Is Legalisation of Pre-nuptial Agreements Futile in India?
People who speak for legalising pre-nups do not understand one important thing
Summary
People who speak for legalising pre-nups do not understand one important thing - Divorces in India are not a civil issue, even though technically they are.
Practically speaking, they are a criminal issue.
Why do we need to see divorces in India differently? Let’s analyze!
Two Types of Litigations
First the basics - there are two types of litigations: civil and criminal.
Civil litigations ask the courts to award an “order” - monetary or otherwise, but NEVER punishment.
However, criminal litigations ask the courts to punish the accused.
Remember - ‘criminal’ trumps ‘civil’.
Why Divorce is ‘technically’ a Civil issue?
In case of a civil litigation, the court sees the relevant documentary evidence, hears the arguments and forms an opinion.
This documentary evidence could be any prior contracts, wills, documents, etc.
The court can force the parties who signed the contract to act accordingly.
Divorce is technically a civil issue, where court awards a decree if it is satisfied. This decree can include aspects regarding alimony, child-custody, etc.
If pre-nups become valid in India, then divorce becomes simpler because, it is just enforcing the pre-nup contract, right?
NO!
Even in a future India, where pre-nups are valid, it is not as easy as it sounds.
The Dynamics of Broken Marriages
Often when a marriage breaks, there are hard feelings.
Good women deal with these hard feelings by taking (at least partial) responsibility, and negotiating for a mutual divorce on agreeable terms.
But bad women cultivate the mental model of ‘giving it back’ to the husband. And sadly, this is a sizable population.
The ‘Give it back’ Mentality
This ‘give it back’ mentality gives birth to the idea of demanding ridiculous amount as an alimony, even before the divorce petition is filed in court.
This demand happens through relatives/friends/direct phone calls.
However, men cannot agree to give that ridiculous amount, either because they dont have the ability or because they fell it is unfair.
Now, the negotiations start.
The Negotiations
In any negotiation, the parties look for a higher hand.
It is ridiculously easy for the wife to get a higher hand in negotiations, just by adding a ‘criminal’ angle to the divorce.
She does not even have to actually file a case - she can just threaten that she will. Adding the family of the husband to invoke his protector instinct - even higher hand!
The husband does not have this option, as there are no laws to enable that.
In some cases, some people with prior-experience advise the wife’s family. The wives may be advised to hint about a criminal case first, sometimes even file it, and then, start the negotiation for divorce.
Good women don’t take this advice but bad women do.
This gives them a higher hand from the get-go.
Two Possible Responses
There are two possible responses now.
- Some husbands break under this pressure and agree to the amount asked.
- Those who don’t have the means and do not want to take loans, have no other option than to say ‘no’.
Now, the wife feels ‘the pressure was not enough’.
She escalates from empty threats to actually filing a complaint in police. And oh, in that complaint, the wife may say “This monster also forced me emotionally/physically to sign the pre-nup”
The moment the complaint is filed, all hell breaks loose!
The New Power
Now, the wife gets the power to ‘take back’ the cases for a price - a power which she did not have before. More higher hand in negotiations!
The state also largely facilitate these negotiations under the name of “Alternate Dispute Resolution”, “Mediation” and “Counseling” just when a woman has made up her mind to file a FIR.
Some states don’t directly file an FIR but instead file a preliminary-document that enables them to facilitate these talks.
For example, in Tamilnadu, they file a CSR (Community Service Register), but not an FIR when a complaint is filed.
Is a Pre-nup valuable now?
Now, imagine a guy who is in between all this mess.
Do you think pre-nuptial aggreement would have any value for him? Certainly no!
Remember: Criminal trumps Civil
What do we do now?
So, then what do we do (may be in addition to pushing for legalizing pre-nups)?
- A strong push for punishing false accusers
- A strong push for punishing any false witnesses
- A strong push for accountability on investigating officers for false prosecutions
- A strong push for an ‘option’ to the accused to present their documentary evidence earlier in the proceedings.
- A push for allowing a ‘no-fault divorce’ option, where any party can ask for divorce without demonising their spouse.
Remember (4) above should be an option, not a force, as per the legal strategy desired by the accused.
In fact, the other developed countries do 1,2 and 3 rigorously. Not so much in India 🥲
So think of all these things before advocating a pre-nup to a guy who wants to get married shortly.
However, even in case the husband is actually guilty and the marriage did not break due to just ‘hard feelings’, in the due course of trial if a husband stands convicted, then all of my above arguments become invalid anyways.
Innocent until proven guilty💪