AGGARWAL GUPTA & ASSOCIATES

Advocates & Consultants | New Delhi | aggarwalguptaandassociates.com

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LEGAL INSIGHT

By Anuj Gupta, Advocate | Enrolment No. D/1556/2001 | 01 May 2026

READ THIS FIRST: A Pre-Nuptial Agreement (PNA) is not illegal in India. But it is also not automatically enforceable. Validity is decided clause-by-clause under Section 23, Indian Contract Act, 1872. Maintenance waivers, jurisdiction exclusions, and PWDVA waivers are void. Registered property clauses and Muslim nikahnama stipulations may survive. There is no legislation on PNAs — Parliament has never spoken on this.

I. Your Spouse Wants a Pre-Nup. Should You Sign? Start Here.

A Pre-Nuptial Agreement ('PNA') — also called an Ante-Nuptial Agreement or Pre-Marital Agreement — is a written contract signed by two intending spouses before marriage, setting out their rights over property, maintenance, inheritance, and financial matters if the marriage breaks down.

In India, unlike the UK or USA, there is no dedicated statute that recognises or governs PNAs. Their legal fate is entirely judge-made — and the judiciary has been consistently cautious.

"In India, marriage is not treated merely as a civil contract. It is a social and sacred institution — and the courts guard it accordingly."

II. Is a Pre-Nuptial Agreement Even Legal in India?

A. The Indian Contract Act, 1872 — The Only Battlefield

A PNA is a contract. So it must pass the test under Section 10, ICA — free consent, competent parties, lawful consideration, lawful object. That last requirement — 'lawful object' — is where most PNAs fail.

Section 23, ICA voids any agreement whose object is: (i) forbidden by law; (ii) designed to defeat any law; (iii) fraudulent; (iv) injurious to others; or (v) opposed to public policy . That fifth limb is the judge's favourite sword against PNAs.

Clauses that contemplate divorce, exclude statutory maintenance, or oust court jurisdiction are routinely struck down as contra bonos mores — against public morals.

B. Personal Law Position — Statute by Statute

C. Quick-Reference Enforceability Matrix

Law / Statute	PNA Valid?	Position
Indian Contract Act, 1872	Partially	Valid only if object/consideration not opposed to public policy (S.23).
Hindu Marriage Act, 1955	No	S.24, S.25, S.26 are statutory; cannot be contracted away.
Special Marriage Act, 1954	No	No provision; property rights under Indian Succession Act.
Muslim Personal Law / Nikahnama	Yes — Limited	Mehr, talaq-e-tafweez in nikahnama are enforceable.
Christian & Parsi Personal Laws	No	No statutory basis; evidentiary value at most.
PWDVA, 2005	Cannot Be Waived	Protective statute; rights non-waivable by contract.
Transfer of Property Act, 1882	Conditional	Property clauses stand if duly registered and stamped.

III. What Has India's Supreme Court Actually Ruled?

A. Supreme Court — The Settled Position

Sunita Devendra Dhamdhere v. Devendra Vyankatrao Dhamdhere — (2020) SCC Online SC 957
A matrimonial agreement must not oust court jurisdiction or override statutory maintenance rights under S.25 HMA. Consent of parties cannot diminish a court's statutory power.

Tekait Mon Mohini Jemadai v. Basanta Kumar Singh — AIR 1901 Cal 11 [Principle affirmed by SC] A pre-nuptial agreement by which a wife waived her right to seek maintenance was struck down as void — against public policy. This 120-year-old ruling remains good law.

Subramanian Swamy v. Union of India — (2014) 8 SCC 682 Marriage in India is not merely a civil contract but a social and religious institution. This foundational observation restricts the contractual framework within which matrimonial agreements can operate.

Krishna Aiyar v. Balammal — AIR 1911 Mad 189 A PNA stipulating that the husband would not take a second wife was upheld — demonstrating the narrow but real category of PNA clauses Indian courts will enforce.

B. High Courts — Consistent Across Jurisdictions

Charanjit Kaur v. Union of India — AIR 1994 P&H 85 Punjab & Haryana HC: Maintenance rights under HMA are statutory and cannot be contracted away. A PNA clause limiting such rights is void under S.23 ICA.

Soumitra Kumar Nahar v. Parul Nahar — (2019) SCC Online Cal 7054 Calcutta HC: Any clause curtailing HMA or PWDVA rights is void and unenforceable — even if the overall agreement is consensual.

Soumitra Kumar Nahar v. Parul Nahar — (2019) SCC Online Cal 7054 Calcutta HC: Any clause curtailing HMA or PWDVA rights is void and unenforceable — even if the overall agreement is consensual.

Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari — (2014) SCC Online Bom 668 Bombay HC: Ante-nuptial agreements on self-acquired property, if registered and stamped, are enforceable as property instruments — independent of their matrimonial character.

IV. Has Parliament Said Anything? The Legislative Vacuum.

Parliament has enacted zero legislation on PNAs. The Law Commission has issued no dedicated report. Key legislative milestones — and their silence on PNAs:

1. 1. Law Commission Report No. 71 (1978) — HMA & SMA review. PNAs not addressed.
2. 2. Law Commission Report No. 217 (2009) — Irretrievable breakdown of marriage. No recommendation on PNAs.
3. 3. Marriage Laws (Amendment) Bill, 2010 — Lapsed in Parliament. No PNA clause.
4. 4. Law Commission Report No. 283 (2023) — Uniform Civil Code. Does not endorse PNAs.

"Enforceability of a PNA in India rests entirely on judicial interpretation of a 150-year-old provision — Section 23, Contract Act, 1872. Parliament has never spoken on the subject."

V. Which Clauses Will a Court Enforce — And Which Will It Trash?

Likely Enforceable

• Registered property division — Self-acquired property, duly registered & stamped under TPA.
• Muslim nikahnama — Mehr — Fixed dower, enforceable as a contract.
• Talaq-e-tafweez — Delegated right of talaq to wife — expressly recognised.
• Asset-disclosure undertakings — Carry strong evidentiary value in later proceedings.
• Clauses not ousting statutory rights — Behavioural stipulations consistent with personal law may survive.

Void — Courts Will Strike These Down

✘ Maintenance waivers — S.24 / S.25 HMA rights are statutory. Non-waivable. Period.

✘ Jurisdiction exclusion clauses — Cannot oust a court's statutory jurisdiction by contract.

✘ PWDVA rights waivers — Protective statute — rights are non-contractual.

✘ Pre-agreed divorce terms — Anticipating dissolution of marriage — violates public policy under S.23 ICA.

✘ Custody pre-determinations — Courts apply the 'welfare of child' test at the time of dispute. PNA cannot pre-empt this.

Courts apply the doctrine of severability — invalid clauses are severed; the remainder survives if capable of standing independently.

VI. So What Should You Actually Do? Our Advice.

Five Steps If You Want Pre-Marital Financial Protection in India:

1. 1. Do not call it a PNA. Execute a separate registered property agreement under TPA, 1882. Avoid the label. Avoid the stigma. Focus on the substance.
2. 2. Never waive statutory rights. No maintenance exclusions. No PWDVA waivers. No jurisdiction exclusions. These are void regardless of what the document says.
3. 3. Full and fair asset disclosure — both parties. Essential to establish free consent under S.14 ICA. Concealment can void the entire agreement.
4. 4. Independent legal counsel for each party. Shared counsel fatally compromises the free-consent argument. Each party must have their own advocate.
5. 5. Register and stamp the instrument. Without registration under IGRS / Registration Act, even property clauses carry limited weight. Registration is non-negotiable.