Too early to give prenuptial agreement legal backing: Govt

Ruling out any immediate change in law to recognise prenuptial agreement, the government has taken a view that it’s an “urban concept” and “too early” to give it a legal backing.

The government’s position emerged from a stakeholders’ meeting on Monday called by the Union women and child development ministry to deliberate on whether such agreement should have a legal standing. Officials who attended the meeting said the law ministry’s representatives also were not in favour of legalising prenup agreements.

“It is too early to reach a conclusion on this matter. One of the suggestions given was to amend the Special Marriage Act to allow prenuptial agreements to be registered if a couple wants their rights to be pre-determined before marriage. We will have to assess its feasibility,” said WCD secretary Rakesh Srivastava.

Prenuptial agreement is common in western countries, where couples enter into a contract before marriage. The contract spells out details of how the property will be divided, guardianship rights etc. in case of divorce. Gender right activists see such agreements as beneficial to women as it protects their right and cuts down litigation in case of dissolution of marriage.

The general view in the meeting, Srivastava said, was that such agreements are an urban concept. “Many of the stakeholders expressed apprehension that it might result in women getting deprived of her other rights such as Stree Dhan,” he added.

The WCD ministry has decided to set up a group to study the Goa law, which recognizes pre-nuptial agreement, and see its feasibility. Goa is the only state in India, which provides for such an agreement in its family law but it’s hardly used, said a senior WCD ministry official who did not want to be named

Besides senior officials from WCD and law ministry, the meeting was attended by advocates Prashant Mehndiratta and Anu Narula, activist Flavia Agnes and representatives from Un-Women and National Law University.

The suggestion to amend the Special Marriage Act came from Delhi high court advocate Prashant Mehndiratta, who said that people who want their rights to be pre-determined before marriage, should be given a choice. “Having such an agreement helps in cutting short litigation. But there has to be adequate safeguards to ensure that a woman is not deprived of her natural rights under personal laws,” he said.

Feminist scholar and women activist Flavia Agnes said it’s premature to talk of pre-nuptial agreements without amending personal law that does not treat marriage as a contract. “How do you contract for a marriage under the Hindu Marriage Act? Wherever there is a statute, it can’t be undermined by a contract, it can only be improved,” she said.

Agnes too was the view that the only way pre-nuptial agreement can be given a legal backing is by amending the Special Marriage Act which treats marriage as a contract.