In the new times, pre-nuptial agreements have become a trend. People nowadays are forming these agreements before marrying each other. Pre-nuptial agreements are also known prenup in general usage. These are some terms and conditions related to the marriage of the parties in case of death, divorce or separation. Parties of the contract come to some kind of agreement related to their financial issues in case of such events. This agreement in general lays down the financial and property related terms and conditions in case of breaking of marital relations.


Pre-nuptial agreements are basically, a learning from the Western world. However, in India marriage is a very sacred act and governed by personal laws of the parties. In India, the notion of marriage is more of an act of coming together of the families rather than something that may end up breaking the relations between the parties. These agreements promote separation of parties instead of aiming to keep them together. The notion of judiciary towards the divorce laws has also been the same. They grant divorce when irretrievable breakdown of marriage is evident. Thus, prenups are not legally valid in India till now.

Prenups are considered to be against the personal laws as well as the Indian Contract Act, 1872 as they are deemed as against public policy of India and any such contract is not valid under the Act. The courts are of the view that to enforce prenups breakdown of marriage is necessary and thus it can be said that they do not promote the ideas of the personal laws towards marriage rather aim against them.


Krishna Aiyar v. Balammal (1911) ILR 34 MAD 398

Following his wife’s refusal to live with him, the husband in Krishna Aiyar v. Balammal sought the restoration of conjugal rights, leading to a compromise deal. This arrangement said that the wife would have to return to her husband, but the husband would have to pay her Rs. 350 if she ever wanted to live apart. But when the wife failed to show up, the husband filed a second lawsuit to regain marital rights. The presence of this agreement was one of the defenses put out, but in the end, the Madras High Court declared it unenforceable due to its violation of Hindu law and public policy. A spouse’s entitlement to conjugal rights is violated by such a clause.

However, in recent judgments courts have showed an incline towards accepting the pre-nuptial agreements and there is a contrasting trend as compared to the prior judgments related to validity of prenups.

Pran Mohan Das v. Hari Mohan Das AIR 1925 Cal 856

In the case of Pran Mohan Das v. Hari Mohan Das, the Calcutta High Court however, gave a very opposite judgment as to the pre-conceived notion towards prenup. The court highlighted the effect of part – performance of contract that is the basis of such contracts. The court remarked that prenups are very important for the security of the parties. Also, it did not consider it to be marriage brokerage contract it was also not considered to be against the public policy.

In many more judgments the courts have now showed an acceptance towards the pre – nuptial agreements however, still there is no final judgment set by the Supreme Court on the validity of the agreements and also there is no provision in the Indian law stating the validity of the pre-nuptial agreements.


Protection of Assets: Pre-nuptial agreements protect the assets of the parties against each other in case of divorce, death or separation. Both the parties mutually consent to the terms of the agreement and thus come to the conclusion how the assets of the parties would be distributed.

Changes over time: As time evolves, the married lives of the parties also take different directions. Pre – nuptial agreements also embodies the changes that might come during the married life. Marriage, being a new start to lives of the husband and wife brings with it many new changes. Prenups help them to acknowledge those changes well in time and plan accordingly.

Transparency: Through prenup, parties bring clarity and transparency to their relation. This also brings trust in the relation as most of the points of contention are cleared during the agreement. Financial matters may lead to conflicts between parties thus it is good to manage them beforehand.

Alimony and Maintenance: Prenups also safeguard the rights of the wife and also the husband as it is decided in time how much amount would be given to the wife on divorce. It pre-calculates the terms related to alimony and maintenance and thus prevents a huge loss that may have been caused to the husband if decided at the time of the divorce.


Pre-nuptial agreements although being useful do not have a final legal status. It is the interpretation of the court in which the case is going on that would determine the legal validity of the agreement. However, it can be said that nowadays the courts are showing an interest towards accepting the legal validity of the agreements. Although by considering the effects of such agreements one would be inclined towards entering into such contract but until there is any legal provision protecting the same or any major landmark judgment by the Supreme Court, one must avoid entering into such contracts.

Contributed by – Ishita Saxena

(Symbiosis Law School, Noida (2023-28))

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