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Nirali Nayak   24 June 2021

Prenuptial agreement

Dear learned counsel,

Can you please tell me what is the current status of a prenuptial agreement in India in light of public policy in India and the Supreme Court judgement in Justice K.S. Puttaswamy (Retd) vs Union of India, 2017?

Thank you



 1 Replies

Siddharth Singh Chauhan   09 July 2021

A prenuptial agreement is a written contract created by two people planning to get married. In a prenuptial agreement, both husband and wife state their assets, liabilities, insurance, and other financial aspects.

Prenuptial agreements are prevalent in developed countries, such as the US and Australia. But in India, there are Supreme Court rulings that say any contract which has marriage as an object is null and void. Therefore, such agreements are not legally tenable in India as the law doesn't consider marriage as a contract.

Taking it forward prenuptial agreements validity in India can also be understood with the major judgment about privacy that is Justice K.S. Puttaswamy (Retd) vs Union of India.

In this case, the issue of privacy was discussed at length, the scope and ambit of the right to privacy were dealt in a wider and clearer manner and this made prenuptial agreement also to be a part of the discussion. The bench declared that “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home, and s*xual orientation. Privacy safeguards individual autonomy and recognizes the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy.” A further mention about individual concerns was there stating individual concerns includes matters relating to the obligation of marriage, choice of family, etc. with the clear mention of all these it can clearly be sensed out that prenuptial agreements fall under this. Hence the provision of a future separation or no child policy all legal provisions in a prenuptial agreement as they all fall in the ambit of “personal choices” of an individual.

 


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