Wednesday, Nov 14, 2018 | Last Update : 09:42 AM IST
Introducing the notion of pre-nuptial agreements will transform the sacramental Hindu marriage into a purely contractual obligation.
The ministry of women and child development held a high-level consultation on March 26 to push forward its agenda of introducing the concept of pre-nuptial agreements within Indian family law. A similar idea was floated by the ministry in November 2015, but it couldn’t make much headway as the proposal faced severe opposition from senior officials who felt that introducing such a concept would change the sacramental character of Hindu marriages.
But since women and child development minister Maneka Gandhi has been pushing for it, the idea has surfaced again. Ostensibly, this is being done to secure the rights of women at the time of divorce. “Divorce cases in India often run into several years of courtroom battles over property, assets and maintenance, and women often end up losing out on their rightful share. If the terms of property division and maintenance are clearly spelt out in a legally valid document prior to marriage, it would ensure women get the assets and support they are entitled to without going through lengthy litigation,” the minister said.
But there seems to be a hidden agenda too — of saving the precious time of our overburdened courts. Though we are quick to enact progressive laws — maintenance laws, the Domestic Violence Act, Family Courts Act, etc — the implementation of these laws is dismal. It is obvious that courts dealing with women’s rights have failed to protect women. Issues of property division, child custody and maintenance have become highly contested. While this works out to be a boon for matrimonial lawyers, it is a bane for litigants, more so, for women, who lack the staying power to engage in long-drawn litigation. The courts have tried to deal with this by referring the couple to mediation, where they can mutually arrive at an agreement. But subtle pressure is exerted during these proceedings upon the wife to settle on the husband’s terms. The wife who refuses is seen as stubborn and overdemanding. Many mediators, including judges, function from the patriarchal premise that family assets belong exclusively to the husband.
To cut short these problems, introducing the notion of pre-nups (as they are popularly referred to) is viewed as a magic wand, since it sounds progressive (and Western), where the parties themselves settle their future rights at the time of entering into marriage. A simple solution to the problem at hand, or so it seems. If women are being deprived of their rightful share in family assets, they themselves are to blame for not being prudent, diligent and farsighted!
But how will women, who are usually married at a young age, be in a position to decide their future economic entitlements at the time of marriage? And do they have the autonomy to do so?
There are even deeper concerns here. Despite codification, Hindu marriages continue to be governed by a sacramental notion that a bejewelled bride is offered to the groom (sahalankar kanyadhan). Further, it has to be topped up with dowry to make amends for her lower status. Within this patriarchal premise, the bride’s family is placed at a lower plank, and they lack the negotiating power to strike a favourable deal for division of matrimonial assets at a future date. Against this ground reality, how will a pre-nuptial contract between the parties secure the rights of women?
Introducing the notion of pre-nuptial agreements will transform the sacramental Hindu marriage into a purely contractual obligation. Are our overwhelmingly Hindu parliamentarians ready for this? This is the moot question which the bureaucrats were trying to raise. Unless the Hindu marriage sheds its sacramental veneer, it will not be possible to introduce the concept of pre-nup into the Hindu law of marriage.
Since the Islamic law, from its inception, viewed marriage as a contractual obligation, the nikahnama (marriage contract) provides for conditions to be written into it to secure the future rights of the bride. She can even divorce herself if the husband violates these conditions. The same can also be enforced in a court. In addition, instead of the Hindu notion of dowry, the Islamic law provides for mehr, a sum which the groom must assure as the future security of the bride in her matrimonial home. Indeed a revolutionary concept for 7th century Arabia.
But if we look around, we notice that mehr amounts have become paltry and the Hindu notion of dowry has crept into Muslim marriages, which sets off the safeguard which the Islamic law provides for women.
Though conditions can be written into the nikhanama, a Muslim bride, similar to a Hindu bride, is not in a position to lay down conditions in the nikahnama despite the religion granting her this right. During our discussions about including conditions in the nikahnama, we were informed that it is inauspicious to discuss the breakdown of marriage when entering into it. So in most cases, beyond the paltry amounts of mehr, no conditions are included in the nikahnama or iqrar nama(pre-nuptial contract).
We also have the example of the Goan law which provides for a pre-nuptial agreement. This is based on the continental (European) law, which transformed Christian marriages from sacrament into contracts in the early 19th century, and the Portuguese introduced it in their territories. But experience says that women are better off if they do not enter into these contracts as the notion of community property (joint family property) protects them better since the husband can’t dispose of the family assets without her consent, at least notionally. Pre-nup agreements are drawn by wealthy husbands to wriggle out of the situation where the wife is given the right only to a paltry amount as maintenance. At the time of marriage, women do not understand the implications of signing on the dotted line.
At the high-level meeting, lawyers and activists who were present felt that rather than rushing into it, there is a need for further evidence-based research to understand the ground reality. This was quickly turned into a project of producing a document based on the experience of Western countries which permit such agreements. But Indian realities are very different, and merely borrowing ideas from the West may not suit Indian conditions.
While discussing these problems at a meeting which lasted just barely about an hour, some of us made a valuable suggestion that since a marriage under the Special Marriage Act (SMA) is purely a civil contract, the option of a pre-nup agreement should be introduced within this law. This would be easier to bring about, since registering the marriage under SMA is purely optional. This would also give a boost to the government agenda of bringing a Uniform Civil Code (UCC), since SMA is our optional civil code.
But the government does not seem to be interested in adopting these workable solutions towards the UCC. The interest of the present government seems to be merely to target the Muslim community, project them as backward and keep the issue of UCC on the boil till the next general election.