What is Legal Validity of Prenuptial Agreements in India ? Divorce Speculations of Hardik Pandya and Natasa Stankovic Spark Discussion

While not outright illegal, the enforceability of these agreements remains uncertain and is subject to the complexities of personal laws and public policy. 

29 May 2024

By Ishika Kumar

Recent speculations regarding the possible divorce of Indian cricketer Hardik Pandya and Serbian model Natasa Stankovic have piqued public interest, particularly concerning the enforceability of prenuptial agreements in India. 

Allegations and speculations suggest that Natasa might claim a significant portion, up to 70% of Pandya’s assets as part of the settlement. Despite these rumours, neither party has made official statements confirming the divorce or the terms of any purported settlement. 

This high-profile situation has prompted an in-depth examination of the legal standing of prenuptial agreements within the Indian judicial system.

Legal Status of Prenuptial Agreements in India

In contrast to many Western countries where prenuptial agreements (prenups) are common and legally enforceable, India presents a unique legal setting. Prenups in India are neither explicitly recognised nor outright illegal. Instead, they exist in a grey area where their enforceability is uncertain and largely dependent upon individual circumstances and the circumstances of the case.

Expert Opinions on Prenups in India

Ankur Mahindro, Managing Partner, Kred Jure: 

Mahindro emphasises that while prenuptial agreements could effectively protect each party’s assets, they are not legally enforceable in India. This is because such agreements are often deemed immoral and contrary to public policy, rendering them void under Section 23 of the Indian Contract Act of 1872. 

Additionally, personal laws governing Hindus, Muslims and Christians in India do not formally recognise prenups, further complicating their enforceability.

Mahindro outlines that, unlike in other countries, there is no concept of estate distribution in India, except in Goa. In divorce proceedings, either spouse can seek monetary assistance, including maintenance and alimony, but they do not automatically gain rights to each other’s self-acquired properties. 

In contested divorces, interim maintenance may be granted during the proceedings, and a final decision on alimony is made upon divorce. In mutual consent divorces, the parties can agree on the terms of separation, including alimony and child custody.

Sneha Bhogle Kale, Partner, Accord Juris LLP: 

Kale notes that while traditionally not recognised, Indian courts are gradually acknowledging prenuptial agreements due to increasing complexities in marriages and divorces. Although these agreements function as regular contracts under the Indian Contract Act of 1872, their enforceability is still limited by personal laws that view marriage as a sacrament. 

Prenups are particularly useful for individuals with significant inherited wealth or business interests, as they can help mitigate asset loss during divorce.

Kale highlights recent judicial decisions that emphasise the importance of prenuptial agreements, suggesting they should be registered before marriage to outline terms for alimony, maintenance and child protection, thereby avoiding prolonged litigations.

How Indian Law Handles Prenups

Despite the absence of specific statutes governing prenuptial agreements in India, couples can still enter such contracts, keeping several important considerations in mind:

Legal Status: Prenups are considered contracts under the Indian Contract Act of 1872, but their recognition and enforceability are not guaranteed.

Enforceability: The enforceability of prenuptial agreements in India is not consistent. Courts evaluate these agreements on a case-by-case basis, considering factors such as fairness, voluntariness and rationality of the terms and how they are laid out.

Custom and Religion: India’s marriage laws are deeply intertwined with religious customs. Prenups must not violate the personal laws governing marriage and divorce for different religions (e.g., Hindu Marriage Act, Muslim Personal Law, Christian Marriage Act). Usually, special laws like these personal laws take precedence over common laws like what a prenup would signify.

Public Policy: Indian courts may refuse to enforce prenuptial agreements if they are against public policy, such as clauses that penalise a party for seeking a divorce.

Contents of the Agreement: For better enforceability, a prenuptial agreement should be fair, transparent and consensual. It should include full disclosure of assets and liabilities and be drafted with independent legal advice for both parties.

Judicial Precedent: There are few judicial precedents regarding prenuptial agreements in India, and the judiciary’s attitude is evolving. Future judgments may offer more clarity on their status.

Disclaimer

The information provided here is for general informational purposes only and may not reflect the most current legal developments. Legal provisions and judicial attitudes continuously evolve, and readers are advised to consult with legal experts familiar with Indian family and contract law for specific guidance.

To Conclude

The swirling rumours around Hardik Pandya and Natasa Stankovic’s alleged divorce and the potential transfer of 70% of Pandya’s assets to Stankovic have spotlighted the legal ambiguities surrounding prenuptial agreements in India. While not outright illegal, the enforceability of these agreements remains uncertain and is subject to the complexities of personal laws and public policy. 

It might benefit society to adopt such provisions as courts are heavily burdened with cases regarding divorce and alimony, or even custody battles which go on for years altogether. Prenups might ease the system a little and promote amicable separation of couples as it shall already outline the basic division of assets and holdings or shared property between them. What the courts can ensure is certain requirements, which lawyers can fulfil for their clients seeking a divorce or getting married; this is to draft a water-tight prenup, with both the spouses’ consent. 

Moving forward, as societal and legal landscapes evolve, the role of prenuptial agreements in India may become more defined, providing clearer protections for individuals entering marriage.