Three States Of Marriage: Time For Urban India To Debate Prenuptial Agreements

Shivani (name changed) worked with one of the world’s leading technology giants in Mumbai for eight years before moving back Chennai, her hometown. At 31, stress at the workplace and an excruciatingly slow divorce process has been too much for her to handle.

“I need to get independence from my broken marriage before I can help my disrupted career, but my husband is doing all in his capacity to make it difficult,” she sighs.

Shivani wants to get married again in the future, but with no end to the divorce proceedings in sight, she expects little. “At the cost of my career, I am running a race against my husband, law, and time,” she says, breaking down.

Karan (name changed) does not want to get married again. “I wanted to remarry, but my wife slapped our family with a fake case of domestic violence. When she realised she could not prove the charges in court, she demanded an alimony that takes 60 per cent of my salary each month. She wanted to move out of the marriage because she was forced into it by her parents, as she says. Now, I hear she wants to get married to someone else, and here I am, paying the price,” Karan laments.

At 36, there is little hope for Karan to have a family of his own, given the constrained financial situation he finds himself in, even after the divorce.

Vivek, at 29, is sceptical about marriage. “Yes, I want to get married, but I read stories about false cases being filed in the name of domestic violence, dowry, and laws that are skewed in favour of women. As there are men [who are] unjust, so are women, but as a society, we are far from acknowledging this alternate reality. Ideally, there should be three states of any marriage – happy, sad, and insured,” he tells me.

Apparently, there is nothing universal about prenuptial agreements. For a majority of urban Indians, they are not even a necessity. So, to shed light on the premarital contract, we must look at the many perspectives of urban Indians today.

A prenuptial agreement (PNA) is a contract pertaining to the ownership of assets that a couple enters into before marriage to secure their interests in case the marriage falls apart. It can be implemented only if both parties agree to execute it in the event of a separation. From property to children, PNAs can encompass the monetary aspects and ensure a secure future for the children (if any) via settlements and financial independence for individuals. More importantly, it can help eliminate the lengthy proceedings that typically accompany a divorce case.

Marriage is more than just a legal union in India, for it revolves around religion, with The Hindu Marriage Act of 1955 applying to Hindus, Jains, Sikhs, and Buddhists, Parsi Marriage and Divorce Act of 1939, and the Indian Christian Marriage Act of 1889, thus making the debate around PNAs a tricky one.

Shivani contested for a divorce while Karan found himself dragged in a mutually contested divorce case. “I am squandering away my savings to get out of this mess as quickly as possible, or else, I will spend the best part of my 30s fighting this,” Shivani says.

Karan found himself out of the maze quickly, but at a hefty cost. “For me, it was about choosing between a psychological and a financial torture. I chose the latter.”

A mutually filed divorce case takes anywhere between 18 months and 24 months to be settled, during which time individuals arrive at an understanding on tangible assets and children. The case can also sometimes drag on for years, even for a decade, causing immense suffering for the families involved, and especially for the children.

Contested divorce cases are far more complicated. “In my case, my biggest fear was that my husband would not turn up for the hearing, or leave the country for business, leaving me like a cattle tied in the barn for years,” Shivani says.

Even with the assistance of the best divorce lawyers, a contested divorce case can take anywhere from three years to seven years for settlement.

As of now, PNAs have no legal validity in India. Yes, two parties can sign an agreement before entering into a marriage, and the courts will recognise the agreement if both the parties mutually agree to it and sign it without external pressure, influence, force, or threat. But all it will take is one party’s allegation – and the agreement can fall apart, leaving the individuals in a judicial loop. The other party could lodge a case of fraud if the agreement is broken, but it would only add to the struggles.

In a progressive move, the National Democratic Alliance (NDA) government is looking to legally acknowledge the existence of PNAs. The Ministry of Women and Child Development has raised the issue on a number of occasions since 2014, as they believe it will cease the injustice individuals have to endure within a broken marriage. According to a recent report in the Economic Times, a high-level meeting will be chaired in the third week of March to discuss PNAs with representatives and officials from the ministries of Home Affairs, Law & Justice, and Women & Child Development.

It would be wishful thinking to expect PNAs to be given legal recognition right away since the sanctity of marriages in India is directly linked to religion. Given how the debate around triple talaq was disrupted to portray it as a government move to ruin the institution of marriage, one can expect a strong backlash on PNAs from various parties. As I said earlier, there is nothing universal about PNAs, for what may apply in one case may not make sense in the other.

Let’s now look at the psychological, legal, and social aspects of PNAs.

This government, in a break from the past, has emphasised on human resources. Given that we have a pool of the youngest working population on Earth, there is a growing need to talk about issues like depression, mental stress, and suicides. It is not uncommon to come across stories in which an individual is driven to suicide after being unable to escape the shackles of a broken marriage.

In addition, the government’s concern for non-communicable diseases, especially cardiac diseases, must be discussed here. At the rate of 13 divorces for every 1,000 couples, PNAs are clearly not going to play a major role in combating non-communicable diseases or even eliminate urban depression. However, if a piece of legislation can eliminate one of the many factors that cause them, we must open ourselves to a debate on it.

Getting a life insurance does not increase the probability of us dying or committing a suicide, but it ensures financial stability for those we leave behind. So the argument that PNAs will enable more people to get a divorce is laughable. The institution of marriage must be celebrated, and rightfully so, but there is no reason why we can’t include a third state to marriage – the one where it is insured. If the marriage is not derailed, the agreement will be forgotten for good; if it does, the insurance can ensure that one’s individuality can be retained even if the marriage falls apart. Why must Karan carry the baggage of a broken marriage alone?

“I was looking forward to my hearing on 21st February, but the judge was on leave, and the next hearing got pushed to the end of April. This means another eight weeks of waiting before I can see my case going anywhere,” Shivani tells me. Thinking maybe her husband might be in some foreign country during that month, she wishes there was a way to make up for the absence of a judge.

Shivani’s story is not uncommon, for innumerable cases in India are pushed forward due to the absence of judges or one of the parties. This is where PNAs can be a game-changer.

First, they can, to an extent, reduce the burden on the judiciary. I must lay emphasis on the fact that legalising PNAs will not eliminate the stagnation of cases that plagues our judicial system, but it will give the grieving parties a better mechanism to end the marriage. Second, it could reduce the cost of hiring lawyers, which is shouldered by the individual, their families, or the couple. Third, it could help couples seeking a mutual divorce and even reduce the number of contested cases. Finally, it will solve the ‘exit’ problem individuals have to face during the divorce proceedings. Why must Shivani suffer because of the baggage our judiciary carries?

Legalising PNAs will witness aggressive backlash from all sections of society. For many families, even the thought of having a PNA would be outrageous, and this is where the government must put its digitisation programme to good use. For one, do not restrict the discussion and deliberation to the ministries alone, but have the youth involved. Have live chats online, interactive sessions on social media, town hall debates, and whatever else is feasible to gauge the mind of the urban Indian, given PNAs are not expected to have any traction in rural India for at least another decade.

The youth today is not afraid to speak its mind. However, the social construct around PNAs has been such that not a lot of thought has been given to it. Before legalising or even framing a law around PNAs, the views of the urban Indian must be taken into account. Even if less than 10 per cent of the population wants to go for a PNA, their opinion must be heard and respected. Why should Vivek fear the skewed law-and-order situation when it comes to marriages?

“It is time for our society to acknowledge that marriages in our social construct are not immune to separation or divorce,” Deepika Narayan Bhardwaj, a social activist working around issues pertaining to fake dowry and domestic violence cases, tells me. Director of the documentary Martyrs of Marriage, Deepika sees PNAs as an essential step that requires a thoughtful implementation.

“The government must ensure that the legislation comes across as progressive, gender neutral, and takes into consideration both the sides, unlike the Irretrievable Breakdown of Marriage Act which was skewed towards the females,” she adds.

In a society that attaches significant importance to marriages and a social stigma to divorces, PNAs can create an atmosphere where separation and divorce are accepted with a greater ease and open mindset. Besides, for people like Karan and Shivani, an early exit from the divorce proceedings brings the freedom to settle down again without the burden of excruciating and elaborate courtroom procedures.

“Eventually, after all the elaborate proceedings and vindictive allegations, it boils down to the financial assets and how they are to be divided,” Deepika adds. “PNAs must be seen as a documentation one goes for during marriage, and it is nothing to be felt ashamed about. Not only they ensure transparency, mutual trust, but also make the road easier for the involved individuals and their families should the marriage hit a rough patch.”

Legalisation of PNAs is easier said than done, for even in the twenty-first century, it is an idea ahead of its time for a country like India. Yet, it must be up for debate. PNAs should not be seen as an attack on the sanctity of marriages, or a passport to walk out of one, but as an insurance that protects the rights and independence of individuals and ensures financial security outside of a broken marriage, and also for the kids.

We have seen the two states of a marriage – one where it works and one where it doesn’t. I think it’s now time to include a third state that strengthens the existence of the first two, as well as that of the individual inside or outside of a marriage.