Marriage is not a contract among Hindus. But a religious ceremony (ritual).marriage in India has the same sacramental value as was in ancient time. Thus Hindu regards marriage as a ritual or we can say a religious ceremony. Moreover, Hindus believe that the purpose of getting married is to perform religious and spiritual duties. Hindu marriage is a permanent union where if one is married once can’t be married again, it is eternal union; which once tied can’t be untied.
Whereas in Muslim law, marriage assumes the form of a pure
civil contract, like a contract there must be a proposal and acceptance in one meeting
by the bridegroom and bride. There is no agreement for the death and divorce of
any of spouses under Muslim law unlike prenuptial agreement.
Prenuptial agreement-it is an agreement agreed or
entered into before marriage to establish liabilities and responsibilities in
the event of death or divorce of any of the spouse, after taking place of such
event the problems of fixing liability and also part in the property, assets
and money of any of spouse is predetermined, If the prenuptial agreement has
been agreed upon by the spouses. So generally prenuptial agreement is agreed
upon if any of two events occur after marriage,
Which are as
(2) Death Of any of the spouses.
Applicability of prenuptial agreement in India– according
to Hindu marriage act, 1955 prenuptial agreement is not valid reason being the
nature of marriage among Hindus sacramental not contractual.
In India, prenuptial agreements would fall into the category
of a contract if it completes al requisites of a valid contract provided under
the Indian contract act1872.and also that it should not overcome any personal laws.
Although marriages solemnized under special marriage act, 1954 can take stand
with prenuptial marriage. It is to be noted that any prenuptial agreement shall
not be contrary to the public policy otherwise can be nullified.
Object of prenuptial agreement-such an agreement will
definitely help both of spouses in the event of divorce because liability and
responsibilities are already determined and the dissolution of marriage will be
on happy notes rather than blaming each other. Meanwhile for the women it is
going to be easier to get maintenance and property rights. it is also helpful
fr person who are in live in relationship.
Acts/sections:-prenuptial agreement being of
contractual nature shall fulfill all essential elements of a valid contract
Section10 of the Indian contract act, 1872.
Section 11 of The Indian contract act, 1872.
Section 23 of the Indian contract act, 1872.
Section 40 of the divorce act, 1869.
Special marriage act, 1954.
Work of lawyer: – prenuptial agreements are not alien
concept anymore in India .as they are legal and bounding importance of such
agreement can be seen increasing, it is better for lawyer and society t be
aware of consequences. Responsibility, liability, enforceability of the concept of the prenuptial agreement
.as we can see many countries like Australia ,New Zealand, France has already
been introduced with this concept. It is better to be prepared as a lawyer to
face any such kind of circumstances.