In most countries Spouses are entering into pre-nuptial agreements before marriage as a precaution to safeguard their assets in case of dissolution of marriage,

In India statutes do not recognize pre-nuptial agreements. However, pre-nuptial agreements are valid and binding in the State of Goa by as envisaged under the Portuguese Civil Code (“Code”) continuing in the state Goa by virtue of Section 5(1) of the Goa, Daman and Diu Administration Act, 1962.1

RECOGNITION OF PRE-NUPTIAL ARRANGEMENTS BY PORTUGUESE CIVIL CODE

The Code specifically allows spouses to enter into contracts and agreements regarding their assets and their ownership before solemnisation of marriage. Under Article 1096 of the Code,2 it is lawful for the spouses to stipulate, whatever they think fit in respect of their assets before the solemnisation of the marriage. However, under Article 1098 of the code,3 if there is no declaration, it is assumed that all assets will become common for both the spouses.

Furthermore, to ensure that pre-nuptial agreements are not misused there are certain provisions like any contract which may change the legal order of succession of legal heirs or the paternal and conjugal rights and obligations, laid down by law, shall be deemed as not written.4 Moreover, under Article 1104 of the code,5 the wife is not entitled to deprive the husband, by way of pre-nuptial contract, from administering the assets of the couple; but she may reserve for herself the right to receive part of the income of her assets for pocket expenses and dispose of it freely, provided it does not exceed one-third of the said net-income. Additionally, as per article 1105 of the code,6 no revocation or change of pre-nuptial contract by way of new contract is permissible, after the solemnisation of the marriage.

Under the rule of law as has been followed in Goa, marriage is considered as one of the forms of contract. The assets of couples are governed by the type of contract they enter into before marriage. Four types of contracts for administration of assets are -

  • The law of Community property: (Article 1099 – Contract of communion of assets between spouse) When there is no express contract between the parties, this provision is applicable. Whereas under this arrangement, both parties acquire joint ownership of all assets. Inheritance-related assets are also included in the joint ownership. The spouse's approval is crucial at the time of disposal or encumbrance. The woman is entitled to receive half of the husband's income in the event of a separation.
  • Absolute Separation of property: In this system the partners are entitled to their own properties independently and there is no communion of assets.
  • Separation of assets is prior to marriage:In this form, there is total separation of assets prior to marriage and communion of assets and properties acquired after marriage.
  • Dotal Regime:Share of the bride in the father's estate is handed over to the husband. However, the husband is bound to return the property in case of dissolution of marriage.

VALIDITY OF PRE-NUPTIAL AGREEMENTS AS PER HINDU LAW

Since marriages are considered a sacrament7, any agreement promoting separation or anything contrary to personal laws has not been considered valid in case of Hindu marriages.

Although there exists a body of Indian case law opposing the validity of prenuptial agreements in the context of Hindu marriages, it is worth noting that there has been evolution and change in their interpretation and acceptance by the court.

Decisions in the case of Tekait Man Mohini Jemadi v. Basanta Kumar Singh8andKrishna Aiyar v. Balammal9, declared that prenuptial agreements are void since they are against public policy.

In contrast, in the case of Pran Mohan Das v. Hari Mohan Das,10 the Calcutta High Court held that the prenuptial agreement was good and valid and the principle of “part-performance of a contract” estopped the plaintiff from recovery of the property. Moreover, as the agreement in question was not a marriage brokerage contract, it was not found to be opposed to public policy.

Although the judgment in the case of Sandhya Chatterjee v. Salil Chandra Chatterjee11 was concerned with a post-nuptial agreement, the Calcutta High Court was pleased to uphold an agreement for separation and payment of maintenance between the parties by holding that the same was not opposed to public policy.

A review of these case laws indicates that with the passage of time and changing dynamics the courts have taken a liberal view as to the understanding of parties drawn in the form of agreement. The said understanding / interpretation can be segregated as—first, by enforcing the terms of the prenuptial agreement alongside other legal principles, and second, by creating exceptions within the broader framework of judicial precedents which have viewed prenuptial agreements as invalid due to their conflict with public policy.

PRE-NUPTIAL AGREEMENTS IN MUSLIM MARRIAGES

While it is established that marriage is a civil contract for Muslims, a study of the trend in case laws relating to the interpretation of prenuptial agreements in Muslim marriages by Indian courts brings forth several interesting findings. In certain cases, likeKhatun Bibi v. Rajjab,12Ahmad Kasim Molla v. Khatun Bibi (‘Kasim Molla'),13andBai Fatma v. Ali Mahomed Aiyab,14 the court observed that an agreement providing for and thereby encouraging future separation between spouses must be pronounced void on account of being against public policy. 

In another series of decisions like Muhammad Muin-Ud-Din v. Musammat Jamal Fatima(‘Muin-Ud-Din'),15 Saifuddin Sekh v. Soneka Bibi,16 etc. the court upheld the validity of a prenuptial agreement in case of dissension between the spouses.

A perusal of these cases indicates an orientation of Indian courts towards giving effect to prenuptial agreements entered into by couples. Initial invalidation of such agreements was based partly on the existing stance on public policy promulgated by the British courts. The initial understanding was based on the idea that entering into an agreement for future indicates an intent to separate in the future which was against public policy. However, later cases appear to have adopted a more liberal and understanding approach.

CONCLUSION

Portuguese Civil Code's recognition of pre-nuptial agreements in comparison to personal laws applicable to the rest of India provide an exception to the norm. In the wake of discussions regarding Uniform Civil Code, Portuguese Civil Code's uniform approach to distribution of assets in a marriage serves as a good reference.

The position of law under Portuguese Civil Code has been appreciated widely, with the Supreme Court in the case of Damodar Ramnath Alve v. Shri Gokuldas Ramnath Alve17 observing that the Portuguese Civil Code has strengthened the basic unit of the society and the family by safeguarding the interests of the children and of widows.

1. § 5 The Goa, Daman and Diu (Administration) Act, 1962, Act No. 12, Acts of Parliament, 1962.

2. Article 1096, Portuguese Civil Code, 1867.

3. Article 1908, Portuguese Civil Code, 1867.

4. Article 1103, Portuguese Civil Code, 1867.

5. Article, 1104, Portuguese Civil Code, 1867.

6. Article 1105, Portuguese Civil Code, 1867.

7. Beni Bai v. Raghubir Prasad (1999) 3 SCC 234

8. (1901) ILR 28 Cal 751

9. (1911) ILR 34 Mad 398

10. Pran Mohan Das v. Hari Mohan Das, (1925) AIR Cal 856.

11. Sandhya Chatterjee v Salil Chandra Chatterjee, (1980) AIR Cal 244.

12. Khatun Bibi v. Rajjab, ILR 1942 All 518.

13. Ahmad Kasim Molla v. Khatun Bibi, (1933 ) AIR Cal. 27.

14. Bai Fatma v. Ali Mahomed Aiyab, (1912) 14 BomLR 1178.

15. Muin-Ud-Din v Musammat Jamal Fatima, (1921) ILR 43 All 650.

16. Saifuddin Sekh v. Soneka Bibi, (1955) AIR Gau153.

17. Damodar Ramnath Alve vs Shri Gokuldas Ramnath Alve, (1997) 4 BomCR 653.

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