Prenups in India: A Fight Against Patriarchy & Male Domination in Indian Society

The following is a point made by Ms. Jha on LinkedIn, and our response:

Comment from Ms. Jha:

India is a patriarchal society, and in such a context, the introduction of prenuptial agreements would likely result in male-dominated terms that disproportionately favor men. Legalizing such agreements could potentially compromise women’s rights, as these contracts may be drafted under pressure or without equitable legal counsel. While the Atul Subhash case is indeed unfortunate, and there should be robust legal safeguards to protect men from false allegations or harassment, prenuptial agreements are not the appropriate solution.

One of the major demerits of prenuptial agreements is that they often fail to account for the dynamic and evolving nature of marital relationships. They are rigid documents that may not address unforeseen circumstances such as abuse, health issues or emotional trauma arising after marriage. These agreements can also undermine a woman’s right to seek fair compensation or protection from coercive situations that may develop later. No one can predict future hardships or power imbalances that may emerge over time; therefore, justice should be served based on actual damages and circumstances, rather than being constrained by pre-decided contractual terms that may no longer reflect the reality of the relationship.

Response from Prenup India:

Indeed, some parts of Indian society are patriarchal – and such agreements could protect women from patriarchal discrimination by securing their rights. For example, by making full disclosure of the man’s properties at the time of marriage so he cannot hide them later from her or the court.

Any contract signed under pressure, duress, or “coercive” action would be subject to criminal law provisions anyway, and would be void. Nothing in any agreement can prevent the victim from approaching the police.

As for the rigidity of prenups: They can be updated. There are provisions for the passage of time through standard clauses.

The prenup is designed to prevent & negate future power imbalances. In the event of significant change, the prenup is a clear snapshot of the past situation & intent of both parties.

This means that, if it is the intent of the “patriarchal” husband, as you say, to assert his “male domination” after marriage, then that will also be captured in the terms of the agreement and be immediately visible to the court.

For example, if the husband does not honestly disclose his properties at the time of signing, the wife will have evidence of malicious intent, and the court will have just cause to rule in her favour.

Most importantly: All personal agreements of all kinds (including registered documents like wills and gift deeds), no matter who signed them, can be challenged in court – so prenups would be legal but not final. Whatever the court says will always be final, even if the agreement is signed by a Chief Minister.

This is, always will be, and always should be the case.

No marriage certificate or prenup will immediately stop an evil husband from doing evil things – or an evil wife. Entering a marriage with that assumption or fear, however, is not sustainable or healthy and will only breed more suspicion and discontent. The marriage will fall apart later anyway. Prenups provide the opportunity to discuss these matters beforehand, make clear the intentions of both parties, and get everyone on the same page, while also enabling both spouses to enter the marriage on equal footing.

Read the original comment on LinkedIn here.