Why India can no longer ignore prenuptial agreements

Marriage in India is still spoken about in the language of permanence, family and social duty. But the people entering marriages today are not necessarily living by the same script.

Young couples are marrying later, building independent careers, bringing property, investments, businesses and loans into marriage, and making decisions about residence, children and finances with greater individual autonomy. A conversation about money before marriage should, therefore, not automatically be treated as a conversation about divorce. It can simply be a conversation about responsibility.

The pressure on the family justice system makes that conversation harder to ignore. The National Judicial Data Grid shows substantial pendency of these cases across subordinate courts.

In Bhuwan Mohan Singh v. Meena, the Supreme Court criticised a nine-year delay before the family court. In Puja Pasricha v. Aishwarya Pasricha (Delhi High Court, 2025), that warning was relied upon to emphasise that delay aggravates matrimonial suffering. In Brahma Dayal Singh v. Smt. Meena Singh (Allahabad High Court, 2024), a matrimonial case instituted in 2002 had reached judgment only in 2013 before continuing in appeal.

There is no honest national figure saying every matrimonial case takes a fixed number of years on merits. The practical reality is that contested cases can remain pending for several years, with some surviving for a decade or more. A mechanism capable of narrowing the issues is, therefore, worth considering.

A matrimonial dispute rarely remains a single dispute. Divorce may be accompanied by maintenance, custody, dowry, residence, property and execution proceedings. If two adults genuinely want to decide some financial consequences in advance, why does Indian law have so little to say about it?

India has no general statutory framework governing prenuptial agreements. The Hindu Marriage Act, 1955 regulates divorce, maintenance, custody and other incidents of marriage. The Special Marriage Act, 1954 similarly provides for alimony, maintenance and custody. Neither creates a recognised system for pre-marital financial agreements.

The Indian Contract Act, 1872 becomes relevant. Section 10 requires free consent and a lawful object, while Section 23 places limits where the object or consideration is unlawful or opposed to public policy.

An agreement deciding future child custody, restricting access to courts or contracting out of criminal or protective legislation would raise obvious concerns. An agreement recording premarital assets, liabilities, business interests and a fair method of dealing with property on separation presents a different question.

The issue should, therefore, not be reduced to whether prenups are “valid” or “invalid”. The better question is: when should the law respect a matrimonial agreement between two informed adults?

The uncertainty is particularly visible in Indian precedent. In PR Srinivasa Aiyar v. A Sesha Iyer, the Madras High Court treated marriage primarily as a status rather than an ordinary commercial contract. Yet, it recognised that an agreement intended for the benefit of the married couple was not necessarily contrary to public policy.

The approach became stricter in AE Thirumal Naidu v. Rajammal, where the Madras High Court held that private agreement could not be used to alter the legal incidents of a Hindu marriage, particularly by arranging future separation.

In KG v. State of Delhi, the Delhi High Court considered a US prenuptial agreement challenged on grounds including duress, lack of independent legal advice and unequal bargaining power. It did not finally decide validity, but restrained reliance on the agreement to the wife's detriment pending adjudication.

These decisions do not produce a simple yes or no. They show that courts are repeatedly being asked to distinguish legitimate financial planning from an attempt to contract around matrimonial status, without a common statutory test.

For an Indian couple living entirely in India, a matrimonial financial dispute is complicated enough. For a Non-Resident Indian (NRI) marriage, the complications multiply. One spouse may live in Dubai, London, or Singapore while the other retains property, investments or business interests in India. A later separation can create disputes about entitlement, jurisdiction, disclosure, enforcement and choice of law.

The KG decision is a useful warning: although the parties had an agreement connected with US law, the Delhi High Court held that its validity, having been entered into in India, had to be tested under Indian law before it could be enforced to the wife's detriment.

An Indian prenup cannot automatically bind a foreign court, just as a foreign agreement cannot automatically override mandatory Indian matrimonial law. NRI prenups should identify assets and liabilities in each relevant country and be reviewed by lawyers familiar with the jurisdictions involved. Their value is not merely asset protection; they can prevent a matrimonial dispute from becoming a second dispute about where the first one should be decided.

This is where matrimonial autonomy must have its clearest limits. A prenup may record the parents' intentions about residence, schooling, travel, shared parenting and financial contributions. It may also record an undertaking to meet educational and medical expenses. But it cannot finally decide custody. The child's welfare remains paramount, as repeatedly affirmed by the Supreme Court in Gaurav Nagpal v. Sumedha Nagpal, Nil Ratan Kundu v. Abhijit Kundu and Yashita Sahu v. State of Rajasthan.

A prenup should treat custody clauses as expressions of present intention, not irrevocable commands. Parents can agree to facilitate meaningful contact, share routine expenses and adopt a preferred parenting structure, but the court must remain free to depart from it if circumstances or the child's welfare require it do so. The same applies to child support: parents may agree on financial responsibilities, but the court must retain power to protect the child's interests. It is important for all the stakeholders to bear in mind that at the time of execution of a prenuptial agreement, the child is not a party to the contract.

The strongest lesson from the UK, Australia, Singapore, the United States and parts of Europe is not that prenups should automatically bind courts. It is that they can be regulated rather than rejected outright.

The UK Supreme Court's decision in Radmacher v. Granatino gives substantial weight to a freely entered agreement while retaining fairness as the ultimate safeguard. Australia similarly gives financial agreements legal significance with procedural safeguards. Singapore treats a prenup as relevant to matrimonial finances while refusing to let private arrangements override children's welfare.

Foreign courts also distinguish between an agreement's validity and the weight ultimately given to it. Disclosure, independent advice, adequate time and voluntariness matter at the outset, while changed circumstances may justify later scrutiny. This balance recognises autonomy without treating a prenup as permanently immune from questions of fairness.

India does not need a system in which every couple is expected to sign a prenup. It needs a system in which couples who consciously choose to do so know what the law will do with it.

Parliament should consider limited statutory recognition with independent legal advice, full financial disclosure, adequate time for consideration, free consent, clear drafting and registration or another reliable record. Courts should retain a fairness review where there is economic dependence, coercion, material non-disclosure or a substantial change in circumstances.

Child welfare must remain outside the parties' final contractual control. So must criminal law, protective legislation and the basic right to approach a court.

Postnuptial agreements should also receive a place in the framework. In Varun Malik v. Payal Malik, the Delhi High Court dealt with a postnuptial arrangement concerning separation and divorce. Parties cannot create a divorce by private agreement where the statute requires a decree, but that does not mean every financial term agreed between spouses should be legally invisible.

A prenup is not a prediction of divorce. It is a decision to have a difficult conversation while two people are still on the same side. For an NRI family, it may prevent a cross-border battle over assets and jurisdiction. For a young couple, it may prevent years of argument over what each brought into the marriage. For a family court, it may mean one less financial dispute requiring years of evidence and hearings.

The law does not have to tell couples how to marry. But when two adults ask the law to respect a carefully negotiated agreement about the consequences of marriage, the law should at least tell them the rules. Otherwise, we risk a peculiar result: we tell couples that marriage is a lifelong commitment, yet leave them without a clear legal language for deciding what happens when that commitment breaks down.

The real question is no longer whether India is ready for prenups. It is whether the Indian legal system can afford to remain unprepared for them.

Vedang Khera is an advocate practising before the Delhi High Court and district courts in Delhi.