Before We Even Talk About Marriage
Prenuptial agreements are not part of India’s legal vocabulary, and in a country where marriage is still treated as a sacred social contract rather than a civil one, the very idea sounds, to many ears, deeply unromantic. Almost transactional. Suspicious, even. That discomfort is understandable. It is also, in the cold light of courtroom reality, becoming very difficult to justify.
India does not have a statutory framework for prenuptial agreements. There is no dedicated legislation. Courts have occasionally treated such contracts as being against public policy. What exists instead is a sprawling, contradictory body of matrimonial law that was designed, in parts, to protect vulnerable women from exploitation, and has, in practice, also become a mechanism through which divorce can be turned into a financially devastating event for men. Sometimes catastrophically so.
This is not a comfortable thing to say. It is also, according to legal practitioners, court records, and reform advocates who have spent years documenting these patterns, increasingly impossible to ignore.
What the Rest of the World Did
Prenuptial agreements have existed in various forms across legal systems for centuries. The ancient Romans had marriage contracts. Jewish law has the ketubah. Medieval European property law recognised pre-marital settlements.
Modern statutory recognition began gathering pace in the twentieth century. The United States passed the Uniform Premarital Agreement Act in 1983, giving prenuptial agreements clear legal standing across most states. The rationale was straightforward: two adults entering a legal arrangement ought to be able to define its financial terms in advance, particularly in an era when both partners increasingly brought independent incomes and assets into a marriage. Germany and France had long recognised matrimonial property regimes that couples could define before the wedding, proceeding from the same principle of autonomous financial consent. The United Kingdom, despite lacking specific legislation on the matter, saw a decisive shift with the Supreme Court’s 2010 ruling in Radmacher v Granatino, where the court held that a properly negotiated prenuptial agreement should be given decisive weight.
The core principle underlying all of these was autonomy. If two informed, consenting adults freely agree on financial terms before marriage, the state has limited justification for overriding that agreement.
Goa’s Quiet Exception
India has a working example sitting quietly in its own territory. Goa operates under the Portuguese Civil Code of 1867, which survived the territory’s integration into the Indian Union and continues to govern family and personal law for its residents. Under this code, couples can choose their matrimonial property regime before marriage. The default arrangement is communion of assets acquired after marriage, but spouses may opt for separation of assets or full communion of all property. This functions, in effect, as a legally recognised pre-marital property arrangement. It is not perfect, and it does not address alimony directly. But it proves that the sky does not fall when Indian couples are permitted to make advance financial decisions about their marriage.
The rest of India has no such option.
A Country With Multiple Traditions of Women’s Power
Before examining where the law has gone wrong, it is worth acknowledging where India’s social history complicates the standard narrative. India is not, and has never been, a uniformly patriarchal society. The Khasi and Garo communities of Meghalaya are among the most documented examples of matrilineal power. In these societies, property descends through the female line, the youngest daughter typically inherits the ancestral home, and the husband moves into his wife’s household. The Nair community of Kerala practised the marumakkathayam system, under which property passed from a man not to his own children but to his sisters’ children, a practice that governed significant property holdings until mid-twentieth century legislative reform. Certain communities in coastal Karnataka and parts of the northeast have similarly accorded women positions of considerable domestic and economic authority.
A legal architecture built on the blanket premise that wives are universally economically subordinate sits uneasily in a country where some communities have spent centuries doing things rather differently.
How Indian Law Works in Practice
Maintenance and alimony in India are governed by an overlapping maze of statutes, each layered onto the next at different points in legislative history:
- Section 144 of the Bharatiya Nagarik Suraksha Sanhita (which replaced Section 125 of the Code of Criminal Procedure), allowing a magistrate court to order maintenance independently of any divorce proceeding
- The Hindu Marriage Act of 1955, under which alimony and permanent maintenance can be claimed during and after divorce
- The Hindu Adoption and Maintenance Act of 1956, which creates a separate maintenance obligation enforceable regardless of marital status
- The Protection of Women from Domestic Violence Act of 2005, which allows monetary relief, residence orders, and interim maintenance through a civil remedy that runs parallel to any criminal complaint
- Various personal laws for Muslim, Christian, and Parsi communities, each with their own maintenance provisions and jurisdictional quirks
It is worth noting here that Muslim personal law, through the pre-negotiated mehr stipulated in the nikah agreement and through the khula mechanism for wife-initiated separation, and certain Christian denominational frameworks, through church-based conciliation bodies, do offer pathways to marital resolution that can be reached without immediate recourse to a civil court. That said, both Muslim and Christian spouses retain the full option of approaching secular courts in India to resolve matrimonial disputes under civil and criminal statutes that apply to all citizens regardless of faith.
These provisions were built largely to protect economically dependent women in a society where female financial independence was the norm in some regions and was the exception in others. That society still exists. It is, however, not the only society that exists in India today.
What these statutes create, particularly when deployed together, is a situation where a wife can simultaneously invoke multiple provisions across multiple forums, adding fresh legal weight at each stage. Each of these provisions has a legitimate and necessary purpose. Each of them is also, as several High Court judges have noted in passing over the years, capable of being weaponised.
The numbers that emerge from inside the profession are striking. Advocate Mrunalini Deshmukh, one of India’s most senior matrimonial lawyers with over two decades of practice in Mumbai, has stated on the record that roughly ninety per cent of divorce cases that are not settled by mutual consent end as a fight over alimony. She has described such cases as mostly bitter conflicts about money, driven largely by vengeance rather than genuine financial need. That assessment, coming from a lawyer who has spent her career inside these courtrooms rather than commenting on them from outside, is a candid professional verdict on what the system has become in practice.
And there is, sitting at the edge of all this, a quiet ecosystem of family court lawyers, litigation specialists, and financial intermediaries who profit enormously from proceedings that extend for years. The incentive, for that ecosystem, is never to settle quickly.
Madhu Kishwar and the Danger of Well-Intentioned Laws
Madhu Kishwar, academic and founder of the journal Manushi, co-founded in 1978, has spent decades at the intersection of women’s rights and legal reform in India. Her trajectory is instructive. In the 1980s, she was an active voice in campaigns against dowry abuse and domestic violence. By the 1990s, documented in her 1999 Oxford University Press book Off the Beaten Track, she had shifted her focus to the perverse consequences of the very legislative remedies she had once supported. Her central argument was that feminist-driven laws, often advocated without regard for their potential misuse, had begun to foster adversarial family dynamics and to displace the organic, community-based mechanisms that had historically resolved marital disputes without prolonged litigation.
In a 2017 piece published by The Print, she named the problem with unusual directness. Writing about the legislative landscape around matrimonial and anti-rape provisions, she stated that the lunatic fringe of feminism, especially those from foreign-funded NGOs, gets away with pushing such draconian legislations. She described the relevant laws as being enacted under the pretence of strengthening women’s rights and called for urgent legislative correction. This was not a casual remark. It was a considered, published, on-the-record statement from a scholar who had spent decades working from inside the women’s rights movement before arriving at that conclusion.
Kishwar has gone considerably further in her documented body of work, naming specific organisations she believes have used foreign funding to shape Indian law in ways that bypass local community input entirely. Among the entities she has identified in various published critiques are ANHAD, MAJLIS, the Lawyers Collective, the Centre for Science and Environment, the Voluntary Health Association of India, and Citizens for Justice and Peace. Her argument is that these organisations function as knowledge brokers, translating international human rights frameworks into Indian legislative language without adequate consultation with the communities those laws are meant to serve, producing legislation that is imported in its ideological assumptions and frequently punitive in its actual application on Indian ground. Notably, Kishwar has consistently refused foreign funding for Manushi itself, describing it as a deliberate refusal to allow the institutional dependency that she believes compromises the independence of organisations that accept money from Western donor agencies.
Her concern about community-based dispute resolution was equally documented. The khap panchayats of north India, whatever their well-documented failings on questions of caste and honour, did, in their more constructive dimension, settle marital disputes with a speed that the formal court system has never matched. Kishwar’s position was that traditional kinship structures should not be discarded merely because they were old, as long as they did not operate through violence or coercion. Given what Indian family courts look like three decades later, it was a prescient one.
The Men Who Did Not Survive
In December 2024, Atul Subhash, a thirty-four-year-old technology professional working in Bengaluru, died by suicide. He left behind an extensive video and written note describing years of alleged legal pressure, multiple cases filed across different jurisdictions, and what he alleged was institutional indifference to his suffering. His case became a flashpoint. Protests were held. Parliament was asked questions.
He was not alone. Syed Shafath Ali, a techie from Hyderabad, died by suicide in 2024, with his family alleging that sustained matrimonial litigation had broken him over time. A software professional from Pune, identified in media reports as Pradeep, died under similar circumstances in the same period. These are not aberrations. They are recurring entries in a grim registry that men’s rights organisations have been maintaining with increasing documentation for over a decade.
“The man in the middle, the salaried husband with no powerful connections and no war chest for litigation, is the one who is broken by the system. Not by the law’s stated intentions. By the gap between what the law says and what actually happens in district courts and police stations every working day.”
Elite men and elite women tend to navigate these laws on their own terms. So do women and men cynical enough to exploit them strategically from the start. And the suffering radiates outward. Mothers are named in complaints. Sisters are dragged into proceedings. The family is prosecuted alongside the individual.
The Foreign Influence Question
In 2016, the Ministry of Home Affairs cancelled the FCRA registration of the Lawyers Collective, the prominent legal advocacy organisation co-founded by senior advocate Indira Jaising, on the grounds of FCRA violations. That cancellation was contested and litigated. Whatever the final judicial resolution of those specific allegations, the episode established one documented fact: that prominent Indian legal advocacy organisations had been receiving foreign funding and deploying it to push specific legislative agendas. The Lawyers Collective had been publicly and actively involved in drafting and advocating for the Protection of Women from Domestic Violence Act of 2005. That is a matter of public record, not allegation.
When a scholar who was herself a founding figure of the Indian women’s rights movement publicly identifies named organisations, describes their methodology, and argues that they have systematically translated foreign ideological frameworks into Indian law while bypassing grassroots Indian voices, the concern can no longer be dismissed as reactionary or fringe. Kishwar witnessed this process from within, and her published record on the subject spans decades.
The concern is not that women’s protection is a bad goal. The concern is that the specific legal architecture that was built may have been shaped more by globally funded advocacy frameworks than by the actual conditions, traditions, and needs of Indian families.
What Reform Actually Looks Like
The case for legally recognised prenuptial agreements rests on three linked arguments:
- Autonomy: consenting adults should be able to set the financial terms of their marriage before it begins, without requiring judicial permission to do so
- Efficiency: a properly executed agreement with a built-in mediation clause reduces the scope for protracted multi-forum litigation over assets and maintenance
- Equity: a no-alimony clause, freely entered into by both parties without coercion, ought to be enforceable by a court, and that clause should apply equally to both spouses without either being met with institutional mockery for attempting it
Such agreements should be brief. Written in plain language. Registered before a notary or registrar. They should include a mandatory mediation clause, requiring certified mediation before either party can approach a court. Mrunalini Deshmukh herself has publicly emphasised that lawyers have a duty to encourage mutual settlements in matrimonial disputes, describing prolonged litigation as a threat to the very foundation of society. That is not the voice of a reformer. That is the voice of a senior practitioner speaking from decades of professional experience. Civil matrimonial financial disputes have no business being in criminal courts in the first place.
The Judiciary Is Not a Marriage Counsellor
India’s courts carry one of the most severe case backlogs in the democratic world. Every matrimonial dispute that crawls through a district court for a decade displaces other litigation. Every interim maintenance hearing takes time that a criminal trial urgently needs.
On November 16, 2025, at the Constitution Club of India in New Delhi, the Ekam Nyaay Foundation hosted its annual conference ahead of International Men’s Day. The keynote was delivered by former Chief Justice of India UU Lalit. Speaking on the record, he cited a national conviction rate hovering around twenty per cent across criminal matters, and noted that in matrimonial cruelty cases that figure dropped below five per cent. He warned that the system must be redesigned so that innocent individuals are not dragged into endless trials. Former Bombay High Court Judge Justice Sadhana Jadhav, also speaking at the same event, challenged the foundational assumption that a woman would never fabricate an accusation, and pointed out that when a man is accused, the suffering extends to his children, his parents, and his siblings.
It is not an argument against protecting women from genuine violence or exploitation. Those protections are necessary and must remain. It is an argument for a legal architecture that is honest about the present rather than frozen in the assumptions of 1955. A woman with a postgraduate degree and a salary is not the same person the Hindu Marriage Act imagined. Somewhere in India today, a man like Atul Subhash, or Syed Shafath Ali, is sitting in a district court waiting room, watching years of his life drain away in a dispute that a well-drafted prenuptial agreement and a competent mediator could have resolved in months. A man ground down by a decade of court dates, police notices, and interim maintenance orders is not a figure that Indian law currently has the vocabulary to fully see.
That vocabulary needs to be built. Prenuptial agreements, simple, voluntary, and fairly drafted, are a reasonable place to start.
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