DR.

RAM MANOHAR LOHIA NATIONAL LAW UNIVERSITY

LUCKNOW

FAMILY LAW- 1

FINAL DRAFT ON :

PRENUPS UNDER MUSLIM LAW

SUBMITTED TO: SUBMITTED BY:

Mrs. Samreen Hussain Karishma Verma

Assistant Professor (Law) B.A.LLB.(Hons.)
Dr. RMLNLU, III Semester
Lucknow Roll Number - 67

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Contents
INTRODUCTION .......................................................................................................................... 3

PRENUPTIAL AGREEMENTS: WHY WOMEN NEED THEM ................................................ 4

WHY YOU NEED A PRENUPTIAL AGREEMENT ............................................................... 4

WITHOUT A PRENUP, MOST OF YOUR ASSETS WILL BE JOINTLY OWNED............. 5

A PRENUP ALLOWS YOU TO DESIGNATE JOINT ASSETS AS SEPARATE ASSETS .. 5

THINGS YOU WANT TO PROTECT ...................................................................................... 5

MAKING SURE YOUR PRENUP WILL BE ENFORCED ..................................................... 7

WAIVER OF FULL AND FAIR DISCLOSURE ...................................................................... 8

SPECIFICITY OF FULL AND FAIR DISCLOSURE .............................................................. 8

STIPULATION IN MARRIAGE CONTRACT ............................................................................ 9

WHAT CAN NOT BE INCLUDED IN PRENUPTIAL AGREEMENTS .................................. 10

PRENUPS : PROS AND CONS .................................................................................................. 11

WOMEN'S RIGHTS IN THE ISLAMIC PRENUPTIAL AGREEMENT .................................. 13

ARE PRENUPTIAL AGREEMENTS VALID AND ENFORCEABLE IN INDIA? ................. 18

RELATED CASES ....................................................................................................................... 19

CONCLUSION ............................................................................................................................. 22

BIBLIOGRAPHY ......................................................................................................................... 23

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INTRODUCTION

A prenuptial agreement, antenuptial agreement, or premarital agreement, commonly

abbreviated to prenup or prenupt, is a contract entered into prior to marriage, civil union or any
other agreement prior to the main agreement by the people intending to marry or contract with
each other. The content of a prenuptial agreement can vary widely, but commonly includes
provisions for division of property and spousal support in the event of divorce or breakup of
marriage. They may also include terms for the forfeiture of assets as a result of divorce on the
grounds of adultery; further conditions of guardianship may be included as well. It should not be
confused with the historic marriage settlement which was concerned not primarily with the
effects of divorce but with the establishment and maintaining of dynastic families.

This agreement can set forth what will happen to your and your spouse's assets and income in the
unfortunate event of divorce, separation or death. Most importantly, a prenuptial agreement can
preserve the nature of property in the event the marriage ends. In other words, separate property
can remain separate, instead of being subject to community property or equitable distribution
laws.

Prenuptial agreements are gaining in popularity for a variety of reasons. One reason is that
people today are focusing on their careers and delaying marriage. By the time they do marry,
both partners have property and financial worth to protect. Prenuptial agreements make this easy
to do. Prenuptial agreements are also common when one partner has children from a former
marriage. Such an agreement makes sure a spouse's separate property goes to their own children.

The greatest problem in most divorces is deciding how to divide property and money. Many
prenuptial agreements are entered into simply because couples do not want the courts to decide
on asset distribution should the marriage end. A few minutes of upfront planning have the
potential to save headaches and tremendous financial hardships in the long run1.

1
https://www.legalzoom.com/knowledge/prenuptial-agreement/topic/prenuptial-definition

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In some countries, including Belgium, Pennsylvania and the Netherlands, the prenuptial
agreement not only provides for the event of a divorce, but also to protect some property during
the marriage, for instance in case of a bankruptcy.

Many countries, including Canada, France, Italy, and Germany, have matrimonial regimes, in
addition to, or some cases, in lieu of prenuptial agreements.

Postnuptial agreements are similar to prenuptial agreements, except that they are entered into
after a couple is married

This agreement must be in writing, signed by both parties, and in some states of the United
States, signed before witnesses and entered into the court records. But prenuptial agreements
don't just have to cover issues pertaining to wealth and property. They can also be used to
safeguard your Islamic rights within a marriage and, if necessary, in the case of divorce.

PRENUPTIAL AGREEMENTS: WHY WOMEN NEED THEM

When most of us hear the word “prenup,” we envision a well-to-do man presenting his less
wealthy and far younger fiancé with a document that states she will receive little or nothing in
the event the couple divorces. This may have been the norm sometime in the past, but it is not
the norm today.

More and more women are marrying later in life, or marrying a second time. And an increasing
number of women, after an unhappy marriage or difficult divorce, are deciding to cohabitate in
their next relationship and not marry at all. Many women earn a substantial income and have
amassed assets of considerable value. For these women, entering marriage with a properly
planned and executed premarital agreement is not only a smart business decision, but a smart
relationship decision, as well.

Why You Need a Prenuptial Agreement

If you are a woman contemplating a second marriage, you may have a career or own a business.
You may have a pension plan, investments, and bank accounts, as well as children from a

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previous marriage. You may be earning, or anticipate earning, a lot of money and want to retain
the right to do what you want with that income after you marry.

Without A Prenup, Most of Your Assets Will be Jointly Owned

In Pennsylvania, when you marry without a prenup, the assets you acquire and the income you
earn during your marriage are considered the property of both you and your spouse (known as
“marital property”). The only assets that remain your separate property are those you acquired
before marriage and any gifts or inheritances you receive during marriage (known as “non-
marital property”). Marital property also includes any income that is earned during the marriage
on non-marital property, such as interest on an investment made before the marriage.
When a couple owns assets jointly (as they do any “marital property”), either spouse has the
right to dispose of or use those assets in any way he or she wishes. For example, your spouse
may execute a will that leaves all your marital assets to someone else. If he predeceases you, you
may lose everything but the forced one-third share allowed to a spouse who has been
disinherited.2 Likewise, if you divorce, your marital assets will be divided between you in an
equitable distribution and you may receive only half or less than half of everything you have
worked for.

A Prenup Allows You to Designate Joint Assets as Separate Assets

A prenup can prevent these unwelcome (and often, unanticipated) developments. You and your
spouse can agree to designate what would otherwise be considered marital property (and thus,
owned by both of you) as non-marital property (and thus, owned separately). In fact, you and
your spouse can agree to just about anything you wish in a prenup, as long as you fully and fairly
disclose your assets to each other (to be discussed below). You may agree, among other things,
to what will be included in your wills, who will own and receive what upon death or divorce,
from which assets certain debts will be paid, and how expenses will be shared between you.

Things You Want to Protect

The following are among the issues women marrying a second time may wish to address in a
prenuptial agreement:

2
Unless you and your spouse agree to the contrary in a prenuptial or other agreement, your spouse is entitled under
Pennsylvania law to one-third of your estate, even if you leave him nothing in your will. This so-called “forced
share” is designed to protect spouses from being disinherited unless the disinherited spouse knowingly agreed in
writing to the disinheritance.

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  Assets for Children from a Previous Marriage

If you have children from a previous marriage, you may feel that certain assets you acquired
during that first marriage should eventually go to your children, rather than to your second
husband. Generally, these assets will be considered non-marital assets and, thus, your individual
property, but the income on those assets that is earned during marriage will belong to both of
you. You can agree in your prenup that the income as well as the assets will go to you if you
divorce.

You can also agree that you will leave these assets and the income thereon to your children in
your will, and that your spouse will not contest this disposition of your assets. In other words,
you and your spouse can agree to the terms of each other’s wills and can also agree that you will
not later contest these wills or force a share, as would otherwise be allowed under the law.
In addition, you may anticipate acquiring assets during your marriage that would ordinarily be
considered marital assets, but that you would also like to eventually pass to your children. You
can agree in your prenup to preserve these assets for your children, as well.

 Payment of Spousal and Child Support from a Previous Marriage

Your fiancé may have spousal and/or child support obligations from a previous marriage. You
can agree in your prenup that these obligations will be satisfied exclusively with your fiancé’s
individually-owned assets.

 Asset Distribution upon Divorce

As stated above, you can agree in your prenup to which assets will go to you upon divorce. You
can also agree that whichever spouse might be entitled to alimony in the event of divorce will
accept a distribution of assets in lieu of such alimony. This will prevent you from being required
to pay alimony to your husband if your income is higher than his at the time you divorce.

This may also be a wise decision, even if your husband is expected to have the higher income at
the time you divorce. Women marrying a second time are generally older than those marrying for
the first time, and may be in their fifties or beyond when they divorce. At that time of life, an

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asset distribution can be a more workable and safer solution than alimony, as your aging spouse
may die or become unemployable before his entire alimony debt to you has been paid.

 Separate Businesses

You and your fiancé may own and run separate businesses before you marry or may start
separate businesses after you marry. You can agree in your prenup that these businesses and any
income earned thereon will remain your separate property after marriage. They will pass to you
alone in the event you divorce and can be willed by you to someone other than your spouse.

 Separate Debts

Your fiancé may come to your marriage with business or other debts. You may also anticipate
that he will incur a certain amount of debt after you marry, and that you will not wish to be
saddled with any portion of this debt.

You can agree in your prenup that certain of your fiancé’s debts will be satisfied from his
business assets or his separate personal assets and not from yours.

Making Sure Your Prenup Will Be Enforced

In Pennsylvania, a prenup will generally be enforced as long as it was entered into voluntarily
and each party provided the other with a full and fair disclosure of his or her assets and
liabilities. If both these requirements are met, your prenup will be enforceable even if it is one-
sided and strikes an “unfair bargain” for one of the parties.
The only difference between the law’s treatment of prenups and other contracts is in the
requirement of full and fair disclosure. Because the parties to this particular sort of contract are
in a relationship of trust beyond that existing between parties to a purely business-like contract,
the law requires the parties to give each other a complete and honest appraisal of their financial
situations before the prenup is executed.

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Waiver of Full and Fair Disclosure
Yet, even the requirement of full and fair disclosure can be waived. In the recent 2013
Pennsylvania Superior Court decision, Lugg v. Lugg3, one party waived full and fair disclosure
and then later argued that it could not be waived. The court disagreed. It found that although full
and fair disclosure is required for a prenuptial (or postnuptial)4 agreement to be enforceable,
when a party voluntarily waives this requirement in writing, the requirement will be seen to have
been satisfied. This decision, thus, moves the treatment of prenups by Pennsylvania courts even
closer to that of other contracts.

Specificity of Full and Fair Disclosure

Pennsylvania courts have also made it clear that the specifics of the financial disclosure need not
be included in the prenup. If the prenup contains a statement that full and fair disclosure has been
made by each party, it will be presumed that the disclosure was indeed made.

In the 2003 Pennsylvania Superior Court decision, Sabad v. Fessenden5, the wife sought to
enforce a prenuptial agreement during the couple’s divorce. The agreement stated, in part, that
“each of the parties owns individually real estate and personal property, the nature and extent of
the holdings of each party having been disclosed to the other .”
The husband argued that the full and fair disclosure requirement had not been met because the
prenup did not contain the financial disclosures of the parties and because the disclosures made
were not detailed enough. The court found that the statement in the prenup that disclosure was
made was adequate to create the presumption that such disclosure actually was made, and that
the presumption could be rebutted (or proved to be false) only upon a showing of fraud or
misrepresentation. The court also found that the specifics of the financial disclosure need not be
exact and that they need not be included in a prenup or otherwise reduced to writing in order to
satisfy the disclosure requirement.

3
Allan W. LUGG Jr., Appellee v. Sarah A. LUGG, Appellant.No. 883 MDA 2012, Superior Court of Pennsylvania,
2013
4
Although Lugg v. Lugg dealt with a postnuptial agreement (one made after marriage rather than before), the law
relating to prenuptial and postnuptial agreements is the same, so that the analysis of Lugg will be applicable to both.
5
Sabad v. Fessenden, 825 A.2d 682 (Pa. Super. Ct. 2003)

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STIPULATION IN MARRIAGE CONTRACT
Certain ante or post-nupatial conditions may be appended to a marriage contract. These
conditions must be legal, reasonable and not opposed to the spirit of Islamic law. The parties
could modify or rescind these conditions at any time they like; it is because marriage is mainly a
civil contract. In cases where illegal and unreasonable condition is attached with a marriage
contract, the condition alone and not the marriage itself will be treated as invalid.

The following are the typical valid conditions attached with a marriage contract:

 The condition agreed upon by the guardians of minors whose marriage has been so
contracted, that the wife could divorce the husband in case he takes a second wife without
her consent.6
 “I (the husband) accordingly agree that I forsake the Malak-o-Badar community or am
expelled from it by the spiritual head, my wife may get a divorce from me pronounced by
a person appointed by her on my behalf which divorce I will accept as valid.”
It was held that the condition is valid, and is not opposed to Muslim law.7
 It will be a valid condition if it says that the wife would be entitled to separate
maintenance if her relationship with husband becomes strained. Such a condition is not
against the public policy.8
 It can be validly be agreed upon that the wife shall live in her parent’s house and shall not
be removed elsewhere , and in the case of dissension with the husband , he would pay a
monthly allowance to her as maintenance and will allow her to remain in her parent’s
house.9
 The wife may validly stipulate to be allowed to leave her husband’s house in case of his
misbehavior or cruelty.10

6
Marfatalli v. Zahedunnisa, AIR 1941 Cal 657
7
Fida Ali v. Sanai Badar, AIR 1923 Nag 262
8
Muinuddin v. Jamal Fatima, AIR 1921 All 152
9
Sakina v. Shamshad Khan, AIR 1936 Pesh 195
10
Banney Sahib v. Abida Begum, AIR 1922 Oudh 221

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WHAT CAN NOT BE INCLUDED IN PRENUPTIAL
AGREEMENTS
State laws restrict what can and cannot be included in prenuptial agreements. Below is a list of
things most states will not allow in prenuptial agreements11:

Provisions detailing anything illegal

Every state prohibits you from including anything illegal in your prenuptial agreement. In fact,
doing so can put the whole prenuptial document or parts of it at risk of being set aside.

Decisions regarding child support or child custody

A prenup cannot include child support or child custody issues. The court has the final say in
calculating child support. The court determines child support based on a "best interest of the
child" standard, with several factors at play. A court would never uphold a provision of a
prenuptial agreement that dealt with child support, child custody, or visitation, because these are
issues of public policy. The court retains the power to decide what is in the child's best interest
and will not deny a child the right to financial support or the opportunity to have a relationship
with a fit parent.

Waive your right to alimony

This is the most commonly struck down provision by courts. A few states strictly prohibit this.
Other states look down on it and limit your ability to give up your alimony rights. Some states do
allow alimony waivers. Be sure to check with your own state's laws.

Encourage divorce

Judges scrutinize prenuptial agreements in detail to look for anything that tends to offer a
financial incentive for divorce. If a provision can be read to encourage divorce, the court will set
it aside. Courts used to view any provision detailing how property would be divided as
encouraging divorce, because society has an interest against divorce. This is why judges pay
such close attention.

11
http://family.findlaw.com/marriage/what-can-and-cannot-be-included-in-prenuptial-agreements.html

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Make rules about personal, rather than financial matters

A prenup cannot include personal preferences, such as who has what chores, where to spend the
holidays, whose name to use, details about child rearing, or what relationship to have with
certain relatives. Prenuptial agreements are designed to address financially based issues. Any
prevision discussing non-financial issues will not be upheld. Judges grow uncomfortable when
they see private domestic matters included in a contract, and will often view the document as
frivolous, striking it down. If you and your spouse do want to have an agreement about such
things, do it in a separate document, with which the court will not have the power to intervene.

PRENUPS : PROS AND CONS

The truth is, marriage is not only a romantic relationship, but also a sort of business relationship.
This dual nature and purpose of marriage has led to the increased acknowledgment that
a prenuptial agreement can be useful to protect each spouse's financial interests. Let's take a look
at the pros and cons of entering into a valid prenuptial agreement.

Pros

 A premarital agreement can protect the inheritance rights of children and grandchildren
from a previous marriage.
 If you have your own business or professional practice, a premarital agreement can
protect that interest so that the business or practice is not divided and subject to the
control or involvement of your former spouse upon divorce.
 If one spouse has significantly more debt than the other, a premarital agreement can
protect the debt-free spouse from having to assume the obligations of the other.
 If you plan to give up a lucrative career after the marriage, a premarital agreement can
ensure that you will be compensated for that sacrifice if the marriage does not last.
 A premarital agreement can address more than the financial aspects of marriage, and can
cover any of the details of decision-making and responsibility sharing to which the
parties agree in advance.

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  A premarital agreement can limit the amount of spousal support that one spouse will have
to pay the other upon divorce.
 A premarital agreement can protect the financial interests of older persons, persons who
are entering into second or subsequent marriages, and persons with substantial wealth.

Cons

 The agreement may require you to give up your right to inherit from your spouse's estate
when he or she dies. Under the law, you are entitled to a portion of the estate even if your
spouse does not include such a provision in his or her will.
 If you contribute to the continuing success and growth of your spouse's business or
professional practice by entertaining clients or taking care of the home, you may not be
entitled to claim a share of the increase in value if you agree otherwise in a premarital
agreement. Under the laws of many states, this increase in value would be considered
divisible marital property.
 Starting a relationship with a contract that sets forth the particulars of what will happen
upon death or divorce can engender a sense of lack of trust.
 It can be difficult to project into the future about how potential issues should be handled,
and what may seem like an inconsequential compromise in the romantic premarital
period may seem more monumental and burdensome later on.
 A low- or non-wage-earning spouse may not be able to sustain the lifestyle to which he or
she has become accustomed during the marriage if the agreement substantially limits the
amount of spousal support to which that spouse is entitled.
 In the "honeymoon" stage of a relationship, one spouse may agree to terms that are not in
his or her best interests because he or she is "too in love" to be concerned about the
financial aspects and can't imagine the union coming to an untimely end.

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WOMEN'S RIGHTS IN THE ISLAMIC PRENUPTIAL
AGREEMENT
A great deal of heartache can be avoided by a woman in her marriage if she, as the bride-to-be,
agrees to and signs a carefully considered Prenuptial Agreement (also known as a Marriage
Contract or Domestic Contract) that guards her rights before entering into wedlock. This is the
crucial first step which will guarantee her rights throughout her marriage, because if problems
should arise later on in the marriage, ignorance of the law will not be allowed as an excuse for
the woman's failure to secure her rights. The Prenuptial Agreement can also guarantee a woman
many of her Islamic rights, which can be enforceable by law even if she lives in a western
country. Arguably women's Islamic rights are more fair and equitable than the secular woman's
rights in the west, so it makes sense to know just what her Islamic rights are and how they can be
relinquished should she neglect to claim them before marriage. A great deal of misinformation
abounds concerning the Prenuptial Agreement and women's Islamic rights. InshaAllah, this
article will set the record straight, as much as possible, about what her Islamic rights are, and
how to protect them with a carefully considered Prenuptial Agreement.

For the most part, we will address the western Muslim woman who is not only required to obey
the Sharia but who must also comply with the secular laws of her own country. However, we
will touch briefly upon a few major issues which affect women living in Eastern countries where
polygyny and other such Muslim laws are extant. Because of the diversity of laws from country
to country, we can only discuss the Muslim woman's rights in a general as opposed to specific
fashion.

To be enforceable by law, a Prenuptial Agreement must also comply with the laws of the country
(as distinct from the Islamic Law of the Shar'ia in which it is drawn up and signed. This will
guarantee that the agreement will be legally binding on both the husband and the wife, and
should problems should later arise, the spouse will have protection under the law of his or her
own country. It is therefore advisable for the couple to have at least a rudimentary understanding
of the laws of their own respective countries in which they live.
Ideally it would be more advantageous for the couple to consult both a legal specialist in their
own particular country and also a specialist in Islamic Law to help draw up their contract. We

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would suggest that the Prenuptial Agreement or Marriage Contract be drawn up by a religious
leader in your community (i.e. the Imam of your local mosque might be able to help) and then
checked over by each of the bride and groom's respective lawyers. Muslim lawyers -- if available
- would be preferable.

The Prenuptial Agreement - points to consider in your marriage contract

It is impossible in an article of this nature to cover all of the possible inclusions which could
conceivably go into the Prenuptial Agreement, so we will focus mainly on those points which
have a bearing on protecting a Muslim woman's Islamic rights.

(a) Polygyny
If a woman does not feel that she could allow her husband to marry more than one woman at the
same time, then Islam allows her the right to refuse him permission to do this at the outset of
their marriage, however, she must indicate this preference in the Prenuptial Agreement or she
will forfeit this right under the Islamic Law. If she is uncertain as to whether or not she will be
opposed to her husband marrying a second wife later on, then she could include that in the
agreement and thus make it binding upon her husband that he must consult her at that time and
that he must then abide by her wishes. To say nothing, however, could possibly invite more pain
than gain as far as her desires are concerned.
In the West, polygamy is illegal. Even so, the woman may still request that her husband not
marry a second wife, and put this in the contract. This sort of request would be considered
spurious in the Prenuptial Contract because men in the west are already forbidden polygyny.
Nonetheless it might still prove to be a useful addition to the contract at this time because later
on the couple might possibly move to a country where polygyny is legal.
Although polygyny is illegal in Canada, if a person marries more than one wife anyway, then the
second wife is cut off from access to her legal rights as a wife completely (i.e. inheritance, mahr,
alimony, child custody, recognition as being a wife, etc.) because the second marriage is not
legally recognized whatsoever by Canadian law authorities. Therefore she will not be treated
equally under Canadian law to the first wife, who could easily go to a recognized legal authority
to enforce her marital rights. The second wife will have no legal recourse whatsoever from
Canadian law. So this is a strong argument against Muslims marrying a second wife in a country

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like Canada which will neither recognize nor enforce her Islamic legal rights when it comes to
polygyny. Interestingly enough, it appears that the Canadian government is not entirely opposed
to polygyny when it comes to immigrants. If the husband and his wives have already been
married off of Canadian soil and should they immigrate to Canada, then the extra wives will be
accorded equal protection under Canadian law as the first wife.
In any case, it would be a good idea to include a clause agreeing that the marriage will not be
polygynous, if this is BOTH their preferences, for clarification between the two spouses and the
Muslim community. It has already been mentioned that there is always the possibility that the
couple could someday live in some other country that does recognize polygyny. So the couple
may want to be clear on this point.

(b) Mahr
This is the dower, or gift from the groom to the bride, of either a fixed financial amount or even a
property amount and it is usually given immediately at the time of the marriage. However, either
some of it or all of it may be deferred until a later time where it would become payable to the
wife either upon the death or divorce of her husband. This is her Islamic right. Therefore the
details of its payment should be set out very clearly in the Prenuptial Agreement for this right to
be accorded to the western Muslim woman. (i.e. that a certain portion of the dower will be paid
at once or within a stated period, and the remainder upon the dissolution of the contract by either
death or divorce.) For example, the bride could settle an appropriate amount of dower to cover
the demands of life after either a divorce or the husband's death, or she could arrange for an
annuity, or a fixed monthly amount payable to her upon the occurrence of either of those two
events, so long as the Canadian rule against perpetuities is not contravened. There doesn't appear
to be anything in Islamic law that prohibits a wife from looking after her own interests in this
way in Canada.
In the U.S.A., however, Prenuptial agreements which "facilitate divorce or separation by
providing for a settlement only in the event of such an occurrence are void as against public
policy." This appears to mean that according U.S. law, a woman cannot claim her dower in the
event of divorce, even though she had agreed to this in her Prenuptial Agreement. So ladies, be
forewarned about this issue if you happen to live in the U.S.A.

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(c) Divorce
In Islam, divorce is permitted when serious differences arise which cannot be resolved through
reconciliation. However, it has to be the last resort, for the Prophet p.b.u.h. has described divorce
as the most detestable of all lawful things in the sight of God. Now divorce is probably the last
thing in the world that a couple would want to consider when negotiating their Prenuptial
Agreement, but since Islamic divorce law is far more reasonable and equitable than Western
divorce law, it would be wise to commit to the Shar'iah in your Prenuptial Agreement and in the
early stages of marriage. Furthermore, this is the time when a woman may claim many of her
Islamic rights.
There is a misguided notion both among western nations and even among Muslims themselves
that under Muslim law a woman will get nothing from her husband towards her maintenance and
living expenses beyond her probationary period of Iddat. This is a very simplistic notion and is
clearly misleading.
In Islam the husband may unilaterally divorce his wife at any time, without specifying any
reason, and a woman may do the same as long as she acquires this right when contracting her
marriage. She can do this by negotiating and demanding that the prospective husband delegate to
herself (or her nominated agent) the right to divorce herself at any time without assigning any
reason. It should be borne in mind that the procedure relating to the pronouncement of divorce
can vary depending upon which school of law is followed by the husband and wife. The
prospective wife can also have the husband's right to divorce her curtailed in many other ways -
all by demanding and having the required legal conditions included in the marriage contract -
and these conditions would be just as enforceable in a court of law as any conditions of a civil
contract.
In fact, the modus operandi, even in a so-called bilateral marital breakdown situation (i.e., where
both the husband and the wife mutually agree to divorce) is always for one of the two spouses to
take the initiative to call the marriage off. So, in reality, marriage breakdown situations almost
always entail unilateral decisions and motivations. Therefore, given that there is often an
unavoidable, unilateral dimension in initiating divorce proceedings, one could argue that to let
either of the two spouses have the unilateral right to divorce the other will save both of them
from endless argumentation and bickering that could ultimately lead them to very expensive and
emotionally charged court litigation.

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Currently, if you live in Canada, the couple must first legally separate for a period of one year
before divorce will be granted. It is a very complicated process and each spouse is advised to
retain his or her own lawyer. At the moment, a Canadian Muslim couple cannot obtain a divorce
in Canada according to Muslim Law. However, there are things which can be done to minimize
the trauma and legal expense as long as BOTH the husband and wife are willing to compromise.
Moreover, it would be very useful if they both had agreed to and signed a Prenuptial Agreement
which had set out various prearranged issues such as child custody, maintenance, etc. and so if
both the husband and the wife were willing to abide by this agreement, then the divorce could
actually proceed quite smoothly.

(d) Financial Independence

According to Muslim Family Law, the responsibility for the wife's maintenance (nafqa) always
remains with the husband. The wife has no corresponding obligation to support her husband. The
Muslim law principle which has been jealously guarded and enforced by Muslim law courts is
that a woman's property is hers alone. Period. Consequently, any property which a Muslim
wife contributes towards the 'family's assets' (i.e. all the property accumulated during the
marriage) remains hers alone and is not subject to division or sharing by the husband in the event
of a marriage breakdown (unless otherwise agreed upon between the husband and wife). In other
words, under the Muslim Law, her 'Net Family Property,' remains hers alone and with no
corresponding obligation to share with her husband (unless both husband and wife have agreed
to share). This is not the case in Ontario law. So to ensure that a woman's Islamic rights are
protected in Canada, particularly with respect to the matrimonial home provision of the Ontario
Law, it is suggested that both the husband and wife consult a specialist (i.e. lawyer who
specializes in Ontario Family Law if they happen to live in Ontario) so as to explore with this
lawyer the legal possibilities of accommodating the couple's wishes, as much as possible, by
finding ways and means to legally circumvent the (Ontario) law with regards to the obligatory
special equal sharing of the matrimonial home provision.
It appears that in the U.S.A., the Prenuptial Agreement can successfully redefine each spouse's
property as either separate property or community property, so the wife can specify her financial
independence and ownership of property at this time.

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(e) Education and Employment
Muslim women may restate their God-given Islamic rights to education and independence to
work (employment, business, professions, etc.) in the Prenuptial agreement at this time which
could be used beneficially both in Muslim as well as non-Muslim countries. Women in the west
have already been accorded these rights by law, although in practise the husband may or may not
approve of a wife either working or getting a higher education. So it would be prudent for both
the husband and the wife, either in the West or the East, to be clear on this issue so as to prevent
discord and unhappiness in the marriage.
The Prenuptial Agreement may also provide for religious education and upbringing of the
children in accordance with Islamic Law and traditions.

Are prenuptial agreements valid and enforceable in India?

Prenuptial agreements are considered as valid legal documents in several countries. However, it
is not recognised in India, as marriage in India is not considered to be a contract. Marriage is
instead considered to be a sanctimonious and religious bond between husband and wife.

Women and Child Development Minister, Maneka Gandhi has wanted to legalise prenups since a
long time. In fact, it has been in the agenda ever since Marriage Law (Amendment) Bill, was
introduced in 201312.

For a prenup to be successful, both parties should agree to participate and be completely
honest about their individual assets and liabilities. As long as the two stick to the terms,
prenup agreement can be used as the basis on which the judge gives his decision. However, if
one party decides to fight it out, then the agreement holds no good.

Legal Status of Prenuptial Agreement:

Prenuptial agreement is neither valid nor legal under the Indian Contract Act. This is
because marriage is not considered to be a contract in India, and any agreement against public
policy shall be void under Section 23 of Indian Contract Act. However, since judges can

12
http://timesofindia.indiatimes.com/india/Give-prenups-legal-validity-Maneka-Gandhi-tells-law-
minister/articleshow/49809202.cms

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interpret an agreement in different ways, prenup can be presented in the court as long as it is
made in a legally prescribed format, duly signed by both parties voluntarily, notarized along with
having two witnesses.

In fact, V.P.Sarthi, a divorce lawyer at VPS lawfirm, Coimbatore says that ‘even though prenups
are not legal, it depends on the creativity of a lawyer to make a case out of it.’He says, for
instance, ‘if a party breaks a prenuptial agreement made on stamped and notarized paper, it
becomes fraud, which is a ground for divorce.’ Besides, majority of the couples these days elect
prenups knowing it has no legal backing in order to make their spouse feel morally obligated and
in order to get clarity on various aspects13.

In a country like India, where practice of dowry is still pervasive, prenuptial agreement has a
long way to go before it is legalised. Recently, the Union Ministry for Women and Child
Development called for a discussion with legal experts and other stakeholders on the possibility
of bringing a law that legitimises pacts between spouses. However, discussions need to be held
in order to come to a resolution on the link between religion and marriage before an agreement
of this sort is given legal sanctity.

RELATED CASES
1. Imam Ali Patwari v. Arfatunnessa14
Case referred:
Abdul Piroj Khan Nabab v. Hussenbi, (1904) 6 Bom LR 728.
A condition in a “Kabinnamah” that the husband is to live in her father’s house, with thw
wife, and if he breaks that condition she is to have a right to divorce him, is illegal , as it
implies that the wife will continue to live in her father’s house . the wife is not , therefore,
entitled to use it for supporting her claim to divorce and consequently to the deferred
dower.

2. Khatun Bibi v. Rajjab15

13
https://www.quora.com/Are-prenuptial-agreements-valid-and-enforceable-in-India
14
AIR 1914 Cal 369: 18 Cal WN 693
15
AIR 1926 All 615: 94 Ind Cas 224

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 Any agreement which binds the husband to live with his wife at her father’s house is
invalid and cannot constitute a defense to a suit for restitution of conjugal rights.

3. Mst. Hamidan v. Muhammad Umar16

In Mohammedan Law, marriage is a mere civil contract and any prenuptial agreement
between the wife and her husband , that the husband would be liable to pay for her
maintenance by a specified monthly allowance if the relations between them become bad,
is valid. All that the wife has to make out in such case is that the relationship between her
and her husband became bad and that there was dissension between them and she need
not prove that there was great trouble between the parties17.

4. Hamidoolla v. Faizunnissa18
The wife had consented to marry on the condtion that under certain specified
contingencies her future husband should permit her to divorce herself . the court held that
such a contract restraining the husband from entering into a seconf marriage during the
lifetime of the first is not void either in Shari’ah Law or under section 23 of the conract
act,1872, which bans agreements in restraint of marriage.
5. Ayatunnessa Bibi v. Karam Ali19
The first wife left her husband a year after his second marriage. In a suit by the husband
for the recovery of the wife, her defense was that it was stipulated in the marriage
contract that in the event of the husband taking another wife , she would have the power
of to divorce herself and in exercise of that power she had divorced herself. The court
held that when a power is given to a wife by the marriage contact to divorce herself in the
event of the husband taking a second wife, she is not bound to exercise her option the
very moment she hears the news that he has done so. The injury done to her is a
continuing one and it is reasonable that she should have a continuing right to exercise the
power.

16
AIR 1932 Lah 65
17
AIR 1921 All 152 Foll
18
ILR (1882) 8 Cal 327
19
ILR (1909) 36Cal 23

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 6. Saifuddin sekh v. Mst. Soneka Bibi20
An prenuptial agreement between the husband and the third wife provided that if the
husband would bring either of his two previous wives who were not living with him at
the time, to stay with him without her consent , she would be entitled to exercise the
delegated power of divorce. The court held that a contract , which served to ensure peace
and domestic happiness, should not be treated as invalid and opposed to public policy ,
the condition was quite in accord with reason and public policy and should be enforced.

20
AIR 1955 Ass 153

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CONCLUSION

The Prenuptial Agreement can be likened to an 'insurance policy' for both Western and Eastern
Muslim couples; and for the Muslim woman who wishes to adhere to the principles of Islam, she
would be well advised to carefully consider her options. The couple may not necessarily consider
themselves to be very religious in practice at the present time, but this could change many years
down the road because one simply cannot know one's future. So it would be a good idea to cover
all your bases as it were when considering your Prenuptial Agreement.
Whether you are a woman living in an Eastern Muslim country, or a woman living in a Western
secular country, a carefully considered Prenuptial Agreement will prove to be an important asset
to your marriage because (and most couples don't know this) the standard Marital Contracts that
Mosques use, often do not claim those rights for women that are hers and these could be lost if
not agreed upon in her Prenuptial Agreement. Particularly for women who live in Eastern
Muslim countries, you cannot assume that because your country is governed for the most part by
Muslim Law that your Islamic rights will be specified in this standard contract or that your rights
will be protected if need be by your country's law. This may not be the case.
The reason why the importance and the practical need for a Prenuptial Contract seems to be
ignored by such a large segment of the Muslim population is simply beyond comprehension.
This lack of appreciation for the need for a Prenuptial Agreement seems to become even more
appalling if one, as a Muslim, would recognize the fact that the Muslim marriage (Nikah/aqd) is
itself a civil contract. It contains the basic ingredients of a regular everyday civil contract! The
whole matrimonial relationship is based upon mutual agreement and consent of both the husband
and the wife. From this point of view then, whoever said "a marriage contract is like is like a
blank cheque on a joint account containing almost unlimited funds" really knew what he was
talking about. Just as either the husband or the wife may decide to increase or decrease the funds
held in their joint account, so too can they add any number of mutual rights and obligations into
their Marriage/Prenuptial Contract. Nothing is carved in stone - everything can be changed,
altered and amended. All that is required is a certain amount of good will and a sincere desire
to live happily ever after.

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BIBLIOGRAPHY

Books:

 Syed Khalid Rashid’s Muslim Law, V. P. Bhartiya

 Muslim law of marriage, dower, divorce and maintenance by Dr. kahkashan Y. Danyal
 Muslim Law Cases & Material by Dr. H. D. Kohli

Web Resources:

 https://www.quora.com/Are-prenuptial-agreements-valid-and-enforceable-in-India
 https://www.legalzoom.com/knowledge/prenuptial-agreement/topic/prenuptial-definition
 http://family.findlaw.com/marriage/pros-and-cons-premarital-agreements-
prenuptials.html
 http://timesofindia.indiatimes.com/india/Give-prenups-legal-validity-Maneka-Gandhi-
tells-law-minister/articleshow/49809202.cms
 http://www.fellheimerfamilylaw.com/prenuptial-agreements-why-women-need-them/
 https://islaminaction.wordpress.com/2009/07/22/prenuptial-agreement/
 http://www.nolo.com/legal-encyclopedia/prenuptial-agreements-overview-29569.html
 http://family.findlaw.com/marriage/prenuptial-agreements.html
 http://family.findlaw.com/marriage/what-can-and-cannot-be-included-in-prenuptial-
agreements.html

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