Pre-Nuptial Agreements in India: An Analysis of Law and Society
Amrita Ghosh & Pratyusha Kar*
Volume 12 Issue 2 (2019)
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.