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?
Why only underprivileged women? A large majority of women in India are infantilised from birth, so that an ‘adult’ is not really an adult…it’s a very interesting question you’ve asked.
Are prenups illegal in India? They are just uncommon, I think, given that a vast majority of the population can’t even read, and literacy rates among women even poorer. Activists would rightly encourage women not to sign anything they can’t understand. The unfortunate consequence of these contracts becoming standard practice in a country where most women, in practice, are NOT “free to determine their own future” is that the likelihood of women being coerced into signing would be very high (just as women are coerced into giving dowry). If the matter actually went to court, the contract would not stand up in court if it could be proved that the woman was coerced. The sad thing, though, would be that most women would not have the means to take the matter to court (as it would be a civil suit and they would have to bear the costs themselves) and the lower courts are so corrupt anyway. So, for educated women prefarably with access to legal advice, sign whatever you want. But illiterate women or women who are not fully cognizant of the law (and frankly how many of us are), why should they be encouraged to do so?
In reply to The Bride
Prenups don’t have the force of legality behind them as of now because marriage isn’t treated as a contract in Indian law. Unlike in the US, there is no specific prenup legislation.
Now to the main question. Should be bar illiterate women from all contracts in general? In other words, my question still stands – do we give poor and illiterate women all the rights and responsibilities of adults?
In reply to bhagwad
Illiterate women are not barred legally from contracts, are they? It would be ideal if people could at least read before they sign something, because otherwise how can they truthfully sign that they have understood the terms and conditions. However, barring illiterate women from signing contracts would preclude them from ever buying property, for example, so I guess they would have to be given rights to enter contracts and one would hope they find someone honest to act in their interest. Or that they learn to read before they sign anything.
I don’t see how poor or rich has any bearing. It’s about whether one has to capacity at the very least to read a contract for themselves. If you can’t even read, how can you even start to understand. But my answer to your question would finally be – yes, they should be allowed to sign whatever contracts they wish.
Now to prenups, if they are not common practice, well and good, as they can only work to the disadvantage of the majority of women in India. If they start making an appearance, then women who are vulnerable to such contracts being used against them, should be actively encouraged to avoid them. The right to a prenup is not a right that is really going to help the majority of women so why would one be bothered to agitate for it, no? For example, if one was to be given the right to drive but one was quite sure that one would pretty much be made to be the chauffeur of all and sundry for free, you’d rather sit quiet and not go fighting for the right to drive.
Even if there is no prenup legislation in India, it can still be undertaken under general contract law, can’t it? Marriage laws differ as per community in India. I am not an expert, but when we studied the different marriage laws in Sociology in college, it seemed like the Muslim marriage law was quite contractual – there are provisions for return of mehr/bride price, alimony to be paid etc.
In reply to The Bride
Just thought of something – illiterate women could get someone to read the contract to them…swearing under oath that what they are reading is what is written only (not sure who would want to do this… but for a fee maybe) and what they are reading could be recorded. Then, if people say stuff that isn’t in the contract, then they can be prosecuted later…however, since most of these women can’t afford to go to court, and the courts are corrupt, it wuld be of no use. But better than nothing. Hopefully, they can afford the recorder / fee for reading.
In reply to The Bride
Agreed with what you say – we can’t bar illiterate adults from contracts and so all the attendant evils come into play as well. But what to do?
Prenups indeed have a dubious legal status in India. Apparently lawyers aren’t sure about this since there are varying interpretations. No case has gone to court where the terms of the prenup needed to be enforced against the wishes of one of the parties. Until that happens, we won’t know for sure…
In the US however, the terms of the prenup are binding. Separation agreements however can be overturned by courts if the court feels that they’re too unjust to one party or the other.
How would one know that women who can’t (i.e. not allowed to) even choose who to marry/date/talk to, how much dowry to give or not to give, how many children to have or not to have, will suddenly be able to decide that they want no maintenance although they have spent all their productive years in child/elder/traditions care?
If prenuptial agreements are legalized in India some basic guidelines will have to be followed – to prevent forced marriages with forced prenuptial agreements – (dictated by the groom’s family).
I think Indian women are as matured as the rest of the Indian society, and the Indian men they marry.
In reply to indianhomemaker
Agreed IHM. So what do you think – should such women be given all the rights of adults, or do they need to be babied?
Should we do away with the age of majority for such women entirely? And how do we define “such women?”
The implementation part will probably the hardest and of course the mindset change for parents and society to see and treat an adult women as true adults who are capable of making decisions and taking charge of their lives.
On the other hand, you are absolutely right about women themselves taking some responsibility for their lives in spite of the conditioning. The ones that survive and do well in spite of the system are the women who have the guts to rebel and take a stand. It helps if parents are supportive and broadminded.
In rural cases where women are not educated, this will not matter either way and will be irrelevant.
In my opinion, before anything else, women should strive to be financially independent before committing to something like a marriage.That is the first important step in even understanding what their self worth is and then they can decide if they want alimony or not.
In reply to BB
I agree that women should strive to be financially independent before marriage. But given that this doesn’t happen in most cases, what do we do?
How do we treat a woman once she turns eighteen? Do we insist on knowing what’s good for her, or do we give her freedom which is up to her to handle?
@ Bhagwad – Generally they are not allowed to keep what they earn or own something even if it is bought in their name to save on taxes etc. Some families also take loans in the name of working daughters in law.
A very small percentage of women in India takes independent decisions.
In reply to indianhomemaker
True. And so do we treat other women as capable of taking independent decisions?
//How do we treat a woman once she turns eighteen? Do we insist on knowing what’s good for her, or do we give her freedom which is up to her to handle?//
Provide education and opportunities, make it possible for women to avail of those opportunities.
A lot would change if the society stops seeing Getting and Staying Married as women’s only goal in life. Once the fear of not getting married if they did a million things they could and should, is gone the change will be very fast.
Improving rates of successful divorces which bother those who prefer to see women giving up living to save the Indian family are actually an indication that women do have options and they are coming to see those options now…
And anyway if a woman is old enough to get married she is old enough to choose who to marry too.
About Prenuptial contracts – the worry is not what women will sign on their own, but what the elders in arranged marriages would make them sign – to save dowry for example or to make sure they stay in Joint Families etc.
In reply to indianhomemaker
You’re right IHM – education and opportunities and a change in mindset will of course help women in the future.
My question is how should the law currently treat adult women – as capable or incapable of entering into a contract?
Also, how do we determine if she was coerced? Such a thing may be impossible to prove.
My question is what should the law currently allow?
@ Bhagwad: There is no quick fix for this question. In the absence of financial independence and assertiveness from women, the parents and society will continue to treat women like kids and make all their decisions for them.In the current Indian marriage system(mainly arranged marriage) prenup is pointless and will not mean much.
In reply to BB
It’s true that parents and society continue to treat women like kids.
Should the government and the law do the same?
The law treats women over 18 as adults the same way as it treats men. Marriage is also a contract if entered into through special marriage acts. These are rarely used – so for the marriages under these Acts, since people have to opt (make a conscious choice) to get married this way, a pre-nup is totally doable.
The question of a pre-nup only arises in privileged backgrounds where there’s property to worry about. So a basic level of education can be assumed in a majority of cases. All laws will be abused – whether they are or not is in our hands, so as much as that works in other laws, it will work in this too.
Laws are generally much better to women than society is….all abuse, all fear of abuse arises from society, rarely from legislation.
In reply to Sangitha
Looks like we have no choice but to allow the women to enter into such contracts – no matter how unfair they may seem to us.
I think individuals should be given a choice about their right to be treated as adults. They should be allowed to understand their rights and responsibilities and then sign a document that they are ready for adulthood.
If a person refuses to sign such a document, then they will be treated as children (except in the case of crimes) and will be assigned guardianship. What they earn will not be theirs nor will they be able to vote. They will not be able to avail the various benefits of being an adult in a democratic nation.
However, implementing this on such a large scale might be a huge issue. And then, in the rural areas where citizens don’t enjoy the privileges of being an adult anyways, the scheme may not hold too much charm for them
In reply to Clueless
You know, I’ve often thought the exact same thing. In my version, every person must sign a document saying they agree to be follow the laws of the land and accept responsibility for their actions and whatever punishments are meted out by the courts.
Those who don’t agree to sign can be sent to a “no man’s land” where the laws of India (or any other country) don’t apply and where they are free to do as they wish :)
Heh. Why should people be given a choice whether to grow up and take responsibility for their actions? Where are all these guardians to be found from? And how do you prevent people from being forced to agree to guardianship?
Every society decides an age at which they think people should be ready to take responsibility for their own actions and understand the consequences of breaking the law. Maybe every citizen should be a given a crash course in the law to give them an opportunity to understand better. But as it stands, ignorance of the law is no defense (i.e. you cannot commit a crime and say ‘but I didn’t know it was illegal’) and so people should make attempts to understand the law themselves.
In reply to The Bride
But yet the state takes trouble to babysit citizens well past the age of majority. For example, Maharashtra’s stupid ban on alcohol until 25! It’ll never stand up in court but it’s an indication of the mentality.
Sometimes it tries to prevent women from being exploited even though legally they’re fully responsible for themselves…