Are prenups valid in india??

Dear Manas,

It's good that you are on the guard so early. Though one wishes for things to remain good, but you can expect the worst from legal system if your relationship runs into trouble. A validity of a pre-nup depends on what is it that you require it to provide. Hence let me first kno wha your concerns are. 

Let me tell you Pre-nups are rare in India, they are taken as ordinary agreements, but if in a pre-nup the woman agrees to give up her legal rights for eg to file 498A if such situation arises, the court is likely to strike off such an agreement as opposed to public policy of India and as an agreement by which a party gives up his or her legal remedies is considered void. 

Feel free to talk !

Only one way to avoid fake 498a in india

"DO NOT MARRY"

READ article

https://www.lawyersclubindia.com/forum/Re-Re-PRE-NUPITAL-CONTRACT-CONTRACT-MARRIAGE-15244.asp?1=1&offset=1

As such Pre-nuptial agreement has no mention in any of the matrimonial statuary provisions in India however with the atmosphere created by the few of the lawyers, police officials, bureaucrats, politicians etc. throughout the country by misleading innocent people specially the wives & their parents in filling false criminal complaints against the husbands & their parents relatives for offences of dowry demand, misappropriation of stridhan, breach of trust of stridhan, domestic violence etc., the system of the Pre-nuptial agreement has to be brought in play before the formal marriage get solemnised between the parties.

There has to be a formal written agreement duly signed & witnessed, between both parties with regard to issue of the articles being brought at the time of marriage by the wife as her stridhan, the articles being given by the husband to wife or vice versa at the time of marriage, the issue of properties both movable & immovable of both parties and its sharing during as well after (in case marriage fails) by both, issue of permanent alimony & maintenance to be provided to wife or husband as the case may be in case the marriage fails, issue of children custody, care & maintenance by both parties & the proportional distribution of responsibility & liabilities of both for the children born to them out of the wedlock, any issue relating to the matrimonial relationship like living in joint family with other relatives including parents of either of them or living as single family unit, issue relating to financial support to their individual parents 7 other relatives and terms conditions relating to the financial contribution of self as well the other partner in marriage, all such domestic issues which one can capsulize which are reason for domestic dispute & troubled marriage can be clarified in black & white before the holy wows being taken by both to unite as husband & wife.  

Marriages are fixed in heaven as the saying goes but nowadays everything is happening on Earth but a happy marriage, the disputes arise from the day of marriage talks and continues till both finally decide to separate in the Family Court, so if everyone knows that this misfortune can happen to them too anytime in future than why not safeguard their future before entering in a formal relationship.

Sorry to say but the public in general are more concerned for spending huge sum of money on big weddings but become highly miser if they have to engage a professional lawyer for drafting a Pre-nuptial agreement & assisting in other legal formalities like marriage registration, registration of the pre-nuptial agreement etc. Paying lakhs of rupees to musical band etc. hardly pinches the pocket of these socialites but paying few thousands to a lawyer for legal formalities as mentioned is always a matter of concern and discussion amongst them.

To add to the issue of Pre-nuptial agreement the issue of agreeing for not filing false cases against each other is not illegal or against the public policy but if there is a genuine case of matrimonial wrong the filling of formal complaint against the same cannot be matter of controversy by any imagination. However if the terms of such agreement mention of the mutual settlement of any matter of dispute between both with the help of a mediator, than why hue or cry to say this as against any public policy?

After all matrimonial matters concerning even these issues of criminal complaints are being referred to Mediation & Conciliatory centre of the courts, even by the Judges of the Apex court and in case an agreement is reached between the parties, the FIR/Criminal complaint is being quashed by the High Court or the Supreme Court as the case may be, if the public policy is to encourage a mediation & reconciliation between the parties, to agree not to file false criminal charges against either of them seems in an agreement going against the public policy is not correct, this not the way a broader look given to this issue of domestic dispute, not all matters in domestic dispute are issues of cognisable offence and if this was so, half the population of India would be behind the bars. This is the narrower mind set with few of our lawyer work in courts that has to be discouraged.

@Manas.  Prenuptial agreement is invalid in view of Section 28 of Indian Contract Act, 1872.

Section 28 of the Contract Act, 1872 doesn't provides that Pre-nuptial agreement are invalid or void in India, this section just provides "Agreements in restraint of legal proceedings void" which means any agreement that absolutely restrict someone to enforce his right under or in respect of any contract by usual proceedings or which limits time within which one can enforce his legal right will be void.

In a Pre-nuptial agreement the issue of legal enforcement of ones right by usual proceedings & no time limit restricting the period under which the right can be enforced can always be mentioned to clarify this doubt.

Rather this section provides for term of agreement of referring matter to arbitration and both parties abide by the decision of the arbitrator in any matter of dispute.

Like any other contract the Pre-nuptial agreement can bring the provision of arbitration in case of matrimonial dispute to enforce ones legal right that happens to be infringed by the other party, in such case where is the question of calling the Pre-nuptial agreement as void under this provision of the Contract act,1872?

Thanks all!!

So I understood Prenups validity in IPC is debateable.

Now, the question is as a would be groom...what precautions you recommend, me to take for avoiding fake 498a.

(expect this suggestion - DO NOT MARRY :P)

Manas

"To add to the issue of Pre-nuptial agreement the issue of agreeing for not filing false cases against each other is not illegal or against the public policy but if there is a genuine case of matrimonial wrong the filling of formal complaint against the same cannot be matter of controversy by any imagination."

Not filing "false cases" against each other is not illegal or against public policy but if there is a genuine case of matrimonial wrong the filing of formal complaint against the same cannot be a matter of controversy by any imagination......if the terms of agreement is in these lines no problem at all to accept pre-nuptial agreement it is entirely valid in the eyes of law.  But how far it is helpful to the parties concerned is the question, because it is true agreeing to not file "false" cases against each other is absolutely not illegal, but no one goes to PS with a presumption that she is filing a "false" case.  Ultimately whether it is a false case or genuine case will be decided by the Court only.  So, with that agreement you cannot prevent false cases because in the first place nobody would classify their cases as true or false and avoid filing presuming their case to be a false case.

In other words, if the girl has a case to file she will file.  The husband cannot argue with her, "you have signed an agreement that you will not file false case", because then girl says, "Who said this is a false case?  For me this is a genuine case only.  I will file it.".  Husband says, "I am saying this is a false case".  Girl says, "Who are you to say that?  This is genuine case only, let the court decide whether it is false case or genuine case". 

There ends the matter.  You cannot avoid disputes and filing of fase cases with that clause.

But how far that point (clause) is valid in the eyes of law is debatable.

@Vijay Raj Mahajan.  Having read your posts, I change my earlier stand :  "Prenuptial agreement is invalid in view of Section 28 of Indian Contract Act, 1872."

I do agree with your view that a prenuptial agreement can be made and also that it may that some terms of agreement may be invalid in the eyes of law, but not entire agreement itself cannot be said to be invalid in the eyes of law.  If drafted carefully it may serve the intended purpose.
 

The terms & conditions in the Pre-nuptial agreement should be such that the matter of dispute between the parties concerning, the stridhan, alimony, maintenance, custody of children, property share between both be made issues therein, not if there is dowry demand which is a criminal offence and not a matter of civil dispute between both, or act of domestic violence where either of them assault the other or use physical force causing hurt or grievous hurt to other, the criminal acts of any person cannot be a matter of agreement between two or more persons as these will be against the public policy. There cannot be an agreement between two people for doing an act of criminal offence as such agreement itself is void under the Contract Act.

When I propagate the making Pre-nuptial agreement before the marriage it is not only for saving husbands from false criminal charges but for safeguarding the interest of both parties.

There are so many cases where the wife is not provided her proper due in case of marriage failure, in order to secure her financial interest and her due share in the matrimonial property where she contribute for making it even if not by her cash but by her physical labour by taking care of the home, cooking and other household chores, taking care of children and other members of the family, making it the matrimonial home where her tired husband feel comfortable after the whole day out, etc. all these matters are made clear there in the agreement before she gives her consent for the marriage, leaves her father’s house & move to her husband’s house to make it her future matrimonial home for rest of her life, why she should not be knowing where she stands & what are all her rights which she can enforce in case of any failure of her marriage.

When a criminal charge is made by one person against the other the court decide whether the charge is correct on the basis of evidence both material as well circumstantial by ones charging & other denying it cannot be decided and there cannot be any agreement between both for not going ahead for making charges or denying it, however the person who makes charge against the other of any criminal act knows it fully well if such charge is correct or not, what is found in most of the cases concerning dowry cases that these criminal complaints are filled with a motive to extract maximum money from the husband side and in this the lawyers & policemen are equal shareholder in the financial gain made by the wife side. There may even be cases where the wife herself may not be aware what all the conspiracy is going one between her parents & these legal giants, she may be having in her mind chance of once again reuniting with her husband but because of her parents & other relatives intervention she is not able to express her real desire. The matter of dowry do exist in out Indian society also because there are so many false cases going on throughout India, the husband side want to safeguard themselves financially beforehand hence they demand lot of dowry/cash, least the marriage fails & they may have to pay the wife huge sum of alimony etc. to avoid false criminal charges, this is also one of the reason for this social crime in our society. The younger generation nowadays are least bothered for the financial issues but the elders are just counting on this issue only & it is the senior generation which only want to get involved in the false litigations etc. in order to settle the matrimonial dispute of their children forgetting the emotional injuries the young couple is going through.

Belief exposes a man or woman entering into marital relationship to a great degree of vulnerability and exploitation.  However without being vulnerable no one can have trust in the relationship with the spouse.  Being vulnerable means allowing the spouse to exploit the weakness of the other if necessary and be prepared to sacrifice.  Good faith means, being prepared to sacrifice in the process of being vulnerable, and believing that spouse is not capable of that conduct.  If a man or woman is not prepared to be vulnerable and sacrifice and experiment with life, there is no point in marrying.  Such marriage is not marriage at all.