Is Indian society ready for Prenuptial agreement

By Ritik Agrawal•June 15, 2024•4 min read•105 views

Ayush Kumar Singh,

Netaji Subhash University

Introduction

“At present as well as any time, the center of gravity of legal development lies not in legislation, not in the juristic decision, but in society itself.” ~ Elrich. This quote by Jurist Elrich clearly demonstrates the connection between law and society. The law cannot be made in isolation; while making law we always need to consider society. The sociological school of jurisprudence analyzes this relationship between law and society. Roscoe Pound, one of the most prominent jurists of the sociological school, states the purpose of law is to bring maximum satisfaction and minimum friction. But let's just ask the fundamental question: what should dictate the law-making process, the popular perception or constitutional morality?

I think law should be made on the basis of constitutional morality and law should be the tool for changing the wrong popular perception. One of the jurists, Niklas Luhmann, also said the same thing, that human life is collectively shaped by law directly or indirectly. Society takes time to accept the law, but certainly, things change. For instance, the Hindu Succession Act was amended in 2005 and gave coparcenary rights by birth to women in property of Hindu undivided families. This legislation is based on constitutional morality and gender equality. This legislation also faced heavy backlash because we live in a patriarchal society and giving women equal rights as men will face opposition.

To illustrate my point further, let me cite a judgment in Nalini Rajan vs. State, where the Patna High Court stated that although a woman is a part of a Hindu undivided family, she cannot be a coparcener, even after having our constitution which clearly prohibits discrimination on the basis of caste, creed, gender, race, religion, etc., under Article 15. This clear discrimination was happening, and I am not pointing fingers towards the Hon'ble High Court, it's just following the law. So this amendment is actually pro-constitution but it faces backlash from the society because of deep-rooted biases. But we cannot stop making progressive law just because society doesn't want it. We have to make laws and educate people about their rights, and eventually, they will accept it. Of course, acceptance will take time, but things will change.

The topic I will be dealing with in this article is also controversial in social and legal contexts, but it's important. The prenuptial agreement gained significant attention globally, especially in developed countries, and now Indians also need to look into this topic. Here, the key issue I will be dealing with is, whether Indian society is ready for a prenuptial agreement?

Prenuptial Agreement: Overview

Definition and Scope: A prenuptial agreement, commonly known as a prenup, is a contractual agreement between couples entered into before marriage, addressing issues such as asset division and child custody in the event of divorce. It allows couples to outline their rights and responsibilities in advance, potentially reducing conflict in the event of marital dissolution.

Enforceability in Developed Countries: Developed nations like the USA and UK have established legal frameworks for prenuptial agreements, ensuring transparency, equity, and fairness in marital agreements through legislation such as the Uniform Premarital Agreement Act in the USA. These laws provide clarity and predictability for couples entering into prenups, enhancing their enforceability and effectiveness.

Evolution of Prenuptial Agreements: The growing financial independence of both men and women has fueled the need for prenups, reflecting changing societal attitudes towards marriage and divorce and the necessity for legal mechanisms to safeguard the interests of both parties. As individuals seek to protect their assets and interests, prenuptial agreements have become more common and accepted as a practical tool for managing marital finances and responsibilities.

Social and Legal Complexities in India

Cultural Context: India's deep-rooted societal values, particularly regarding marriage, pose significant challenges to the acceptance of prenuptial agreements. Marriage is often viewed as a sacred institution, and divorce is stigmatized, especially within Hindu culture. The emphasis on marital unity and family harmony may deter couples from considering prenups, fearing social judgment and ostracization.

Legal Landscape: While Hindu law exhibits elements of both contract and sacrament, with the Hindu Marriage Act of 1955 reflecting a blend of traditional and progressive concepts, the acceptance of prenuptial agreements remains limited. The legal system is influenced by religious and cultural norms, making it challenging to introduce secular concepts like prenups that may conflict with traditional beliefs.

Judicial Perspectives: Some judicial observations suggest the need to make prenuptial agreements compulsory in India to address issues like false cases during divorce proceedings and ensure fairness and equity for both parties. However, the judiciary's role in shaping social attitudes towards prenups is limited, and broader societal acceptance is necessary for meaningful change to occur.

Conclusion

Divorce is isn't such a tragedy, the real tragedy is living in a bad marriage, so we need to change our perception about divorce, having low divorce rate is not some kind of an achievement, Many people suffer a lot by compromising in a wrong marriage so it's okay to get separated and start a new life. Prenup will make the entire process simple, just and equitable for both the parties. Prenups will not at all hits at sanctity of marriage it will just make process streamlined. So I think it's a perfect time for making prenups legal in India, legal landscape is ready for this change but the issues is society but law cannot be made to please the popular perception law must be based on constitutional morality and every progressive legal shift will face a social backlash but eventually society will accept it according to its own pace. Seeing the in fedile nature of today's relationship prenups become more pertinent. So we need to learn from USA and UK and most take steps in this direction. Ensuring transperency and consent of both parties and making things just and equitable is a need of an hour.

References

Topics:

Constitutional Prenuptial Uniform Permarital Agreement Divorce