Delhi court urges to ‘make prenuptial agreement compulsory’ as it grants divorce

New Delhi: During a recent divorce trial in Delhi, a family court noted that prenuptial agreements need to be required before marriage in order to educate prospective spouses about the risks of matrimony and prevent mental cruelty.

Judge Harish Kumar's court was considering the case of a married couple from Uttar Pradesh who refused to get a divorce by mutual consent and accused one another of committing cruelty, New Indian Express reported.

“Time has come to make a compulsory prenuptial agreement to be executed before appointed authority after counselling of the parties about the possible risk of marriage going haywire for a variety of reasons and making it mandatory to report breach every time a breach occurs under…. making it further clear that if the breach is not reported he/she would not be heard later on,” said Judge Kumar while dissolving the marriage of the couple.

The couple's disagreements "beyond their respective tolerance" had begun to emerge even before they had a child in 2014, the court noted, and as a result, they had asked various authorities to have their grievances redressed.

The man had petitioned a Mumbai family court for divorce in 2016, citing cruelty. After that, the wife filed for divorce, alleging provisions of the 2005 Protection of Women from Domestic Violence Act, along with further allegations of cruelty.

In February 2023, the case was moved to the Delhi court.

Although both parties were prepared to end their marriage, the court noted that they were unable to come to an agreement on a divorce by consent. The legislation stipulates that the parties must jointly file a single divorce petition.

The parties must remain together for a period of six to eighteen months following the filing of the divorce petition in order to reevaluate their decision to end the marriage, according to another legal requirement.

“In the present case, their respective decisive willingness to dissolve their marriage is continuously present for the last seven years but simply because willingness/consent were not in the particular form required under Section 13B of the HMA both have been suffering because of each other’s respective pleaded case/stand,” observed Judge Kumar noting that except for the petition of mutual consent, all other ingredients were present.

The court observed the increase in these cases in India and noted that while most of them do not involve "real cruelty," the laws are written in a way that forces the spouse to come before the court with accusations made against one another.

Recent data from the National Crime Records Bureau (NCRB) shows that "cruelty by husband or relatives" was a reason for about one-third of crimes against women. But there was a dismal conviction rate in these.

The court further observed that refusing to grant the couple divorce would cause “law-induced mental cruelty” and that dissolving their marriage was the only way to “provide quietus to their unending matrimonial acrimony”.