The Hindu : New Delhi News : Instances of pre-nuptial agreement on the rise

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Sunday, Oct 28, 2007
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New Delhi

Instances of pre-nuptial agreement on the rise

They do not stand scrutiny of law, according to legal experts

New Delhi: The romantic notion that matters of the heart dictate marriages is set to take a beating in modern India. A very small but selected group of urban people would prefer to be smart and sure before they prepare to tie the knot, by signing a “pre-nuptial agreement.”

When Saira Decosta, a consultant and her boyfriend Ashok Das, a call centre executive based in Bhubaneswar, decided to marry, they laid out their individual investments, property inheritances and the joint finances they were set to embark on. For, they reasoned, if the marriage ever fell part, they would know what was at financial stake.

The couple represents a trend of “pre-nuptial agreement” or pre-nups that could redefine the laws of marriages in the not so-distant future, as they are on the rise among affluent urban couples. It is a trend that has been borrowed from the West where couples divide their finances, well before they go ahead with wedlock.

But legal experts caution that agreements of the kind would have little bearing in Indian courts. Says Janmejaya Das, advocate Orissa High Court, “Any agreement opposed to public policy is not tenable. A pre-nup cannot be executed in a court.

It is the federal laws in the West which provide for such an agreement.”

Whether legal or not, the trend seems to be catching on. Last month, Mr. Das rejected two proposals of drafting “pre-nup agreement” forms of prospective couples. In another incident, a businessman based in Singapore could not find an advocate to draw up a contract for him, he alternatively chose South Africa as his destiny, as law their permits the concept of “pre-nup agreement.” Everybody is not convinced with the concept that “pre-nup-agreement” is the solution to bitter financial wrangles, couples seeking a divorce often get trapped too.

The flip side

Advocate Manoj Kumar, Orissa High Court, argues that with a “pre-nup agreement” in place, both parties to the contract could lose in the event of separation.

“The ‘pre-nup-agreement’shows couples’ financial position at the time of marriage. But since the agreement is not updated regularly after the marriage, the increase in the partners’ finances in this period lies ignored. In the event of a divorce both parties stand to lose a sizeable chunk,” says Mr. Kumar. The concept of the “pre-nup-agreement,” however, has been in existence in Muslim marriage since its inception. The Nikahnama provides a pre-condition that can be set before or even any time in the course of marriage.

Family Law Professor of Utkal University P.C. Mishra says, “Though trust and faith are basis of marriage the value system is changing and “pre-nup agreement” would be recognised by law sooner or later, as the compulsory marriage registration is accepted by courts so also this will be accepted.”-PTI

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