• Waiver of maintenance agreement under Special Marriage Act

I have done some research on pre nuptial agreements in India, some lawyers say it is valid under contract act if marriage is solemnised under special marriage act with the contract signed together, while other lawyers argue that any contract which keeps marriage as a clause is not valid.

My would be wife has agreed to sign any agreements/affidavits that says that She will not get any maintenance or share in property(unless co-owned).

I want to know how do I proceed with this without worrying about its legal validity. 

Additionally, can I ask for a contract that states that in future if she is to receive any alimony/maintenance/ assets post divorce from me, she has to donate 1.5 times the same to specific charity institutions from her own pocket. My sole objective is to keep an incentive for her to stay in marriage forever and avoid paying her financially if ever the marriage fails. And last thing, if she declares in an affidavit before marriage that she is well educated and able enough to meet her finances in future, will be be useful in case of divorce, and she cant demand maintenance.
Asked 1 year ago in Family Law
Religion: Hindu

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9 Answers

Section 23 of the Indian Contract Act, 1872 specifically states that an agreement is considered to not have a lawful object if it is opposed to public policy. An agreement without a lawful object cannot be a legal contract .

Contracts governing marriages between persons residing in India are considered to be against public policy and so, not valid.

2)Prenuptial agreements or marriage contracts  are not enforceable in any court in India. Such agreements have persuasive value only, 

3)The court, while granting divorce and/or deciding maintenance or division of properties, may consider such a contract to guide its decision, but it is not bound by the terms of the contract.

 

4)Under the Special Marriage Act of 1954, if a marriage is solemnized along with the proper registration of all the documents of declaration at the Registrar Office, then prenuptial agreements are considered as legally binding.

 

5) if there is substantial difference in your incomes v court can award wife maintenance 

Ajay Sethi
Advocate, Mumbai
94514 Answers
7485 Consultations

5.0 on 5.0

It's valid but if she invokes any law of land in which ahe is entitled to maintenance for domestic violence and cruelty then position will be dicey

Prashant Nayak
Advocate, Mumbai
31800 Answers
175 Consultations

4.1 on 5.0

Any such agreement is not legally val;if hence it canot be enforced in law.

If it is not enforceable in law then what is the purpose it is going to solver,

The law is very clear that either of our cannot claim rights on each other's properties at least not during the lifetime of each other.

The claim for maintenance or alimony would be as per provisions of law and yor agreement cannot nullify the law involved in it, hence in whatever manner you may enter into an agreement in this regard, may not be recognised by laws.

 

T Kalaiselvan
Advocate, Vellore
84709 Answers
2172 Consultations

5.0 on 5.0

Dear Client,

There is no escape route unless there is an order from the Court that the wife is not entitled to get maintenance from the husband.

In matrimonial cases, the maintenance is claimed on the basis that the claimant has no independent income to support.

 

Thank You.

Anik Miu
Advocate, Bangalore
8742 Answers
109 Consultations

4.7 on 5.0

Pre-nuptial agreement are not legally binding in India as per the prevalent laws. 

So, you cannot escape payinng maintenance just on the basis of such agreement as the same would not be considered by Court by virtue of it being void as per the provisions of the Indian contract act.

Such agreement can act as a deterrent if your to be wife doesn't know about the law or it's validity but as I have said earlier it cannot be enforced in court in India.

Court would award her maintenance not on the basis of her income during marriage but on the income when she files for maintenance, so the clausethat she is well educated and able enough to meet her finances in future would have no bearing in court.

Siddharth Jain
Advocate, New Delhi
6303 Answers
102 Consultations

5.0 on 5.0

Refer to Section 23 and Section 28 of Contract Act. You will get your answer.

Ravi Shinde
Advocate, Hyderabad
4041 Answers
42 Consultations

5.0 on 5.0

It would be valid .

 

Wife has  agreed to pay x amount as monthly maintenance to spouse 

 

it is not against public policy 

 

 

Ajay Sethi
Advocate, Mumbai
94514 Answers
7485 Consultations

5.0 on 5.0

No such agreement is legally valid or enforceable in court of law. 

Law do not entertain such fancy ideas because in India the prenuptial agreements are not valid because there's no provision in law for that. 

T Kalaiselvan
Advocate, Vellore
84709 Answers
2172 Consultations

5.0 on 5.0

You can execute it but any contract is bound by provisions of Indian contract act and same needs to be in consonance with it

Prashant Nayak
Advocate, Mumbai
31800 Answers
175 Consultations

4.1 on 5.0

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