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Prenups may become mandatory for all Indian marriages

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prasad1

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Is Minister of Women and Child Development Maneka Gandhi opening another minefield with the introduction of mandatory pre-nuptial agreement before marriage or will this proposed legislation help streamline the dissolution process of a marriage, given the spiralling divorce rates in our country?

Minister of Women and Child Development Maneka Gandhi has proposed a draft bill that will make the drawing up of a pre-nuptial agreement mandatory before all marriages.




Several lawyers have hailed it as a positive step forward which will ensure a less acrimonious ending to the present syndrome where both families first spend a huge amount of money at the marriage and then unfortunately, in case of a split, find themselves trapped in a ugly and messy litigation which can go on for years.
Gandhi believes that unlike in the West where prenups are being drawn up primarily by rich celebs to protect their wealth, a prenup in India must be tailor-made to the Indian context to ensure a wife gets proper maintenance in case she is abandoned by her husband.
The ministry’s proposal is that both spouses sign a full disclosure pact before their marriage in which they draw up a list of their financial assets and liabilities as also spell out how they will deal with other contentious issues including custody of children.
Gandhi emphasises that the most significant aspect of the prenup in the Indian context is that the wife would be entitled to maintenance which can be worked out in terms of a per cent share of the spouse’s earnings over a specific period.
The problem is that this fledgeling draft is being interpreted differently by different people. Senior advocate Rebecca John questions how a prenup can be transported to an Indian milieu.
“There is a major fallacy in the government argument about wanting both husband and wife to list out their financial liabilities because in India there is not practice of making full disclosures over financial assets. Rather, the contrary is the practice and whatever holdings are shown are done so for purposes of tax evasion. Wealth will be disclosed in the father’s name, some in the mother’s name, some in the brother’s name and so on and so forth. With full disclosure not taking place, how are we going to stop the woman from feeling cheated?” John asked.
Supreme Court advocate Kirti Singh, who has been an office-bearer of the All India Democratic Women’s Association, goes a step further and believes that before the ministry goes ahead and green signals legislation for prenups, they should have first introduced a law whereby both husband and wife are given the right to inherit equally property acquired post marriage. “All property should be deemed to belong to both parties,” pointed out Singh.
A majority of lawyers believe the most recent amendment to the Hindu Succession Law making daughters eligible to inherit ancestral property is not working in practice. John pointed out, “Despite this act it is not working in practice with many women being forced to sign relinquishment deeds to ensure they do not get access to this property.”
Advocate Malvika Rajkotia, who deals primarily with divorce cases, also believes access to Hindu Succession Act is largely restricted to the upper middle class women. “Which woman from a rural background has the courage to ask her father to give her a share in the ancestral property? In the same way, prenups comes across as a very elitist concept which can hardly be said to be in tune with Indian social reality.”
Rajkotia’s other interesting observation is that prenups are already being practised among the Christian community. “The Goa civil law has a provision for prenups and I personally know of a couple of instances where they have been drawn up. The point to be emphasised is that we already have a statute in place. We do not need another piece of paper -- we could do better to provide social empowerment of women,” said Rajkotia.

http://www.rediff.com/news/report/prenups-may-become-mandatory-for-all-indian-marriages/20151201.htm
 
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