INTRODUCTION
The most expensive document an Indian couple avoids signing is a prenuptial agreement. Many startup founders will gladly sign a two-hundred-page shareholders’ agreement to shield business equity, negotiate SEBI-compliant disclosures for a listed entity, and structure insolvency exposure under the IBC. However, they are unwilling to sign anything that relates to their personal financial future should their marriage end. India has developed a legal infrastructure for private wealth over decades, yet when a marriage ends, there is no equivalent legal system in place.
Now consider the spouse who steps back to manage the household, raise the children, and build the domestic atmosphere around which a partner’s professional progress becomes possible. They may have sacrificed a career, forgone equity, and suspended compounding to do so. Indian law does not value that contribution, since no codified concept of marital contribution exists. [1] This is not an oversight, but a judicial choice, with uneven consequences.
WHAT THE LAW AND JUDICIAL PRECEDENTS SAY
Section 10 of the Indian Contract Act, 1872, sets the conditions for a valid contract, including free consent, competent parties, lawful consideration, and lawful object. It neither mentions prenuptial agreements nor excludes them.[2] The exclusion of such agreements comes from judicial interpretation rather than legislation.[3]
In Tekait Mon Mohini Jemadai v Basanta Kumar Singh (1901), a contract fixing a husband’s matrimonial domicile at his wife’s family home was void since it was contrary to public policy, throwing a long interpretive shadow.[4] This was a specific ruling on the domicile of a husband after marriage, which became a general rule of law that was to affect financial contracts entered into by spouses for over a century. Comparatively, in Radmacher v Granatino [2010], the UK Supreme Court held that a prenuptial agreement should be given “decisive weight” unless it would be “unfair to hold the parties to it” at the time of enforcement.[5] English courts still scrutinise prenups for fairness, and decline to enforce agreements that fail that test. Even though India and England shared an identical doctrinal foundation, England’s courts evolved it, while India never attempted that shift.
SECTION 23, PUBLIC POLICY, AND THE CONTRADICTIONS INDIAN LAW HAS NOT RESOLVED
Section 23 of the Indian Contract Act voids agreements “opposed to public policy.”[6] Courts have applied this to prenuptial maintenance clauses for over a century. However, the term “public policy” is not defined in the Act and is left entirely to the judicial discretion, and discretionary standards in matrimonial law carry documented distributional consequences.
In March 2026, a Supreme Court bench orally stated that a wife is a life partner, not a domestic servant, because a husband sought a divorce because she did not cook.[7] The fact that we needed a court to justify this proves that a mechanism to value the contributions of the wife in terms of her career sacrifice, her domestic labour, and her professional support to enable her husband’s career advancement is needed in the existing law.[8]
Any workable prenuptial framework must respect the guidelines mentioned in Nagendrappa Natikar v Neelamma (2013). This case held that a one-time settlement for lifetime maintenance cannot bar a wife from her statutorily entitled maintenance under Section 125 of the Criminal Procedure Code.[9] Maintenance, being a part of social legislation, cannot be used as a means to finally determine a person’s civil rights.[10] It can enhance the amount of minimum maintenance in a prenuptial agreement, but cannot exclude it altogether.
The problem is compounded by the fact that a registered Nikah Nama can contain details such as Mehr, talaq-e-tafwid, prohibition on polygamy, and maintenance terms. All these would be treated as part of the marriage contract and therefore as enforceable. On the other hand, a civil marriage contracted under the Special Marriage Act, for example, would not carry any of these protections. That got me thinking as to how a secular law could be structurally less protective than a religious one.
What is more absurd is that in Goa, which follows the Portuguese Civil Code, retained under Article 372, permits a registered ante-nuptial escritura, which is a functioning prenup, operating legally in India today.[11] An identical agreement will face enforceability challenges in any other state in India.[12] The geography of marriage is not a rational basis for differential rights. A standalone Matrimonial Property Agreements Act, religiously neutral and optional, resolves both anomalies in the law.[13]
THE PROBLEMS COURTS ARE DECIDING WITHOUT LEGISLATIVE GUIDANCE
Take unvested ESOPs. A founder’s stock vests over four years while divorce proceedings commence in year two. Are these vesting stocks considered matrimonial assets? In America, courts apply the formula set out in In re Marriage of Hug (California Court of Appeals, 1984), which determines how much equity can be allocated as a marital asset by measuring the overlap between the marriage and the employee’s tenure with the company.[14] There is no such precedent or formula for Indian courts.
This situation can get worse. A founder owns 35% of the stock at the time of marriage, and the company grows ten times over the duration of the marriage. What happens when the spouse, who stepped back to help the firm grow, seeks a portion of its growth? No Indian court has determined whether appreciation in startup equity during marriage constitutes a matrimonial asset. It is left unaddressed in the shareholders’ agreement, making it an unpriced liability on the cap table.
The issue is exacerbated by illiquidity. One partner possesses some Bitcoin stored in a private wallet. Prices at the time of marriage, at the time of divorce, and at the time of the ruling by the court may be several crores apart. Which date will prevail? In UTL v UTM [2019], the Singapore High Court (Family Division) classified cryptocurrency as a matrimonial asset and included the Bitcoin holdings in the pool of assets subject to division.[15] Indian matrimonial law has no theory of marital contribution against which to measure any of these claims.
THE FRAMEWORK: WHAT THE STATUTE MUST CONTAIN
Every serious analysis of prenuptial reform in India identifies Section 23 as the barrier. The solution is standard Indian legislative drafting: ‘Notwithstanding anything contained in Section 23 of the Indian Contract Act, 1872, a matrimonial property agreement satisfying the conditions under this Act shall not be void merely on the ground of public policy.’[16] This non-obstante clause was inserted by Parliament in SARFAESI, the IBC, and RERA. Its absence will make all the pillars highlighted below vulnerable to the same challenge.
I would consider pillar one to be validity based on the Uniform Premarital Agreement Act 1983, USA, and Radmacher [2010].[17] [18]A matrimonial property agreement should be valid only if it is in writing, signed at least thirty days before the marriage, and accompanied by a full financial disclosure of property, including equity, ESOPs, digital asset wallets, and AI-generated IP. [19] Both parties must obtain independent legal advice or give a knowing written waiver thereof. These agreements must be notarised, following the French matrimonial contract model.
Pillar two should be the permissible clauses, modelled on the German Ehevertrag.[20] Ring-fencing of pre-marital assets, inheritance, and gifts would be beneficial. Handling of ESOPs and start-up equities must have an agreed-upon date of valuation and vesting. Disclosure of digital assets with an agreed valuation methodology, and mandatory arbitration under the Arbitration and Conciliation Act, 1996,[21] becomes imperative.
An India-specific constitutional floor should constitute pillar three. Prohibit waiver of child support or custody rights. Any clause falling below the Section 144 BNSS maintenance minimum,[22] or violating a fundamental right, must become void as a matter of law.
The last pillar should be on the enforcement, with its basis in section 112 of the Singapore Women’s Charter.[23] Family courts should apply a two-stage test, confirming if the agreement is valid at signing and fair at enforcement, allowing revision in cases where the situation has undergone substantial change but without rendering the agreement null and void. It is up to the party bringing the claim to prove it. Public registration with the Sub-Registrar eliminates the problem of evidence of informal quasi-prenuptial arrangements.
The usual argument against prenuptial agreements, namely that they would be used against vulnerable parties, is addressed by the very framework itself.[24] In the present system, there are no obligations for either party to disclose their assets, seek any legal advice, or establish an asset base before the marriage. All these features are covered by the suggested framework, with the minimum maintenance level that cannot be waived under any circumstances. Ergo, calling for a legal framework to implement the Marriage Property Agreement Act is not an extreme approach but rather one that fills the void. Case-by-case court involvement cannot replace having an appropriate legislative framework.
In India today, getting married is easy, but getting out of a bad marriage, fairly and without financial ruin, is not. The law should make entering marriage a more deliberate act, with terms agreed transparently up front, so that leaving one that does not work is less catastrophic for the person who had the least on paper but gave the most in practice.
References:
[1] Vijender Kumar, ‘Matrimonial Property Law in India: Need of the Hour’ (Academia.edu, 2016) < https://www.academia.edu/24523901/MATRIMONIAL_PROPERTY_LAW_IN_INDIA_NEED_OF_THE_HOUR >accessed 17 May 2026.
[2] Indian Contract Act 1872, s 10.
[3] Amrita Ghosh and Pratyusha Kar, ‘Pre-Nuptial Agreements in India: An Analysis of Law and Society’ (2019) 12(2) NUJS Law Review 217 <https://nujslawreview.org/wp-content/uploads/2019/12/12-2-Ghosh-and-Kar.pdf > accessed 17 May 2026.
[4] Tekait Mon Mohini Jemadai v Basanta Kumar Singh (1901) ILR 28 Cal 751.
[5] Radmacher (formerly Granatino) v Granatino [2010] UKSC 42, [2011] 1 AC 534.
[6] Indian Contract Act 1872, s 23.
[7] Debby Jain, ‘“You Are Not Marrying A Maid, Husband Also Must Contribute To Cooking”: Supreme Court Tells Man’ (LiveLaw, 20 March 2026) < https://www.livelaw.in/top-stories/supreme-court-marital-dispute-allegations-wife-not-cooking-washing-not-cruelty-husband-must-contribute-married-a-life-partner-not-maid-527218 > accessed 17 May 2026.
[8] Aarushi Bhatnagar, ‘Marital Property Law: A Prerequisite for Progressive Divorce Reforms in India’ (SSRN Working Paper, 10 May 2018) < https://ssrn.com/abstract=3201944 > accessed 17 May 2026.
[9] Nagendrappa Natikar v Neelamma AIR 2013 SC 1541, (2014) 14 SCC 452.
[10] Bharatiya Nagarik Suraksha Sanhita 2023, s 144.
[11] Portuguese Civil Code 1867 (as applicable in Goa).
[12] Goa, Daman and Diu Administration Act 1962, s 5(1).
[13] Constitution of India 1950, art 372.
[14] In re Marriage of Hug 154 Cal App 3d 780 (Cal Ct App 1984).
[15] UTL v UTM [2019] SGHCF 10.
[16] Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002, s 35; Insolvency and Bankruptcy Code 2016, s 238; Real Estate (Regulation and Development) Act 2016, s 89.
[17] Uniform Premarital Agreement Act 1983 (USA)..
[18] Radmacher (formerly Granatino) v Granatino [2010] UKSC 42, [2011] 1 AC 534
[19] Jens M Scherpe, ‘Marital Agreements in England and Wales after Radmacher v Granatino: Fairness, Freedom and Foreign Elements’ (SSRN Working Paper, 2012) <https://ssrn.com/abstract=2038488> accessed 17 May 2026.
[20] Bürgerliches Gesetzbuch (German Civil Code, 1900) §§ 1408–1413.
[21] Arbitration and Conciliation Act 1996 (India).
[22] Bharatiya Nagarik Suraksha Sanhita 2023, s 144.
[23] Women’s Charter (Singapore, Cap 353) s 112.
[24] Peter T Leeson and Joshua Pierson, ‘Prenups’ (2016) 45(2) Journal of Legal Studies 367.