SC’s stridhan ruling reignites debate: Should prenuptial agreements become the norm in India?

The woman disclosed that her family had gifted her 89-Sovereign gold on her marriage and that her father had presented her husband with a Rs 2 lakh cheque after the wedding. She accused her husband and mother-in-law of using all the jewellery to settle their financial obligations.

After the woman’s case was quashed by the Kerala High Court on grounds of her not being able to prove that her jewellery was snatched away, she approached the Supreme Court, which directed the man to pay her Rs 25 lakh in return for her lost gold, sparking debates about equity and autonomy within Indian marriages.

As families evolve and women become more independent as they join the workforce in greater numbers, India grapples with the question: should prenuptial agreements become the norm?

Prenuptial agreements in India: Legal hurdles and considerations

Traditionally, stridhan has held significant cultural and economic importance for women in India, symbolising their financial security and autonomy within the marital union. However, the recent case highlights the need for legal clarity and support to ensure that women retain control over their assets, even in the face of marital problems.

Advocate Kamlesh Kumar Singh explains that when considering a prenuptial agreement in India, it is essential to adhere to specific legal requirements and considerations for its enforceability.

“Firstly, both partners should enter into the agreement willingly and disclose their financial information honestly. The terms outlined in the agreement must be equitable for both parties, documented in writing and preferably registered. Consulting with a lawyer before signing is advisable to ensure legal clarity and compliance,” he says.

Additionally, it is important to ensure that the terms of the agreement align with societal norms. Keeping the agreement straightforward, comprehensible and allowing ample time for consideration before marriage are also crucial aspects to uphold its legality in India.

Currently in India, different aspects of matrimonial relationships — from their inception to end — are governed by personal laws. “These aspects include spousal rights and duties including stridhan and provisions related to divorce, child custody and alimony,” says Chinmay Deshmukh, an assistant professor of law at BITS Law School.

For Hindus, the Hindu Marriage Act applies, while Muslims and Christians have their own respective marriage Acts. Generally, prenuptial agreements are not recognised under personal laws. “Since marriages under the Indian personal laws are generally regarded as sacraments, any agreement that is seen as encouraging separation is considered against public policy, and thus, invalid,” Deshmukh says.

Vinayak Burman, managing partner at Vertices Partners adds, “Though prenuptial agreements have not been legalised yet, they do guide the Court on the intention of the parties. However, marital breakdowns which are hostile in nature tend to involve parties challenging the enforceability and validity of the prenuptial agreements, which therefore, mandates the relevant Court to delve into other questions considering the facts of the case.”

Prenuptial agreements serve as a safeguard for both partners. (Source: Freepik)

Women’s perspectives: Security, trust and individual choices

In India, marriage is often viewed as a lifelong commitment, not just by society but the law as well. So the notion of planning for its potential dissolution may seem pessimistic. However, the reality is that marriages can falter, and individuals deserve the security of knowing their assets are protected.

Garima Agarwal, a working mother, says the Supreme Court ruling serves as validation of women’s rights and reinforces the importance of protecting their assets. “While my relationship with my husband has remained strong and unaffected by the need for such agreements, I acknowledge that circumstances can change over time. Had I been aware of the concept earlier, I might have considered it as an option,” she says.

Shivani Shukla, a single woman working as a public relations professional, believes that historically, marriage has been structured in a way that often disadvantaged women economically. “Prenuptial agreements offer a means for women to negotiate terms that safeguard their financial well-being, ensuring that their contributions to the relationship are duly recognised and protected,” she adds.

However, some women also believe that a marriage should be based on mutual trust. “The decision to pursue a prenuptial agreement should be based on individual circumstances and preferences,” says Udita Singhal, a communications professional. While some may find comfort and security in having a clear financial arrangement, she remarks, others may prioritise building their relationship on trust and mutual support.

What do men have to say?

While some men view the agreements as a valid approach to financial planning, others may perceive them as indicative of mistrust or an erosion of traditional values.

Aman Raj, a consultant, feels the concept that men have no right to stridhan no longer fits the modern reality. “We have to consider rewriting the narrative with gender-neutral laws that ensure fairness and equality for all,” he says. “In our community, approaching this subject with a partner might imply distrust, risking conflict and even relationship breakdowns. However, fostering awareness is crucial.”

On the other hand, Azhar Khan, a senior executive at an IT company, supports the Supreme Court’s ruling. “This decision marks a crucial step towards gender equality and sends a strong message about respecting women’s contributions and dignity.”

Both the men agree that prenuptial agreements are helpful and necessary, in some cases.

Prenuptial agreements serve as a safeguard for both partners, Khan continues, ensuring fairness and transparency in marriages. 

Raj concurs, “For couples who have shared a considerable amount of time together, the necessity of such agreements might not be as pressing, owing to their depth of understanding and shared experiences.”

Conversely, he says that in arranged marriages, where couples may have had limited interaction or familiarity prior to marriage, the notion of a prenuptial agreement becomes not just advisable but crucial for safeguarding the interests of both individuals involved.

The psychology of prenups: communication, trust and long-term stability

There are psychological factors at play in discussions about prenuptial agreements. Psychologists, therefore, emphasise the importance of open communication and mutual understanding.

Sohini Rohra, a counselling psychologist and mental health advocate, says, “In most cases in India, women are expected to leave their homes, live with the marital family, give up their professional goals and look after the home and children.”

A lot of women experience depression and loneliness and feel a deep sense of hopelessness as age catches up and their children move on. By this time, Rohra says, they are older, disempowered and helpless owing to a lack of financial and professional independence. “This is where a prenup might actually help a woman if written with consideration, keeping both perspectives in mind,” she says.

Talking about the effect prenuptial agreements can have on the emotional dynamics and long-term stability of a marital relationship, Rohra says, “While it does create financial security and clear roles and responsibilities, it can also make one party feel resentful, vulnerable and unsafe.”

Rohra recommends that couples should communicate sensitively, with care, understanding and mutual respect. “A prenup may actually lay the foundation of long-term stability, but an insensitive or rough approach may in fact create long-term instability and cracks,” she adds.

A loving, empathetic and compassionate approach coupled with pragmatism focused on the intent to protect both partners and the growth of their unit may truly result in long-term stability, clarity and a strong foundation to handle changes in the unforeseen future, the psychologist explains.