Call to rethink pre-nup plans

Maneka Gandhi's tall plans of introducing western-style pre-nuptial agreements, primarily to empower women within marriage, have hit a roadblock.

  • Published 24.11.15

New Delhi, Nov. 23: Maneka Gandhi's tall plans of introducing western-style pre-nuptial agreements, primarily to empower women within marriage, have hit a roadblock.

According to the fledgling proposal mooted by her women and child development ministry, both spouses-to-be would have to sign before marriage a full disclosure pact.

The agreement is expected to list properties, all financial assets and liabilities, and any other issue - custody of children, for instance - and facilitate a settlement in case of a divorce. Such a pact would have to be backed by legal counsel.

During the first round of consultations today, several civil society groups opposed the proposal, raising concerns about the practicality and practicability of pre-marriage contracts in a country where gender equality and, in many cases, equal property rights do not exist.

"We are unhappy with the proposal. In our experience, whenever there have been attempts to provide a woman rights within the home through a contract, the condition of the woman has become worse," said Radhika Chitkara of Partners for Law in Development, which was part of the consultations.

Chitkara said there were many provisions under law to protect women within marriage but they had largely failed to work in the country. She cited three examples:

♦ The provision under the dowry prohibition act of drawing up a list of gifts given by the bride's family at the time of the wedding so that these can be taken into account at the time of divorce. This is flouted for fear of censure from the groom's family;

♦ The custom of a Muslim groom paying mehr to the bride, which is mentioned in the nikaahnama (marriage document). This is an amount that the woman can claim at the time of marriage or any time during it but is often waived off entirely or a token amount is taken;

♦ The provision under the Hindu Succession Act that gives a daughter the right to her ancestral property. A woman is often made to sign a deed relinquishing the property in favour of her brothers.

Chitkara continued: "So, none of these have worked. In fact, in countries where pre-nups exist, women have more financial rights, more social security and equal property rights. These do not exist in India. In most cases, women are married off without their consent. How will women draw up pre-nups if they don't have basic rights?"

Gauri Chowdhury of Action India, an organisation working for gender equality that was also invited to the consultations, said: "There is no clarity on why this needs to be discussed at this point and so suddenly....

"Instead of concentrating on pre-nups, the ministry should see that women are not forced into marriage and there is proper implementation of the laws that already exist to protect them."

Chowdhury said in western countries where pre-nups existed, the rate of divorce was much higher than in India. "It was also discussed that men are more keen on pre-nups than women basically to protect their assets, which is the case worldwide. In this context, I don't think that this system has any relevance in India at this point."

Pre-nuptial agreements are often highlighted by the western media not because they are popular but because of the exorbitant amounts of money involved in the settlements. Some unofficial studies have said that less than 5 per cent of the world's married or engaged couples sign pre-nups.

In India, such agreements are not recognised by law. Under the Indian Contract Act of 1872, pre-nuptial agreements are void under the law. None of the marriage acts in India provides for pre-nuptial agreements.

"We think the concept needs more thought. The ministry needs to rethink how this is going to benefit women. We need to understand that pre-nups will work only when there is equality in relationships," said Geetha Nambisan of Jagori, a women's rights group.

"To what extent is such equality present in India? Unlike the West, in India the ministry needs to factor families in to the agreement as well."

Maneka's ministry has asked all invitees to reconvene for a second round of talks with their suggestions within a month.