They do not stand scrutiny of law, according to legal experts
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
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.
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.
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.
the federal laws in the West which provide for such an agreement.”
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
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.
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.
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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