear division of assets but may simply be a way to pre-determine the maintenance provisions and custody decisions.?

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However, the terms and conditions in these documents must be “reasonable” enough for the courts. For example, if the agreement says that after separation the child would be in custody of only one parent and would not be allowed to meet the other, it would not be entertained in the court on the grounds of violation of public policy. Also, if a fortune 500 business tycoon’s marriage breaks down within a few months, each party would not walk away with 50% of the total estate.

In case a woman gives up her legal rights in the agreement, the court would strike off such an agreement. This is because Section 28[6] of Indian Contract act provides that an agreement in which a party gives up their right to legal remedies is void.

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Violation or breach of a prenuptial agreement which has been notarised and stamped can welcome an offence of fraud. Fraud is a ground for divorce under Section 12[7] of the Hindu Marriage Act, 1955.?

In the United States, there is a provision of the Uniform Premarital Agreement Act, which has been adopted by 27 states (until July 2018). Prenuptial agreements have no legal sanctity in India. This is because of the differences in the definition of marriage itself — marriages in the US are regarded as contracts entered into by equal parties, whereas the law in India views them primarily as a sacrament. They are also looked down upon by Indian courts because they are usually made by rich husbands, so that in case of a possible dissolution they don’t lose out on their money. The idea of a prenuptial agreement, which accepts the possibility of a separation, would thus strike at the very heart of that definition.

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(ii)?????????PRECEDENTS

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However, there have also been judgements in recent times where fair agreements have been upheld.

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(a)?????????In the landmark case of?Bhagwati Saran Singh vs. Parmeshwari Nandar Singh[8], the Allahabad High court held that marriage in addition to being a sacrament is a civil contract entered into between two parties.

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(b)?????????In the case of Thirumal Naidu v. Rajammal Alias Rajalakshmi[9], the prenuptial agreement stated that the married couple was to live separately. This went against the claim of restitution of conjugal rights. The court held that a Hindu marriage is sacramental in nature and not in the nature of a contract. Moreover, a prenuptial agreement envisaging future separations is against public policy and therefore invalid. There has been an emphasis that contractual agreements cannot override Hindu personal laws and traditions this will also amount to going against public policy. In cases where the courts have upheld the validity of terms of prenuptial contracts is mostly when it is related to property protection.

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(c)??????????In the case of Sandhya Chaterjee v. Salil Chandra[10] the Calcutta HC discussed the validity of a marital contract based on public policy as against the freedom of two individuals to enter into a contract. Ghosh and Kar make the same point in their paper and conclude that the trend till now in upholding the validity of a prenuptial contract has been with reference to other legal principles such as property law or by creating exceptions to the existing jurisprudence on the issue, not by itself[11].

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Based on the above mentioned cases, it seems that in Hindu marriages, the judiciary is only inclined to consider prenuptial agreements when it is in regards to property.

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(d)?????????Similarly, in Islam, even though marriage is in the nature of a civil contract, it has been upheld by the court that terms of contract which go against Islamic law or places unreasonable restrictions only on one of the spouses, or if the interpretation of such contracts results in the conclusion that it goes against public policy, they have been held to be invalid. In Mohammedan law the idea of pre-nuptial prevailed even before the popular westerns adopting it. As most Muslim marriages involve the negotiation of a?mahr?provision as part of a marriage contract which consists of a monetary payment from husband to wife[12], so the notion of?Mahr, under Mohammedan law, as defined by Tyabji, “Mahr?or?dower?is a sum that becomes payable by the husband to the wife on marriage, either by an agreement between the parties, or by operation of law[13]”

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(e)?????????For example, in the case of Khatum Bibi v. Rajjab[14], the court held that restricting the liberty of movement of the spouse was against public policy and also against Mohammedan law.

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(f)???????????It seems that what constitutes as public policy according to the judiciary largely depends on the religious law, tradition and practice. In that regard, in the case of Mohd Khan v. Shahmali[15], it was decided by the High Court of Jammu and Kashmir held that if the contractual terms directed for the husband to stay at the wife’s maternal home, then the husband is bound to do so as it is common culture in Kashmir valley.

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While accepting that Muslim marriages are essentially a contractual union, they are more open to accepting prenuptial agreements. However, it is still in a restrictive sense where terms of nikahnama are given a strict interpretation and anything which goes against public policy is rejected. . The question arises whether the court considers a marital agreement itself objectionable or whether it objects to the inclusion of certain provisions which it believes might ‘encourage’ future separation.

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(g)?????????The legal status of prenuptials in England was also uncertain until recently?whereby they accepted it to be legally valid. In the case of?Radmacher vs. Granatino[16], the court said that prenups do not hit public policy arguments if they are mutually and voluntarily entered by the couple. This judgement redefined the phrase ‘public policy’. The Supreme Court set out three factors that would increase the likelihood of prenuptial getting accepted legally in the court. They are as follows:

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(1st)???The agreement must be freely entered into by both the parties

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(2nd) The parties must have a full apprehension of the implications of the agreement; and

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(3rd)??It must not be unfair to hold the parties to their agreement in the circumstances prevailing.

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It was a historic judgement, and after this case the number of prenuptial agreements saw a steep rise not only in England but also Germany. This ruling has been further underlined in the case of?WW v HW[17].?However, even as case law continues to support it, prenuptial agreements are still not legally binding and there has not been much development on the Law Commission’s proposals of a “qualifying nuptial agreement” made in 2014.

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C.????????????CONFLICT OF LAWS

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The Divorce Act, 1869 under Section 40[18] speaks about ante-nuptial and postnuptial agreement but it is subject to the decree of the court.?The court may make such orders with reference to the application of??the whole or a portion of the property settled, whether for the benefit of the husband or the wife, or the children (if any).

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Prenuptials are treated as unenforceable agreements since either party may be required to sign away the right to legal remedy in the division of the marital estate after the dissolution of marriage. Under Section 28[19] of the Contract Act, any contract “by which any party thereto is restricted absolutely from enforcing his/her rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals” is void.

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D.???????????COMPARISON WITH ENGLISH LAWS

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At present, English laws do not fully recognize prenuptial agreements. In?S v. S[20] it was noted by Justice Wall that although English does not fully recognize prenuptial agreements, but they may be considered in accordance with the factual circumstances of the case. Also, prenuptial agreements will not be taken as the “sole consideration”, while they can be relevant considerations in cases of division of assets and financial provision.?In?F v. F[21], Thorpe J. stated that a prenuptial agreement must be “of very little significance” since the distribution of assets must take place in accordance with statutory formula and “cannot be much influenced by contractual terms.”

Likewise, in?N v. N[22]?(Jurisdiction: Prenuptial Agreement) the court refused to enforce even a?portion?of a prenuptial agreement in which the husband had agreed that, in the event of a divorce, he would take all necessary steps to allow his wife to obtain a “get,” allowing her to remarry under Jewish law. The court held that “even if one divides up the ante nuptial agreement in this case, and looks at the individual clauses separately, one cannot, in my judgment avoid the fundamental proposition that each is part of an agreement entered into before marriage to regulate the parties’ affairs in the event of divorce. The public policy argument, therefore, continues to apply[23].”?For an agreement to be enforceable in the court of law, it must not be overriding with Section 25[24] of Matrimonial Causes Act, 1973, which says that “have regard to all circumstances of the case”.?

There is no specific statute for prenuptials and so their status has been determined by case laws – most notably the landmark case of Radmacher v. Granatino[25]. The English courts have been very unpredictable in their stand. In 2016, a woman was asked by the court to get a job instead of living off maintenance from her ex-husband. In 2017 a man was asked to increase maintenance given to his wife after 15 years of separation and their son had reached adulthood and she had been awarded all liquid capital at the time of initial financial settlement.

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E.????????????CONCLUSION

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So, to summarize, prenuptial agreements are not legally binding in India.?Indian laws and the legal system being foster children of English common law must pay due attention to this radical verdict.

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Indians have been reported to have the lowest divorce rates[26]. Whether credit goes to Indian traditional values which strongly believe in preserving the sanctity of marriage or the societal pressure to put family before individuality, is debatable. However, the courts certainly have been reliant the same view in issues of divorce, evidenced by the ‘conditions’ that need to be proved for getting away from a partner. Even in current times, irretrievable breakdown of marriage is not a good enough reason for a married couple to breakup according to the lawmakers or the judiciary. In the backdrop on this understanding, it is not difficult to see why acceptance of prenuptial agreements maybe be seen as a tool which encourages future separation and therefore against ‘Indian traditions’. Individual autonomy and freedom is highly treasured and protected and the judiciary in India has always been a supporter of upholding them. If right to marry is considered as a fundamental right under article 21[27] of the Indian Constitution as an extension of protection of life and personal liberty[28], one must be allowed to separate on their own terms as well without unnecessary judicial intervention trying to resolve the problems in a marriage. Some have proposed the validation of a sort of ‘toned down’ version of prenups where priority is given property division related agreements for the time being. However, I believe that if we are going to ask for legalization of prenuptial agreements, then all provisions, provided they are not unlawful, must be considered and given full effect when a couple decided to separate. This may include provisions which trigger separation based on one partner’s actions. Separation proceedings are not after all automatically triggered and requires an individual to proactively file for it. Therefore, there remains the option to work on the relationship of the couple deems fit and withdraw proceedings at any time if an understanding is to be reached. Making prenuptial agreements legal and valid not only makes it easier for the parties involved in the separation but also the job of the judiciary becomes far less complicated. The institution of marriage and its value has undergone a sea change. The courts’ bias of being more accepting of contractual terms in Muslim marriages based on the understanding that in essence it is a contract is wrong. Even in Islam, marriage is a sacrosanct contract and therefore cannot be equated to a regular contract[29]. Hindu marriages have also been considered as a sacrament civil contract[30]?and under Christian personal law there already exists mention of application of prenuptial agreements even though sacrosanct nature of marriage is considered equally important[31]. Therefore, marriage now being seen as having an underlying contractual essence has moved it away from its religious sacramental element. It is my opinion that sanctity of marriage is unlikely to be impacted adversely with the introduction of prenuptial agreements as contracts within marital relations.?

[1] Matthews v. Matthews, 162 S.E.2d 697, 698-99 (N.C. Ct. App. 1968) (refusing enforcement of an agreement entered during marriage due to lack of consideration)

[2] Brian Bix,?Bargaining in the Shadow of Love: The Enforcement of Premarital Agreements and How We Think About Marriage, 40 Wm. & Mary L. Rev. 145 (1998), Av Lawler, Michael G. (2000) “Christian Marriage and Family in the Postmodern World,” Sacred Heart University Review: Vol. 20: Iss. 1, Article 3

[3] Happily married, but conditions apply Times of India,?https://timesofindia.indiatimes.com/life-style/relationships/love-sex/Happily-married-but-conditions-apply/articleshow/12230194.cms?(last visited: Jan 3, 2018)

[4] What agreements are contracts.—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. —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." Nothing herein contained shall affect any law in force in 1[India], and not hereby expressly repealed, by which any contract is required to be made in writing 2or in the presence of witnesses, or any law relating to the registration of documents.

[5] What consideration and objects are lawful, and what not.—The consideration or object of an agreement is lawful, unless— —The consideration or object of an agreement is lawful, unless—" it is forbidden by law;?14?or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies, injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void. Illustrations

(a)??????????A agrees to sell his house to B for 10,000 rupees. Here, B’s promise to pay the sum of 10,000 rupees is the consideration for A’s promise to sell the house and A’s promise to sell the house is the consideration for B’s promise to pay the 10,000 rupees. These are lawful considerations. (a) A agrees to sell his house to B for 10,000 rupees. Here, B’s promise to pay the sum of 10,000 rupees is the consideration for A’s promise to sell the house and A’s promise to sell the house is the consideration for B’s promise to pay the 10,000 rupees. These are lawful considerations."

(b)?????????A promises to pay B 1,000 rupees at the end of six months, if C, who owes that sum to B, fails to pay it. B promises to grant time to C accordingly. Here, the promise of each party is the consideration for the promise of the other party, and they are lawful considerations. (b) A promises to pay B 1,000 rupees at the end of six months, if C, who owes that sum to B, fails to pay it. B promises to grant time to C accordingly. Here, the promise of each party is the consideration for the promise of the other party, and they are lawful considerations."

(c)??????????A promises, for a certain sum paid to him by B, to make good to B the value of his ship if it is wrecked on a certain voyage. Here, A’s promise is the consideration for B’s payment, and B’s payment is the consideration for A’s promise, and these are lawful considerations. (c) A promises, for a certain sum paid to him by B, to make good to B the value of his ship if it is wrecked on a certain voyage. Here, A’s promise is the consideration for B’s payment, and B’s payment is the consideration for A’s promise, and these are lawful considerations."

(d)?????????A promises to maintain B’s child, and B promises to pay A 1,000 rupees yearly for the purpose. Here, the promise of each party is the consideration for the promise of the other party. They are lawful considerations. (d) A promises to maintain B’s child, and B promises to pay A 1,000 rupees yearly for the purpose. Here, the promise of each party is the consideration for the promise of the other party. They are lawful considerations."

(e)?????????A, B and C enter into an agreement for the division among them of gains acquired or to be acquired, by them by fraud. The agreement is void, as its object is unlawful. (e) A, B and C enter into an agreement for the division among them of gains acquired or to be acquired, by them by fraud. The agreement is void, as its object is unlawful."

(f)???????????A promises to obtain for B an employment in the public service and B promises to pay 1,000 rupees to A. The agreement is void, as the consideration for it is unlawful. (f) A promises to obtain for B an employment in the public service and B promises to pay 1,000 rupees to A. The agreement is void, as the consideration for it is unlawful."

(g)??????????A, being agent for a landed proprietor, agrees for money, without the knowledge of his principal, to obtain for B a lease of land belonging to his principal. The agreement between A and B is void, as it implies a fraud by concealment, by A, on his principal. (g) A, being agent for a landed proprietor, agrees for money, without the knowledge of his principal, to obtain for B a lease of land belonging to his principal. The agreement between A and B is void, as it implies a fraud by concealment, by A, on his principal."

(h)?????????A promises B to drop a prosecution which he has instituted against B for robbery, and B promises to restore the value of the things taken. The agreement is void, as its object is unlawful. (h) A promises B to drop a prosecution which he has instituted against B for robbery, and B promises to restore the value of the things taken. The agreement is void, as its object is unlawful."

(i)????????????A’s estate is sold for arrears of revenue under the provisions of an Act of the Legislature, by which the defaulter is prohibited from purchasing the estate. B, upon an understanding with A, becomes the purchaser, and agrees to convey the estate to A upon receiving from him the price which B has paid. The agreement is void, as it renders the transaction, in effect, a purchase by the defaulter and would so defeat the object of the law. (i) A’s estate is sold for arrears of revenue under the provisions of an Act of the Legislature, by which the defaulter is prohibited from purchasing the estate. B, upon an understanding with A, becomes the purchaser, and agrees to convey the estate to A upon receiving from him the price which B has paid. The agreement is void, as it renders the transaction, in effect, a purchase by the defaulter and would so defeat the object of the law."

(j)???????????A, who is B’s mukhtar, promises to exercise his influence, as such, with B in favour of C, and C promises to pay 1,000 rupees to A. The agreement is void, becuase it is immoral. (j) A, who is B’s mukhtar, promises to exercise his influence, as such, with B in favour of C, and C promises to pay 1,000 rupees to A. The agreement is void, becuase it is immoral."

(k)??????????A agrees to let her daughter to hire to B for concubinage. The agreement is void, because it is immoral, though the letting may not be punishable under the Indian Penal Code (45 of 1860).

[6] Agreements in restraint of legal proceedings, void. — Every agreement,—

(a)???????????????by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights; or

(b)??????????????which extinguishes the rights of any party thereto, or discharges any party thereto, from any liability, under or in respect of any contract on the expiry of a specified period so as to restrict any party from enforcing his rights, is void to that extent.

Exception 1.— Saving of contract to refer to arbitration dispute that may arise. —This section shall not render illegal a contract, by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects shall be referred to arbitration, and that only the amount awarded in such arbitration shall be recoverable in respect of the dispute so referred.?

Exception 2.— Saving of contract to refer questions that have already arisen. —Nor shall this section render illegal any contract in writing, by which two or more persons agree to refer to arbitration any question between them which has already arisen, or affect any provision of any law in force for the time being as to references to arbitration.?

[7] ?Voidable marriages .?

(1)??????????Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:?

(a)??????????that the marriage has not been consummated owing to the impotence of the respondent; or

(b)?????????that the marriage is in contravention of the condition specified in clause (ii) of section 5; or

(c)??????????that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner?13?[was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)*], the consent of such guardian was obtained by force?14?[or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent]; or

(d)?????????that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

(2)??????????Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage?

(a)??????????on the ground specified in clause (c) of sub-section (1) shall be entertained if?

(i)???????????the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or

(ii)?????????the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;

(b)?????????on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied?

(i)????????????that the petitioner was at the time of the marriage ignorant of the facts alleged;

(ii)??????????that proceedings have been instituted in the case of a marriage solemnised before the commencement of this Act within one year of such commencement and in the case of marriages solemnised after such commencement within one year from the date of the marriage; and

(iii)?????????that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of?15?[the said ground].

(i)???????????Non-disclosure of age and factum of having major children by husband at the time of marriage amounts to fraud and suppression of material facts having bearing on marriage. Marriage founded on fraud from very inception is a nullity; Sunder Lal Soni v. Smt. Namita Jain, AIR 2006 MP 51.

(ii)?????????Misrepresentation as to the age of the bridegroom made to the mother who acted as an agent and the daughter consented for the marriage believing the statement to be true. It was held that the consent was vitiated by fraud; Babui Panmate v. Ram Agya Singh, AIR 1968 Pat 190.

[8] ILR 1942 All 518

[9] Thirumal Naidu v. Rajammal Alias Rajalakshmi, (1967) 2 MLJ 484

[10] Sandhya Chatterjee v. Salil Chandra Chatterjee, AIR 1980 Cal 244

[11] Amrita Ghosh & pratyusha Kar, ‘pre-nupital agreements in India: An analysis of law and society’ 12 NUJS L. Rev. (2019)?https://nujslawreview.org/wp-content/uploads/2019/12/12-2-Ghosh-and-Kar.pdf

[12] Carroll, Lucy (1986),?Fatima in the House of Lords, The Modern Law Review, 49(6): 776-781

[13] V.P. Bhartiya;?Syed Khalid Rahid’s?MUSLIM LAW, Fifth Edition, Eastern Book Company, 2009, pg-89

[14] Khatun Bibi v. Rajja, AIR 1926 All 615

[15] Mohd Khan v. Shahmali, AIR 1972 J&K 8

[16] 2010 UK SC 42

[17] [2015] EWHC 1844 (FAM)

[18] Inquiry into existence of ante- nuptial or post- nuptial settlements.- The High Court, after a decree absolute for dissolution of marriage, or a decree of nullity of marriage, and the District Court, after its decree for dissolution of marriage or of nullity of marriage has been confirmed, may inquire into the existence of ante- nuptial or post- nuptial settlements made on the parties whose marriage is the subject of the decree, and may make such orders, with reference to the application of the whole or a portion of the property settled, whether for the benefit of the husband of the wife, or of the children (if any) of the marriage, or of both children and parents, as to the Court seems fit: Provided that the Court shall not make any order for the benefit of the parents or either of them at the expense of the children.

[19] Agreements in restraint of legal proceedings, void. — Every agreement,—

(a)??????????by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights; or

(b)?????????which extinguishes the rights of any party thereto, or discharges any party thereto, from any liability, under or in respect of any contract on the expiry of a specified period so as to restrict any party from enforcing his rights, is void to that extent.

Exception 1.— Saving of contract to refer to arbitration dispute that may arise. —This section shall not render illegal a contract, by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects shall be referred to arbitration, and that only the amount awarded in such arbitration shall be recoverable in respect of the dispute so referred.?

Exception 2.— Saving of contract to refer questions that have already arisen. —Nor shall this section render illegal any contract in writing, by which two or more persons agree to refer to arbitration any question between them which has already arisen, or affect any provision of any law in force for the time being as to references to arbitration.?

[20] [1997] 2 FLR 100

[21] (1995) 2 F.L.R. 45

[22] (1999) 2 FLR 745

[23] https://www.international-divorce.com/prenups_around_the_world.htm

[24] Matters to which court is to have regard in deciding how to exercise its powers under ss. 23, 24?[F2, 24A, 24B and 24E].

(1)??????????It shall be the duty of the court in deciding whether to exercise its powers under section 23, 24?[F3, 24A?[F4, 24B or 24E]]?above and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.

(2)??????????As regards the exercise of the powers of the court under section 23(1)(?a?), (?b?) or (?c?), 24?[F5?, 24A?[F6, 24B or 24E]]?above in relation to a party to the marriage, the court shall in particular have regard to the following matters—

(a)??????????the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;

(b)?????????the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(c)??????????the standard of living enjoyed by the family before the breakdown of the marriage;

(d)?????????the age of each party to the marriage and the duration of the marriage;

(e)?????????any physical or mental disability of either of the parties to the marriage;

(f)???????????the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;

(g)??????????the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;

(h)?????????in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit?F7?. . . which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

(3)??????????As regards the exercise of the powers of the court under section 23(1)(?d?), (?e?) or (?f?), (2) or (4), 24 or 24A above in relation to a child of the family, the court shall in particular have regard to the following matters—

(a)??????????the financial needs of the child;

(b)?????????the income, earning capacity (if any), property and other financial resources of the child;

(c)??????????any physical or mental disability of the child;

(d)?????????the manner in which he was being and in which the parties to the marriage expected him to be educated or trained;

(e)?????????the considerations mentioned in relation to the parties to the marriage in paragraphs (?a?), (?b?), (?c?) and (?e?) of subsection (2) above.

(4)??????????As regards the exercise of the powers of the court under section 23(1)(?d?), (?e?) or (?f?), (2) or (4), 24 or 24A above against a party to a marriage in favour of a child of the family who is not the child of that party, the court shall also have regard—

(a)??????????to whether that party assumed any responsibility for the child’s maintenance, and, if so, to the extent to which, and the basis upon which, that party assumed such responsibility and to the length of time for which that party discharged such responsibility;

(b)?????????to whether in assuming and discharging such responsibility that party did so knowing that the child was not his or her own;

(c)??????????to the liability of any other person to maintain the child.]

[25] [2010] UKSC 42; [2011] 1 AC 534; [2010] 3 WLR 1367; [2011] 1 All ER 373; [2010] 2 FLR 1900; [2010] 3 FCR 583; [2010] Fam Law 1263

[26] Anila Kurian, ‘India last in divorce. Good or bad?’?(Deccan Herald, 14 February 2019)?https://www.deccanherald.com/metrolife/india-last-divorce-good-or-bad-718449.html

[27] Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law

[28] Shafin Jahan v. Ashokan K.M and ors. (2018) 16 SCC 368

[29] Sirajmohammad Khan v. Jan Mohammad, AIR 1981 SC 1972

[30] B. Muthusami Mudaliar v. Masilamani, 5 Ind Cas 42

[31] Peter Philip Saldanha v. Anne Grace Saldanha, (1930) 32 BOMLR 17