shreya

I do, you do...but just sign here

Posted by shreya on in Analysis

Around two decades back, India had a negligible divorce rate. Even today, compared to urban countries like USA and Sweden, India has a significantly low divorce rate. But now the number of divorce petitions being filed is rapidly increasing, especially in urban India.

A new bill-Marriage Act (Amendment) Bill 2010 is pending in the Parliament. This bill will introduce three significant changes in divorce laws in India.

First, it will introduce irretrievable breakdown of marriage as a ground for divorce.

Second, it will give wives a 50% share in immoveable property of their hubbies.

Third, adopted children will be treated at par with biological children in inheritance of property.

This bill is highly controversial and has raised various issues, the most important being that it is gender biased. Many advocates believe that the 50% share of divorced women in husband’s residential property will increase the number of pre nuptial agreements. A pre nuptial agreement is a contract entered into prior to marriage and includes provisions for division of property and spousal support in the event of divorce or break up of marriage. Contradicting the common myth that pre nups are for the wealthy or the celebrities, more and more Indian couples are signing pre nups. Though it sounds highly unromantic, it saves the couple from the disastrous aftermath that usually follows a divorce.

As they say break ups are never easy. However, with the finance part well tackled by this wonder drug, some burden is definitely shredded off the shoulder.

Nowadays, marriage has become secondary to career and for most urbanites the wedding bell rings after the career is set. So the spouses bring property of their own and they would never want their lives to fall apart because of a wrong choice. The smart thing to do in such a situation is to sign a pre nupt. With so many issues resolved, this little piece of paper in the wedding corsage could be magical.

In India, prenuptial agreements are not governed by the Indian marriage laws, but by the existing contract laws. Under Section 10 of the Indian Contracts Act, prenuptial agreements have same sanctity as any other contract, oral or written. Thus, lack of a proper law often makes judges to sideline pre nups.

But necessity is the mother of invention. In this era of quick marriages and quicker divorces, pre nuptial agreement is the need of the hour.

"talented"

Comments

A Student 8 Jun 2012, 14:58
+0 -0
To start with this article seem to be a biased one. If this bill has some pros but there are cons which we need to look into. Pre nuptial agreements are generally followed in foreign countries like US and Swedan etc. Instead of decreasing the divorce rate this bill seems to go the other way round. The wife will now marry just to get only the maternal benefits. Why not share the wife's property after the divorce. Why not share the assets which a women acquire during the marriage called as "Stridhan" under section 16 of Hindu Marriage Act. Under Hindu Act this property is strictly the property of women. I am sure that there will be flood of divorces in courts which will further increase the backlog of cases(a major problem in judiciary). The positive point which the author "Me" has missed is that the time period to file a petition for divorce has increased to 3 years in the proposed bill. Marriage in India is a Sacred institution which can't be based on the pre-nuptial agreements. Marriage in india is not a contract it is as they say "Saat Janmo Ka Saat". The new ground as recommended by the Law Commission of India in its 217th report on ‘Irretrievable Breakdown of Marriage’. Now the interpretation of this ground should be left to judiciary. But prima facie this bill seems as mere harassment towards men. Hats-off to our Politicians for enforcing Gender discrimination. If you guys have self-esteem, then scrap this stupid bill. Avoid plan for contract marriages. Girls can make lot of money very easily through these so called "Pre- Nuptial agreement".
A Student 9 Jun 2012, 03:13
+0 -0
To start with this article seem to be a biased one. If this bill has some pros but there are cons which we need to look into. Pre nuptial agreements are generally followed in foreign countries like US and Swedan etc. Instead of decreasing the divorce rate this bill seems to go the other way round. The wife will now marry just to get only the maternal benefits. Why not share the wife's property after the divorce. Why not share the assets which a women acquire during the marriage called as "Stridhan" under section 16 of Hindu Marriage Act. Under Hindu Act this property is strictly the property of women. I am sure that there will be flood of divorces in courts which will further increase the backlog of cases(a major problem in judiciary). The positive point which the author has missed is that the time period to file a petition for divorce has increased to 3 years in the proposed bill. Marriage in India is a Sacred institution which can't be based on the pre-nuptial agreements. Marriage in india is not a contract it is as they say "Saat Janmo Ka Saat". The new ground as recommended by the Law Commission of India in its 217th report on ‘Irretrievable Breakdown of Marriage – Another Ground for Divorce’. Now the interpretation of this ground should be left to judiciary. But prima facie this bill seems as mere harassment tactic towards men. Hats-off to our Politicians for enforcing Gender discrimination. If you guys have self-esteem, then scrap this preposterous bill. Avoid plan for contract marriages. Girls can make lot of money very easily through these so called "Pre- Nuptial agreement".
Lawyer 11 Jun 2012, 14:02
+0 -0
As far as I am aware, pre nups are unenforceable on the grounds of being opposed to public policy. Normally, couples enter into MOUs of sorts. However, I'm no family law expert so corrections are welcome.
A Student 11 Jun 2012, 16:26
+0 -0
The basic objective of Pre Nups is that neither of spouses will ask for alimony after divorce notwithstanding its fairness. Both husband and wife will enter into the agreement as adults. But we can’t bar illiterate adults from contracts and so all the attendant evils come into play as well. But what to do? Now alimony is the maintenance given by either of the spouses to each other. In India, this is not the case. It is husband who need to give alimony to his wife and not the vice-versa. So applying Pre Nupts in India is rather very difficult considering husbands will get nothing out of the assets of wives, where the wife is having more property than husband. Both of them need to get legal advises from their lawyers which is a main condition to make the pre nups valid. So the principle of equal sharing shall not apply in India as per this bill which is my main point. I never mentioned about the legality of Pre nupts in India. One cannot deny that divorce rates will surely increase if this hilarious bill is passed. It is obvious if any contract contravenes public policy it is not enforceable i.e. void( Section 23 Contracts Act). IN INDIA WE TREAT MARRIAGES AS A SACRED RITUAL NOT MOUs :P
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