Pre-Nuptial Agreements In India: An Idea Ahead Of Its Time Or A Practical Necessity?

Yet, despite this discomfort, pre-nuptial agreements are no longer a fringe concept. As social realities evolve and marriages increasingly intersect with questions of property, business interests, inheritance, and financial independence, prenups are slowly entering legal conversations in India albeit without formal statutory recognition.

What Are Pre-Nuptial Agreements?

A pre-nuptial agreement is a contract entered into by parties before marriage, setting out how assets, liabilities, income, and financial responsibilities will be dealt with in the event of divorce, separation, or sometimes death. In several jurisdictions, such agreements are routine and legally enforceable, subject to fairness and disclosure requirements. In India, however, the position is far less straightforward.

Absence of Recognition Under Matrimonial Laws

Indian matrimonial statutes such as the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954 do not recognise pre-nuptial agreements. Courts have traditionally been wary of agreements that appear to anticipate the breakdown of a marriage, often treating them as contrary to public policy.

This approach is rooted in the belief that marriage should not be reduced to a commercial arrangement. Agreements that seemingly encourage separation or attempt to limit statutory rights particularly maintenance have therefore been viewed with caution. As a result, prenups have never found explicit acceptance within the framework of Indian family law. However, it would be inaccurate to conclude that Indian law treats all pre-nuptial agreements as void or illegal.

Prenups and the Indian Contract Act

While matrimonial laws remain silent, the Indian Contract Act, 1872 offers a different lens. Like any other agreement, a prenup may be examined on the touchstone of contract law free consent, lawful consideration, and a lawful object.

Indian courts have, in multiple instances, indicated that agreements between spouses are not invalid merely because they relate to marriage. What the courts have consistently guarded against are agreements that are unconscionable, one-sided, or that attempt to contract out of statutory protections, particularly those meant to safeguard economically vulnerable spouses.

Where a pre-nuptial agreement is voluntary, fair, and limited to financial arrangements such as separation of assets or treatment of pre-existing property it may not be struck down outright. While such agreements may not be enforceable in the strict sense under matrimonial law, they can still carry persuasive value and may influence judicial decision-making in property or financial disputes.

The Legal Grey Area Surrounding Pre-Nuptial Agreements

The legal position of pre-nuptial agreements in India remains uncertain, largely because matrimonial laws do not expressly recognise them. Indian family law has traditionally prioritised statutory protections and social welfare considerations over private financial arrangements between spouses. As a result, pre-nuptial agreements do not operate as binding instruments in the same manner as they do in several other jurisdictions. That said, this absence of recognition does not automatically render such agreements illegal or meaningless. Their relevance is often assessed indirectly particularly when they deal with financial arrangements, property ownership, or the intention of parties so long as they do not attempt to undermine statutory rights or fundamental obligations arising out of marriage. This places pre-nuptial agreements in a legal grey area, where their value lies more in their persuasive and practical utility than in strict enforceability.

Changing Social Context

The renewed interest in pre-nuptial agreements cannot be understood without acknowledging changing social realities. Marriages today often involve individuals who are financially independent, professionally established, and sometimes entering second marriages. In many cases, one or both parties bring substantial assets, family businesses, or inherited property into the marriage.

In such situations, the absence of clarity can lead to prolonged litigation and uncertainty. Prenups, when used responsibly, offer a way to address these concerns upfront rather than in the emotionally charged aftermath of a marital breakdown.

Importantly, the growing acceptance of prenups does not necessarily reflect a lack of faith in marriage. Instead, it reflects a desire for transparency and realistic planning—values that are increasingly shaping modern relationships.

The Role of Lawyers in Drafting Responsible Prenups

Given the uncertain legal position of pre-nuptial agreements in India, careful drafting becomes crucial. This is where lawyers play a significant role.

A well-drafted prenup must avoid sweeping clauses that attempt to pre-determine outcomes under matrimonial law. Instead, it should focus on clarity regarding assets, debts, and financial expectations, while remaining sensitive to fairness and equity.

Lawyers also ensure that both parties enter into the agreement with full knowledge and independent legal advice. This reduces the risk of future challenges based on coercion, fraud, or undue influence. In many ways, the value of a prenup lies not just in its enforceability, but in the process through which it is negotiated and drafted.

Practical Utility Despite Legal Uncertainty

Even without full legal recognition, pre-nuptial agreements serve a practical purpose. They document mutual understanding at a time when relations are amicable, rather than leaving everything to be decided in adversarial proceedings later.

Courts may not treat prenups as binding in every respect, but they do not operate in a vacuum. A fair and voluntarily executed agreement can provide useful guidance and context, particularly in disputes relating to property or financial arrangements.

Judicial Treatment of Pre-Nuptial Agreements in India

Indian courts have historically examined pre-nuptial agreements with considerable restraint, reflecting the view that marriage is more than a contractual arrangement. Early judicial decisions such as Tekait Mon Mohini Jemadai v. Basanta Kumar Singh (1901) treated pre-marital agreements anticipating separation as contrary to public policy, reinforcing the sanctity of marital obligations. At the same time, courts have not adopted a uniform rejectionist approach. In Pran Mohan Das v. Hari Mohan Das (1925), the Calcutta High Court upheld a pre-marital financial promise connected to marriage, recognising it as a valid arrangement rather than an immoral bargain. More recently, family courts have clarified that while prenuptial agreements are not legally enforceable, they may still be considered to understand the intent and expectations of the parties, as reflected in a recent Mumbai Family Court decision reported in the media. A notable exception exists in Goa, where the Portuguese Civil Code permits spouses to determine matrimonial property regimes prior to marriage. These judicial developments indicate a cautious but evolving engagement with pre-nuptial agreements in Indian law.

The limited judicial engagement with pre-nuptial agreements is illustrated by the decision of the Bombay High Court (Goa Bench) in Sunita Devendra Deshprabhu v. Sitadevi Deshprabhu (2016). The case arose out of a family property dispute in which reference was made to a pre-marital agreement executed in 1951, under which the spouses had agreed to a regime of separation of assets. While the High Court did not examine or pronounce upon the legal validity or enforceability of the agreement as a prenuptial contract under Indian law, it took note of the agreement as part of the factual matrix while adjudicating competing claims to property. The judgment is significant not because it affirms the enforceability of pre-nuptial agreements, but because it demonstrates that Indian courts may, in appropriate cases, consider such agreements as indicative of the parties' intentions, without allowing them to override statutory rights or established principles of matrimonial law.

Comparative Perspective: Learning from Other Jurisdictions

A brief comparative glance is instructive. In several jurisdictions including the United States, Canada, Australia, France, Germany, and Singapore, pre-nuptial agreements are expressly recognised, subject to safeguards such as full disclosure, voluntariness, and substantive fairness. Even in jurisdictions like the United Kingdom, where prenups are not formally binding, courts accord them significant weight if they are freely entered into and do not result in manifest injustice. The underlying rationale is not to weaken the institution of marriage, but to acknowledge individual autonomy and provide certainty in financial arrangements. India's continued reluctance to expressly recognise pre-nuptial agreements stands in contrast to this global trend. As Indian marriages increasingly involve complex financial realities, a calibrated statutory framework rather than outright silence may offer better protection to both parties while preserving the core values of matrimonial law.

Pre-nuptial agreements remain a legally unsettled concept in India, positioned at the intersection of traditional matrimonial values and evolving notions of individual autonomy. While they lack express statutory recognition, they are not inherently void and may hold relevance under general contract principles.

As Indian society continues to change, the law too is being nudged slowly but unmistakably towards accommodating new realities. Prenups, when drafted with care and fairness, need not be seen as an attack on the institution of marriage. Instead, they may be understood as a pragmatic tool aimed at reducing uncertainty, conflict, and prolonged litigation.

Whether Indian law will eventually accord them formal recognition remains to be seen. For now, pre-nuptial agreements exist in a grey zone neither fully accepted nor entirely rejected but increasingly difficult to ignore.

Preeti Singh is an Advocate & Partner at PS Law Advocates & Solicitors, Offices in Delhi and Mumbai . Views are personal.