Legality of Prenuptial Agreements in India
Prenuptial agreements (prenups) in India are not explicitly recognised or enforceable under Indian law except in the state of Goa. The general juridical stance under Hindu law and other personal laws is that such agreements are against public policy and void. Despite the absence of specific legislation, courts have primarily examined prenuptial agreements through the lens of contract law principles and public policy considerations.
What is a Prenuptial Agreement?
A Prenuptial Agreement is a contract entered into by two individuals before marriage. It typically outlines:
- Ownership of property and assets,
- Maintenance or alimony in case of divorce,
- Liability for debts,
- Financial rights and obligations during and after marriage.
In simple terms, a prenup safeguards individual interests and reduces disputes in case the marriage ends.
Relevant Legal Sections
Since there is no dedicated Prenuptial Agreement Act, the validity of a prenup is tested against general contract law and personal law provisions:
| Act | Section | Relevance |
| Indian Contract Act, 1872 | Section 10 | Stipulates the essentials of a valid contract (free consent, competent parties, lawful consideration, lawful object). A prenup must satisfy this section to be considered a contract. |
| Indian Contract Act, 1872 | Section 23 | Declares an agreement void if its object or consideration is unlawful or is “opposed to public policy.” This is the most common ground for courts to invalidate prenups (e.g., if they encourage separation). |
| Indian Contract Act, 1872 | Section 28 | States that any agreement that restricts a party absolutely from enforcing their rights by usual legal proceedings is void. This is often used to strike down clauses that waive the right to seek maintenance or alimony from a court. |
| Hindu Marriage Act, 1955 | Section 25 | Deals with Permanent Alimony and Maintenance. Any prenuptial clause that seeks to restrict the court’s power to award maintenance under this section may be considered void. |
Under Personal Laws
Hindu Law
Marriage is a sacrament, not a contract. Therefore, any agreement that contemplates dissolution or regulates post-divorce matters may be invalid as it goes against Hindu marriage principles.
Muslim Law
Muslim law recognizes Nikahnama, which can include conditions similar to prenuptial clauses — for example, mehr, maintenance, and property arrangements. Hence, Muslim law provides limited recognition to such agreements.
Christian and Parsi Laws
There is no statutory provision validating prenuptial agreements under these personal laws.
Special Marriage Act, 1954
Marriages under this Act are civil in nature, and hence, a prenup may be considered valid if it adheres to the Contract Act and does not oppose public policy.
Judicial Approach and Case Laws: Prenup case laws India
- Tekait Mon Mohini Jemadai v. Basanta Kumar Singh (1901) 28 Cal 751
- The Calcutta High Court held that an agreement restricting the husband’s rights within marriage was void, as it was opposed to Hindu law.
- Krishna Aiyar v. Balammal (1911) ILR 34 Mad 398
- An agreement determining the husband’s conduct during marriage was held invalid as it conflicted with the personal nature of marriage.
- Bai Fatma v. Ali Mahomed Aiyab (1912) 14 Bom LR 1084
- The court upheld an agreement in a Nikahnama providing maintenance rights to the wife — showing limited acceptance under Muslim personal law.
- Sandhya Chatterjee v. Salil Chandra Chatterjee (1997)
- The court observed that a mutual agreement for divorce or settlement made voluntarily and not opposed to public policy can be considered.
- Recent Trends
- In modern cases, courts have begun considering prenups as persuasive documents to understand the intention of parties, especially in matters of alimony, maintenance, and property division.
Relevance under the Indian Legal System
Though not legally binding, prenuptial agreements can:
- Serve as evidence of mutual understanding,
- Help in speedy settlement of disputes,
- Reduce litigation and emotional distress during separation.
Some Family Courts and Mediation Centres now view prenups as a progressive tool to promote transparency between partners.
Exception: Hindu marriage prenup
State of Goa:
- Goa is the sole Indian jurisdiction where prenuptial agreements are legally recognized, governed by the Portuguese Civil Code.
- The law allows spouses to enter into agreements about asset distribution prior to marriage, which provides a model for regulated and legally valid prenups.
Judicial and Legislative Trends:
- Indian courts have traditionally been conservative on prenups, mostly rejecting agreements that affect personal marital rights.
- Some recent family courts in metropolitan areas like Delhi and Mumbai have started viewing prenups as evidence of intent, especially in property matters.
- There is ongoing debate and discussion in India about the potential need to formalize prenups, considering increasing divorce rates and changing marital dynamics.
- The government and legal experts have expressed that further research and a clear legislative framework would be necessary for formal recognition.
Conclusion: Indian Contract Act prenuptial
In India, Prenuptial Agreements are not legally enforceable per se, but they are not entirely void either. Their validity depends on compliance with the Indian Contract Act, personal laws, and public policy considerations.
With increasing global exposure and evolving family structures, India may soon witness formal legal recognition of such agreements to ensure fairness and clarity in marital relationships.