Taking precautions: Ben Affleck and Jennifer Lopez Anthony split up over their pre-nups (Photo: Reuters)

When Ritesh Desai, a software professional based in Mumbai, and his girlfriend, Manya Phadnis, a call-centre executive, decided to tie the knot, the couple first saw a lawyer ? even before breaking the news at home. They laid out their individual investments, property inheritances anticipated in the distant future and the joint finances they were set to embark on. For, they reasoned, if the marriage ever fell part, they would know what was at financial stake.

The couple represents a trend that could redefine the laws of marriages in the not-so-distant future. The romantic notion that matters of the heart dictate marriages is set to take a beating in urban India. A very small but select group of people would prefer to be smart and sure before they prepare to take the step.

Pre-nuptial agreements ? or pre-nups, as they are popularly known ? are on the rise among affluent urban Indian couples. It is a trend that has been borrowed from the West where celebrity couples ? and even the more mundane kinds ? sign on the dotted line, dividing their finances and assets, well before they slip on their rings. But lawyers caution that agreements of the kind would have little bearing in an Indian court. Says Mrunalini Deshmukh, advocate, family court, Mumbai: ?Any agreement contrary to the public policy is not tenable. A pre-nup cannot be executed in a court of law. While there are federal laws in the West that provide for such an agreement, the Hindu Marriage Act of 1955 and the Christian Marriage Act of 2002 do not sanction this. It can be at best considered an MoU (memorandum of understanding).?

But legal or not, the trend seems to be catching on. Last week, Deshmukh turned down a proposal from a prominent Mumbai businessman who asked her to draft a pre-nup for his daughter.

In another case, a divorced NRI based in Dubai wanted a pre-nup before preparing to enter into a second marriage. Unable to find a lawyer who was ready to draw up a contract for him, he finally chose to be married in South Africa, as the law there sanctioned the provision.

Not everybody is convinced that a pre-nup is the answer to bitter financial wrangles that couples seeking a divorce often get mired in. Advocate Kranti Sathe, in fact, believes that it doesn?t always make financial sense. Sathe argues that with a pre-nuptial agreement in place, both parties could lose out on benefits in the event of a divorce.

?The agreement is drawn up with reference to the couple?s present financial situation. But since the agreement is not updated in the course of the marriage, the increase in the partners? finances in this period lies ignored. In the event of a divorce both partners stand to lose a sizeable chunk, if the agreement is put into effect,? says Sathe.

The concept of the pre-nup, however, has been in existence in Muslim marriage since its inception. The nikahnama provides a pre-condition that can be set before or even anytime in the course of a marriage. Niloufer Akhtar, advocate, family court, Mumbai, says. ?The majority within the community are illiterate and ignorant, and remain unaware of the dictates of Muslim law.?

Akhtar refers to a case in 1920 where the woman, prior to her marriage, had demanded that the right to divorce would rest with her. In another case nearly a decade ago, a single mother ? a Christian ? entered into a nikah, but demanded that her son be allowed a Christian upbringing and that after the second marriage her husband should provide Rs 3,500 towards maintenance of the child. In yet another case, a Muslim bride had put down on paper that her husband buy an apartment for her before the wedding and that he pay her Rs 5,000 every month in maintenance. If he failed in a single payment in the first six months of the marriage, she would have the right to divorce him.

?The pre-nuptial agreement would be recognised in the public policy in future. That would resolve niggling matters of finances and acquisitions,? says Akhtar. ?Trust and faith are the basis of marriage. But the value system is changing.?

Anjali Chabaria, a psychotherapist based in Mumbai, feels that although the trend is in its infancy, in the face of messy divorces people feel the need to put the contours of a financial break-up down on paper. ?Educated couples who have achieved professional landmarks seek marriage to fulfil emotional needs. They are not in it for monetary gain. At the same time, they are aware that emotional ties, although a source of strength, are essentially fragile. Which is why they consider getting all practical issues out of the way, if only to bring some bliss into their marriage,? she says.

Chabaria envisages a growth in the demand of pre-nups, given that marriages these days are struck on the Net ? in chat rooms and through dotcoms. In the absence of the trusted matchmaker, couples remain somewhat anxious about many practical issues. ?This leads to reluctance to commit. The pre-nup would provide some clarity about their future,? she adds.