Critical Analysis of Marriage and Divorce in India

Abstract

Marriages in India, as opposed to western countries, have always been a religious and sacred event that was looked upon to creating an inseparable bond between a man and woman. However, in the recent years, divorce rates in India are increasing; thus giving way for expectations from both parties to claim what was or is rightfully theirs on account of separation.

In the light of this statement, it is henceforth significant to acquaint oneself with the rising trend in India – Pre & Postnuptial Agreements.

Many of us are familiar with the concept of Prenuptial Agreements (Prenups/Ante nuptial agreement ) (Ed.) or have heard of this term in relation to marriages solemnized in western countries. On the other hand, the trend of contracting post nuptial agreements has just recently seemed to have shot up in India. This is because the downside of prenups; which was the fact that it encouraged dissolution of marriages could be curbed by the post nuptial agreement. So spouses are still given the chance to sort out a financial plan for themselves even after their separation.

This research paper, by the way of analysis of case laws, will further provide an insight into the validity of postnuptial agreements in India; through which one can also note the interesting intersection between matrimonial and contract law.

Introduction

Postnuptial agreements, common in western countries are only gaining popularity in India now. A postnuptial agreement is a legal document designed for married couples. Similar to a prenup, it establishes how the couple’s assets will be divided in the event of a divorce or legal separation and most importantly the amount of maintenance that one spouse would pay to the other. A further clause may also be added that the party receiving such maintenance may not ask for more. However, if such party has agreed not to ask for further maintenance but in the future, is able to prove that their circumstances have changed drastically and further maintenance is required, if he or she can prove the same before the court, the other party may be ordered to grant further maintenance. Unfortunately, there is little precedents regarding whether or under what terms post nuptial agreements are enforceable.

The main question that arises is whether these post-nuptials are mere agreements or contracts as per the Indian Contract Act, 1872 (hereafter referred to as ICA) and if they do come under the purview of section 10 of ICA, are these contracts against public policy according to section 23 of the ICA.

The main ideology to marriage as is in the minds of many Indians is that a married couple becomes a single unit and ideally, a single person or entity cannot enter into agreements with itself (legal nature, 2019). Thus, post nuptials are classified as agreements rather than contracts. However, any agreement as one knows it, shall be governed by the ICA, and thus would be covered by section 10 of the Act.

Section 10 of the Indian Contract Act, 1872 reads as: “All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.”

At the same time, Section 23 of the ICA states that a contract shall be void if they are formed for or out of an immoral purpose or are against public policy.

Research Methodology

The methodology used in formulating this research design is through the analysis of case laws and the subject matter arising from it during the internship experience. Data has been collected from various websites and articles from which the case laws have been analyzed and viewpoints have been made. Thus, more emphasis on secondary sources of research methods can be viewed. It is pertinent to note that there are little precedents in the Indian law governing post nuptial agreements and thus research has been based upon foreign law standings and case laws; from which reference has been made to with the Indian law.

This paper will now move on to critically evaluating and discussing the case laws; that is the research evidence in this case and providing a justification for the same.

Research Analysis

India being a country having many religions and without a uniform civil code, marriage is governed by the respective personal laws of each religion. For instance, Hindus are governed by the Hindu Marriage Act, 1955 and so even topics such as divorce shall have its own provisions. With the inclusion of a post nuptial agreement upon a divorce or separation, it leads to a diversion from the provisions of the Act.

That being said, there are still several reasons why spouses wish to adopt post nuptial agreements. (FindLegalForms)

Firstly, a couple that did not sign a prenup before marriage, which most Indian couples don’t tend to do, in the event of death or divorce may later decide to have some type of financial plan set out once they part.

Secondly, a drastic change in the financial circumstances of the couple, such as a major career change or inheritance, may alter the financial status, requiring a change in the terms of the couple’s existing prenup to reflect their current wishes. Additionally, in most cases, a post nuptial is still better than having no agreement at all, in that way, it provides more stability to the spouses on their separation.

Another point to note is that, post nuptial agreements have the potential to be a binding agreement whereas a prenup is not. Although prenups are considered and are enforceable, unlike postnuptial agreements there are not legally binding. This is because before marriage, if one party does not agree to the provisions in the proposed prenup, and the couple is unable to come to an agreement, they can just decide to not go through with the marriage. Whereas with a postnuptial agreement, the couple is already legally bound and the spouses owe a fiduciary duty to each other. *This point is not specific to India as opposing views are seen in India regarding this statement*.

Focusing on India, the majority viewpoint regarding prenuptial agreements is that they are neither legal nor valid under the marriage laws; this is because, as mentioned earlier, most Indians do not consider marriage as a contract. A marriage is more often than not treated as a religious bond between a man and a woman and in such a case, prenuptial agreements don’t find much social acceptance. Therefore having paved the way for this research paper to shed more light onto postnuptial agreements and to see their validity in India.

However, it must be noted that prenuptial agreements are governed by the ICA and the Indian courts do take cognizance of it if both the parties mutually agree to it and sign it voluntarily, without any undue influence, threat or force.

Not to forget, Goa is an exception to this concept as it is the only Indian state where a prenuptial is legally enforceable, as it follows the Portuguese Civil Code, 1876.

Last but not the least, the risk in a postnuptial agreement that can be noticed may be in exploiting power imbalances.

Calculated exploitation by the financially stronger party is only one of the dangers of marital agreements. Both pre- and postnuptial agreements are also subject to the parties’ cognitive limitations to bargaining, such as excessive optimism and the discounting of future benefits. (Eisenberg)

In the case of Purshottamdas Patel vs Rukmini & Ors the main issue in the appeal was to determine whether the post nuptial agreement was valid or not. Here, the husband and wife (Rukmini) entered into a post nuptial agreement wherein upon their separation, the husband agreed to provide for her maintenance by setting apart one share worth 1000 rupees in the New Cotton Mill in Ahmedabad. This agreement was made on the consensus that the wife shall waive her right to claim maintenance from any other property belonging to the husband.

Few years down the line the wife had filed a suit for increased maintenance but that was dismissed. Upon the husband’s death, he confirmed the same about the post nuptial agreement in his will. After his death a suit was filed on behalf of his daughters for administration of the property, to this suit, the wife was also made a party and she did not question the dispositions under the will nor did she claim for a higher maintenance. However, 11 years after the husband’s death she files for another suit for increased maintenance, claiming for 605 rupees more from a fund set aside which was not under the terms of their post nuptial agreement. It was on the grounds that the income available was insufficient to meet her needs and that the estate of her husband could afford paying more to her on the same scale as the co-widows.

In the first appeal, the trial judge ruled in favor of the wife and held that the husband could not restrict by his will, the wife’s right to reasonable maintenance under Hindu Law. Thus, allowing for the wife’s claim for maintenance.

The present case represents the second appeal by the executors of the husband. Their main contention was based on the principle laid down in the case of Mohieswara Rao vs Ayya Devara Durgamba wherein an agreement between a widow and coparceners of her husband to receive a fixed maintenance per annum and not to claim increased maintenance in case of change of circumstances is valid and binding. Although the agreement in this case is distinguished as it is between the husband and wife, the correctness of the principle upon which the agreement with the husband’s heirs was upheld cannot be doubted. Therefore, the post nuptial agreement shall act as a bar to the wife’s claim (Purshottamdas Patel vs Rukmini & Ors:Validity of post nuptial agreement).

Additionally, there was an indication in the will of the husband that the respondent had failed to the perform her duties as a wife. Thus, she could not be treated on the same level as the other co-widows. Also, there was no satisfactory proof that her needs had substantially increased for allowing her claim. Not to forget, the wife did not contest to the will in the administration suit, therefore she had forfeited her claim then itself. Owing to these reasons, the judge upheld the validity of the post nuptial agreement which was a bar on the wife’s claim to increased maintenance.

Another notable case is that of Sandhya Chatterjee vs Salil Chandra Chatterjee . Through this case, it was found that an exchange of letters between the husband and wife made for an enforceable post nuptial agreement.

Here, the wife had filed for a suit for separation, during the pendency of the suit, the husband wrote her a letter stating;

• a) 260 rupees shall be paid to the wife and son for maintenance and educational expenses.
• b) 90 rupees shall be paid to the daughter for her maintenance and educational expenses.
• c) 55% of his bonus shall be provided to her annually.
• d) He shall bear the marriage expenses of the daughter provided the groom is approved by him.
• e) 500 rupees in December and 250 rupees in March shall be given to the children out of love and affection.

Any increase or decrease in the maintenance shall be adjusted the fluctuations in his salary.

In consideration for all these, the wife agreed to withdraw all allegations and charges made against him and even filed a petition for dismissal of the suit. But according to the wife, only some of the aforesaid payments were made, ultimately the respondent stopped making payments and a legal notice was sent to him for the recovery of arrears of maintenance.

The respondent contended on the grounds that the agreement was opposed to public policy and such is void and also that the letter written by him was a mere offer to do the above mentioned things if the wife had carried out her obligations.

The court relied profoundly upon the case of Tekait Mohini vs Basanta Kumar Singh wherein it stated that because the wife did not reside with the husband in spite of a non-existence of any judicial order to that effect, the contents of the husband’s letter were not enforceable. This was because in the above cited case it was held that it was the duty of every Hindu wife to reside with the husband wherever he might choose to reside as it was the rule of the Hindu law. But in contention to this, the counsel for the appellant stated that according to Section 18 (2) clause (g) of Hindu Adoptions and Maintenance Act allowed for the wife to claim maintenance and live separately if there is any other cause justifying her living separately other than the grounds mentioned in section 18 (2). Considering the fact that the estrangement between the husband and wife is final, it is just and desirable that they live separately.

Another notable contention brought about was the contract being opposed to public policy. But in the judgement, justice Ghosh observed that contracts providing for present and immediate separation (post nuptials) are valid as it is necessary for the preservation of peace and representation of families while on the other hand agreements for future separation (pre nuptials) are opposed to public policy. Thus, giving some value to post nuptial agreements but nevertheless not being enforceable before a Court of law. (Sandhya Chatterjee vs Salil Chandra Chatterjee)

Having seen the unpredictable acceptance of post nuptial agreements in India, there exists a completely different stand in U.S. regarding the same. The landmark case of Bratton vs Bratton related to a divorce proceeding, which was to determine whether postnuptial agreements are contrary to public policy and if not, whether the postnuptial agreement entered into by the parties in the case is valid and enforceable (Bratton v. Bratton). The court held that postnuptial agreements were not contrary to public policy as long as there was consideration for the agreement, it was knowledgeably entered into, and there was no evidence of fraud, coercion or duress. However, the agreement between the parties in this case was invalid because it lacked adequate consideration. The consideration being Ms. Bratton’s promise to forgo a career as a dentist; did not constitute consideration as it is a vague and illusory promise. Furthermore, the trial court noted, Ms. Bratton made the choice to forego a career in order to stay home and support her husband at the time of the marriage, which was prior to any agreement being signed. By basing the agreement on a promise or decision that the wife had already made when entering into the marriage, Ms. Bratton is essentially trying to use past consideration to support a present contract, which the Court had long held to be inadequate consideration.

Thus, two contrasting observations can be shaped from the above case in contrast to Indian law:

1. U.S. Courts clearly uphold the validity of post nuptial agreements provided their required conditions are fulfilled where as in India, the situation is still quite unpredictable as not many cases have come up in court as regards post nuptial agreements and the existing few are decided based upon the facts of the case.
2. There is a clear distinction regarding the acceptability of past consideration. In the U.S. past consideration is inadequate consideration, whereas in India, it is valid.

Conclusion

After thorough analysis of the case laws and articles, I am of the view that the Indian courts do not uphold the validity of post nuptial agreements but have considered it in trivial cases as discussed above for the purpose of having a peaceful marriage settlement.

As clearly mentioned above by learned judges; that an agreement for present separation in certain cases is ideally preferable as the times change in order to maintain peace and harmony among families.

At the same time, post nuptials are still known as agreements and not as contracts and the same is visible in the language that the courts have used when handling the cases and pronouncing their judgements. However, as of now, the fact that these agreements are being able to or have been able to be noticed by the courts is a good enough stand and improvement in the legal system.

Also, it is found that the legal position of courts accepting the validity of post nuptial agreements is different in different states of the U.S. In England and Wales, both pre-nuptial and post nuptial agreements are not legally binding. However, a landmark case (Radmacher v Granatino) ruled that courts should uphold a pre-nuptial agreement if it is fair – and it would follow that a valid post-nuptial agreement should also be upheld. (Rocket Lawyer)

This research paper has provided clarity to the concept and nature of post nuptial agreements in India. Even though the personal laws for each religion push through in the light of sensitive matters of divorce, separation and maintenance; post nuptial agreements are also a manner in which spouses can act upon.

The validity of a post nuptial agreement can only be sustained if certain conditions are satisfied. These are;

1. Both spouses should have sufficient time to fully consider and understand the terms of the post-nuptial agreement before committing to it.
2. Both spouses should be aware of all information necessary to allow them to fully consider and understand the terms of the post-nuptial agreement.
3. Both spouses should receive separate and independent legal advice.
4. Neither of the spouses were coerced or under any undue influence in signing the agreement.

References

1. Bratton v. Bratton. No. 136 SW 3d 595. Tennesse Supreme Court. 2004.
2. Ed., Black’s Law Dictionary 4th. Antenuptial. n.d. October 2019 .
3. Eisenberg, Melvin Aron. ‘The Limits of Cognition and the Limits of Contract .’ (1995).
4. FindLegalForms. india.findlegalforms.com. 2019. .
5. legal nature. Everything You Need to Know about Postnuptial Agreements. US, 2019.
6. live mint. Non-marriage very rare in India but divorces doubled in past two decades. New Delhi: Neetu Chandra Sharma, 25 Jun 2019.
7. Purshottamdas Patel vs Rukmini & Ors:Validity of post nuptial agreement. No. AIR 1937 Bom 358. Bombay High Court. 2 December 1937.
8. Rocket Lawyer. Rocket Layer. 2019. .
9. Sandhya Chatterjee vs Salil Chandra Chatterjee. No. AIR 1980 Cal 244. Calcutta High Court. 15 April 1980.