As a writer, I have to research many things and that happens to include marital law in the US. Recently I learnt that prenuptial agreements in the US are binding by law. If the agreement clearly stipulates something – like say neither husband nor wife will ask for alimony – then that is final regardless of how fair or unfair it might be at the time of divorce. The assumption is that both parties are adults and if a valid prenuptial contract was entered into freely without fraud, then people must take responsibility for their decisions.
I found myself wondering whether activists will accept such a system in India. What if a couple signs a pre nup saying that neither person will ask for alimony or maintenance and that each will have their own finances. During the subsequent divorce if the wife has been a homemaker, courts will have no choice but to cut her loose without any financial aid because the prenup was very clear regarding this.
So my question is this – do we treat grown women as adults who are free to determine their own future and even ruin it if they wish by being foolish? I know that many laws in India are meant to protect the “poor” and “uneducated” women from exploitation, but what if such a woman signs a prenuptial agreement to her detriment with full knowledge of what she’s doing? Do we allow her to sign her future away and give her the respect she deserves as an adult along with the freedom to do with her life as she wishes?
A large portion of women’s rights deals with setting women free from “protective” institutions which ultimately seek to control them – like many parents, the moral police, khap panchayats and the like. But with freedom comes responsibility. Do we also give supposedly poor and uneducated women the right to be foolish and enter into contracts freely which might go against their best interests? Let’s assume they’re fully aware of the consequences of their actions.
As of now, I don’t see prenuptial agreements having legal validity in India. If some provisions are blatantly unfair, many of us will cry out that the woman is being exploited and step in to save her from a life of poverty and destitution. But is that a good thing? I don’t really know. On the one hand, we must allow women to enter into legally binding contracts as adults. On the other hand, many will say they need protection from being taken advantage of.
In other words, do we treat underprivileged women as true adults in every sense of the word? If not, why don’t we just abolish the concept of “reaching the age of maturity” entirely?
Adult literacy rate in India is 74%. The youth literacy rate is 84%. The “vast majority” in India can read[ as per wikipedia]. Even in Bihar the literacy rate is 63%. In India marriage is not just between two people, it is between two families.
There are huge financial transactions involved. A pre-nup would make the financial transaction one-way. Fundamentally, the bride’s family would end up spending a lot of money and in the scenario of a divorce, the groom would not have to spend a penny. Such an agreement would never be acceptable to the girl’s family from a purely financial perspective.
Moreover, no sane person would enter into marriage with such disincentives in place. If you cant trust the other person why marry at all? I guess it is a very western idea that people need to take care of every scenario before getting married. I guess they are very risk-averse and do wish to cover all eventualities. I guess in India, we are more old fashioned. Marriage does not come with any guarantees.
Besides, everybody above 18 years old gets to vote and decide their own future and the future of the country. Besides pre-nups are legal in India, according to this article in the times of india ; http://timesofindia.indiatimes.com/city/bombay-times/Its-about-my-money-honey/articleshow/1052727.cms
In reply to ramakant
No Ramakant, it doesn’t say that prenups are legal – only that lawyers were drafting them. Whether courts will uphold such agreements is another matter. Here is the prevailing legal opinion about them so far.
We can only hope that the woman isn’t emotionally blackmailed to sign away her rights…
@ Bhagwad – Prenuptial Contracts should not be allowed to let a woman sign away maintenance or child custody or give away her own earnings etc. I feel in a society where women are bullied anyway, there are many other things that should not be allowed, they should not sign away their right to stay in touch with their parents/siblings, they should not commit to work or not work. I read somewhere that Catherine Zeta Jones gets a huge amount if her husband cheats on her, now that is something Indian couples could include.
I once blogged about Prenuptial Contracts here,
http://indianhomemaker.wordpress.com/2008/08/13/pre-nuptial-contracts-in-india/
In reply to indianhomemaker
Checked out your article IHM. But see the thing is this – if unfair prenuptials are not to be allowed, are we then going to void all other legal contractual obligations because some party thinks it’s unfair? Once we start interfering in a legal contract merely because it’s unfair, that undermines the entire system of contractual law don’t you think?
In reply to bhagwad
@Bhagwad
I see IHM’s point. We cannot have a prenup for visitation rights and upbringing of children. Prenup and most legal contracts are for tangible / material things. We cannot have a legal contract saying mother will not get visitation rights for children if the marriage breaks because it is not just the prerogative of the mother to meet her child but also the prerogative of the child to have contact with the mother.
In reply to Clueless
Prenups relate only to property division, alimony and maintenance of the spouse. Children are not covered in any way whatsoever. This makes sense since a court has to decide what’s in the best interests of the child and it can’t be a discretionary exercise on the part of the parents.
This is the kind of stuff I would like to see included,
Leading Islamic organisations and clerics in Britain have done much better. Hailed as the biggest change in Sharia law in Britain for 100 years, a married Muslim couple will now have equal rights. A husband will have to waive his right to polygamy, allowed under Islamic law, in the new contract which has been described as “revolutionary”.
@Bhagwad –
1. In a society where women are required to get married by a certain age, where they have to pay to get married, and where they die to stay married, what are the chances that they will feel empowered and confident enough to be able to negotiate favorable/fair terms in their prenuptial contracts?
2. And what are the chances that the terms will be negotiated by the elders in the families just like dowry and horoscope are? Do arranged, semi forced marriages, (which are extremely common in India) and prenups go together?
3. Fundamental right against exploitation should make sure if ever prenuptial agreements are made legal in India, then basic human rights of those involved are protected.
In reply to indianhomemaker
I get where you’re coming from. I really do – that’s why this is a gray issue in the first place.
So your view is that we don’t allow women to enter into contracts even after they’re above the age of 18 and that they need protection. Of course, fundamental human rights cannot be violated by any contract. But losing the right to maintenance for example doesn’t qualify as a fundamental human right…
Somehow I feel that at some point we have to let people bear the full consequences of their actions. If they’re treated like children despite being adults by their family members then we have a serious knot to untangle no?
Okay let me put it this way – don’ allow men and their parents and community etc to sign any prenuptial contracts without first creating clear guidelines about what is not allowed. They cannot ask a woman to give up her right to maintenance specially if she is not being permitted to earn, they can’t demand dowry in any other name or form like her earnings or a loan in taken in her name etc etc etc.
Women should also be treated with equal respect.
Individuals should abolish Indian Marriage Acts (Both Hindu/Muslim) and should adopt Personal Marriage laws. It will be up to the man and woman to decide their mutually beneficial rules for themselves. And once they agrees for a written contract, it should be enforceable.
I wrote about it some three years ago in 2008. That time, my English wasn’t very good (I improved a little bit). Here is that article ( Dowry The Other Facet)
Someone asked about how can a woman have a reasonable marriage contract when she isn’t aware enough and isn’t properly educated etc.
I believe that education is mostly redundant. I am a professional but whatever I studied in schools, colleges and university now seems to be total bakwas. However, lack of education may prove to be hazardous in some cases, yet the truth remains that real life is the best educator. Once the well aware and educated Indian women starts having written enforceable marriage contract, the women of other sections will also learn things while observing them.
However, in absence of the provisions of prenuptial agreements, not only illiterate but also well educated women are suffering oppression, exploitation and sincerely, Governmental Indian Penal Code abysmally failed even to restrict dowry. Furthermore, what is wrong with dowry? There should be freedom to opt for a dowry and for alimony too. It depends on the choice of men and women agreeing to marry. Governmental prohibitions not only fails, they also causes probabilities of higher crimes.
Domestic violence laws are mostly used by corrupt and fraudulent women who use them to oppress their husband while the genuinely suffering women often fail to get any benefit. I have seen cases where well educated engineer and doctors were tortured and killed for dowry. So education doesn’t save, government can’t save, laws cannot save. Evil requires the sanction of Victim!
It’s not about women, its about Individuals, be a man or woman.
Once common women will take initiative to protect and rationalize their life while adopting rational self-interest and individual rights, the poor illiterate women will also start learning and improving.
I had a marriage contract, a written agreement with my husband who encouraged me to create one. It is written but it doesn’t require any court’s or government’s approval, it is for our mutual benefit and it enshrines our personal marriage rules/laws. society or government actually have no right to interfere with it. The only problem is, if someone of us breaches this marriage contract, then how will we enforce it? There lies the real problem. You can’t expect Indian police, Judiciary and government to act honestly so going for their help is futile. I believe Indian Judiciary system should be privatized.
Anyways, that is different issue. the major thing is, until a common well educated girl won’t take initiative to claim her individual rights, the poor women will certainly fail to get any chance of development.
Hence, instead of arguing about benefits of prenuptial agreement for those women who just can’t understand their own existence, it would be better to adopt contract marriages for your own self because at least you are well aware of your individuality and inalienable rights which can be visualized only by virtue of your own rational faculty, your mind.
In reply to Unpretentious Diva
Well written Diva :)
PRE-NUPTIAL AGREEMENT IS VERY MUCH VALID IN INDIA, IT IS GOVERNED UNDER THE CONTRACT LAW AND IS 100% ENFORCEABLE BY LAW
ALL HINDU BOYS SHOULD 200% GO IN FOR PRE-NUPTIAL AGREEMENT BEFORE MARRIAGE IF THEY WANT TO HAVE PEACE OF MIND LATER ON ………… AND THIS SIGNING SHOULD BE VIDEOTAPED IN PRESENCE OF WINESSES
In reply to Sunny
Unfortunately it’s not a given that pre nups comes under contract law. This is because the law is not clear whether or not a marriage is regular contract in India.
In reply to bhagwad
“This is because the law is not clear whether or not a marriage is regular contract in India.”
Marriage =/= pre-nuptial agreement. A marriage is a civil union between two partners. A pre-nuptial agreement is an *optional* agreement entered into by the prospective spouses and independently of marriage laws. It is governed by the Indian Contract Act, 1872.
If a pre-nuptial agreement absolves a person from paying maintenance, it can be declared void subject to section 24 of the Contract Act. The statutory laws in India explicitly mandate maintenance and alimony as a spouse’s (~wife’s) legal right, which cannot be negated by an agreement. So a Hindu man trying to absolve himself of maintenance and alimony by making a pre-nup wouldn’t work, legally speaking.