Today, 18th August 2017, I was at the National Commission for Women, attending the “National Consultation on Pre-Nuptials in India”. Below are the thoughts that I presented there.
My name is Virag Dhulia, I am from Bangalore and I have been engaged in creating awareness about the problems of the male world in the society for the past 10 years. During this period, I have spoken to tens and thousands of men who have been through extreme harassment, torture and crisis in life and helped them cope up with the situation. During my endeavor to help men, I have gathered enormous amount of data which has highlighted various anomalies in the system and the society alike wherein men are put at a disadvantageous situation, what with ours being called patriarchal society.
Before we talk about the feasibility of pre-nuptial agreements in India, it is imperative to get the right context w.r.t. Indian circumstances, especially when it comes to a matrimonial dispute and the gender based imbalances therein.
Much to our chagrin, India still views marriage as a pious union between a man and a woman and it’s the only relationship which allows mating of a man and woman socially and legally and this characteristic defines the uniqueness of this relationship.
The majority population of India is Hindu and Hindus consider marriage as a sanctimonious social institution and is also considered the basis of family which is the unit of our society. As a result, apart from law, even the psychology of the legal system is to discourage the practice of divorce. This leads to a very murky and complicated scenario wherein warring spouses often end up in long-drawn and multifarious litigations.
The multiplicity of litigation is agitated by the fact that there are 5-6 different laws under which the same marriage can be challenged in courts and almost all of these laws are biased against men like Section 498A. Apart from that, the Domestic Violence Act, The Dowry Prohibition Act, Section 125 CrPC, Section 18, HAMA to name a few which empower only women to raise a complaint whereas men only get to defend themselves. Compounded with above bias, the general social hatred against men makes the legal positioning extremely precarious and vicarious for men.
Such an atmosphere makes matrimonial litigations run for years together with only mud-slinging and washing of dirty linen in family courts and elsewhere. And of the factors which primarily drives the matrimonial disputes is financial i.e. the maintenance & alimony for wife and children that a man must cough out in order to come out of a tumultuous marriage. The other factor which drives cases for long is dispute arising due to custody and visitation of children.
Apart from the above personal factors, there are some other socio-economic factors which add years to the lifecycle of a matrimonial litigation like lack of knowledge of legal system in general citizens which is often exploited by lawyers to increase their income from litigations, conservative tendency of judges and mediators in attempting reconciliation between warring spouses, inflexibility of family members in letting go off strained relations, etc.
Advent of Pre-Nuptials:
It may be said that with the advent of pre-nuptials it could smoothen the process of separation and divorce by bringing in clarity with respect to,
- Division of financial assets like real estate, other movable and immovable properties, financial instruments, LIC policies, mutual funds, bank lockers, companies, stocks, dividends, futures, options, etc. post-divorce
- Evaluation of contribution of both spouses towards marriage and family
- Custody and visitation rights of children
- Expenses of children’s education
- Long term financial investments to secure children’s future (if any)
And thus pre-nuptials could play an influential role in reducing the huge backlog of matrimonial cases. However, it is important to understand some grave challenges we may face in implementing the concept of pre-nuptials in India.
I am now going to talk about some of those challenges. This list of challenges is illustrative and not exhaustive of the humongous task of implementing pre-nuptials in India.
Acceptability: Pre-nuptial agreements come with the preconceived notion – what-if this marriage breaks? And this in itself could be a very big challenge especially in amending the Hindu Marriage Act because for Hindus, marriage is not a contract. Whereas, pre-nuptials view marriage as a contract, very close to Muslim personal law, which can be terminated with mutually agreed upon terms and conditions documented in advance. We would probably need a huge educational exercise in creating an atmosphere conducive to at least have a healthy debate about pre-nuptials to begin with.
Uniformity: India has a problem with its legal structure when it comes to marriage as the disputes in marriages and its culmination are governed by personal laws in India like the Hindu Marriage Act for Hindus, the Shariat Law for Muslims, the Special Marriage Act for Christians and court marriages and so on and so forth. Getting the various stakeholders of diverse religions on one platform when it comes to legalizing pre-nuptials could be a daunting task.
Retrospective Effect: On an average, annually 10 million marriages happen in India and currently the divorce rate is at approx. 5% which means 5 lac marriages are breaking per year. This means once pre-nuptials come into effect, there would be a vast number of marriages which could be disputed and would not have had any pre-nuptials. The moot question that remains open is, how would the disputes of those marriages be treated? It would lead to chaos if we have two separate mechanisms for dealing with matrimonial disputes.
Compliance: There are many open questions here as well which need deliberation, discussion and involvement of all the stakeholders like,
- Will it be mandatory to make a pre-nuptial once it is legalized?
- What if, the marriage breaks after pre-nuptials are legalized and there is no pre-nuptial signed for that particular marriage?
- Which personal law would be followed in inter-faith marriage?
- Will inheritance of women from their father’s property be considered in drafting pre-nuptials?
- Will there be any legal body for overseeing the implementation and execution of the pre-nuptial agreement?
- What, if a party fails to comply with the pre-nuptial terms and conditions?
Exclusivity: It is important to realize that the existing legal structures of multiple laws and multifarious gender biased matrimonial litigations is not serving any justice to either men or women, rather it is just serving the income of lawyers and subservience to the judiciary. Hence, it should be made mandatory that once a pre-nuptial is signed, no other litigation can be invoked merely to act as a pressure point in negotiations, except for the presence of incriminating and unflinching evidence backed by proper documentation.
My view is that the above challenges would require a thorough examination and analysis of the various realistic aspects in legalizing pre-nuptials in India and it is imperative that a neutral body oversees the implementation so that the interests of both men and women can be safeguarded.