WCD propose Marriage Contract Law like Prenuptial ?

When I came to know from various news that present WCD minister working with a module in the name of marriage contract or popularly known in rest of the world as Prenuptial agreement, remind me in 2007 itself I send a mail about that to them, which was put in dustbin.

As marital bliss eludes couples, pre-nuptial agreements mark their Indian debut 

Prenuptials agreements have been finding their way into marital unions in India too, but there's a problem: Indian law does not recognise these pacts, rendering them useless. Now Maneka Gandhi's Ministry of Women and Child Development has initiated moves to change this.

It is outlining modalities for introducing prenuptial agreements into the existing legal system as an option for couples.

Now, my concern , hope this proposed law also should not be anti-men , like we witness they had done in earlier domestic violence act, work place harassment act, where the word person was replaced by women and spouse was replaced with husband. Hope this time also the same should not happen.

So, the question how it should be the proposed Marriage Contract Law of India and how it can be enforceable in India?

Prenuptial are enforceable guidelines, contrary to popular perceptions it is not only about financials but is much more.

Prenuptial agreement is more likely to stand up if it meets the following conditions:

1. The Agreement should be fair, and duly acknowledged.

2. The Agreement should have attorney certification from both parties as well.

3. The Agreement should have clause stating that if any provision of the agreement is
     invalidated, the rest of the agreement still remains in effect.

4. There should be listing attached showing each spouse's assets and liabilities.

5. The Agreement should have all the clauses of agreements arrived at between the
     prospective spouses.

6. The Agreement may also contain the necessary history of proposed alliance.

7. The Agreement should be reviewed by separate lawyers and duly certified by them.

8. The Agreement should be setting out each party's assets, debts, and property rights before the marriage, settling issues of division of property and of spousal support in the event of marriage breakdown.

That means, if the both party are genuine, transparent and do not have any pre-planned ill mind, will accept the same before marriage itself.

The Prenuptial Agreement cannot counter Section 498A IPC at all, but may reduce the damage

Caused by misuse of the law .

Some of those people, who refuse to see dangers and consequences of false 498A or Domestic Violence Act cases and brush aside the truth, thinking nothing is going to happen to them, may find this as cheap insurance policy like medical Insurance, which is not very popular in India.

It has got three Modules:   Entry Module, Operations Module, and Separation Module.

A. Entry Module:

Examples of preconditions: 

1.HIV tests
2.Horsoscopematching (Optional)
3.Proof of age
4.Passport copies, getting a passport
5.Proof of educations
6.Trial Period
7.Mode of calling of the marriage.
8. Expense sharing for preparation of marriage
9. Expense sharing or compensation in case of calling of the marriage
10.Gift register (setting limits)

B. Operations Module

1.Lifestyle
   Example: How will the various items required for running marital will be bought
          1. Car (who buys or who rents)
          2.house
          3.Furniture..etc.
      

 What percentage money will each put for common pool also called as marital pool.

How will the common pool be operated?

What happens if one person puts from their pool into marital pool is it to be treated as gift or a zero percent loan to the other spouse.

Example: if a husband becomes unemployed then the wife would put in some money is it to be treated as marital expense or loan to the marital pool) 

 Who gifts what to whom, setting the limit of yearly gift from close relative .Limits can be set on what can be maximum or minimum limits.

In case of financial despair acceptable sources to tap and the modalities.

2. Definition cruelty: You are setting certain expectations from your spouse here as all the Indian marriages act says mental cruelty depends in the conditions. This gives you a chance to clearly define these are a not acceptable and this are acceptable to some extent, also you can grade it to cruelty, violence and crime.

3. Household chores (cooking, cleaning etc)

4.Child planning (when, how many, where)

5. Define exception conditions (Example if the couple cannot conceive then adoption or surrogate or intravital ) 

6.Rules of staying away ( Transfer )

7.Rulesof abortion ( Either or both )

8. Rules of meeting parental obligations ( in-house, in complex etc )



C. Separation module

• Define the alimony ( indexed on wholesale Price index, index on income , limiting alimony based on tax limits etc ).
• Define the shared parenting responsibilities (residence, schooling, clothing, food. Mode of collection of the Childs needs).
• Define the rules for division of marital property (Operation module defines how the marital property will be accrued).
• Define residential rules for children.

 How to enforce such Marriage Contract or prenuptial agreement in India ?

Now as I had discussion to a smart retired judge (who doesn’t) want to   be known and asked him if a Prenuptial agreement was valid in the court of law .He smiled "why not "and said my opinion it could definitely be valid, if you follow certain procedures and amend the Present contract act along with a note in all Marriage related law the previous agreed Marriage contract to be considered as valid.

The way to do it is to file for declaration of marriage in the family courts under the "Special Marriage Act" along with your documents, witnesses and the deed of Prenuptial.

That would be treated as your engagement.

Take next date and solemnize in the family court in the next date.

Orders are passed and you are declared married.

With this document get the whole order registered in the Registrar office and you have married with an enforceable prenuptial in courts.

But he says such a prenuptial is very likely to be enforceable as the courts have married you by accepting the prenuptials.

A marital pool has to be defined regardless of assets.

The prenuptial agreement in India stand a very good chance of enforcement in India if the prenuptial is certified by the court easily and with open mind and this is possible in the "Special Marriage Act" where in the magistrate goes through all the documents and then declares the marriage based on those. 

Just Married !!

A magistrate can refuse the marriage in certain circumstances. eg: if one of the spouses is below the age of marriage the magistrate can dismiss your petition for declaration of marriage or if the magistrate feels the some clauses are unfair then also he can dismiss but once the magistrate has accepted the prenuptial agreement in India then for demanding money or anything beyond prenuptial agreement in India the onus is one other party to prove additional circumstances. 

Don’t think that prenuptial agreement in India are just two to three pages. Nothing can be far from the truth. A good prenuptial may go to 40 to 50 pages.

There is no grantee such contract give 100% success of your married life, but at least be honest , be transparent to your would be spouse , which you perceive to do at present verbally , it’s time to get documented.

SERIOUS OBJECTIONS TO MARRIAGE LAW (AMENDMENT) BILL 2014.

SERIOUS OBJECTIONS TO INTRODUCTION OF MARRIAGE LAW (AMENDMENT) BILL 2014.

Click Here to Know proposed 13C/D/E/F of the Bill. Main objection to Proposed “Marriage(Amended) Bill 

With this Press Release, we members of Save Family Foundation hereby want to register very serious and strong objection to the process followed for the introduction of Marriage Law (Amendment) Bill. We have learnt from the latest news reports and from our calls to the Legislative Department of Law Ministry, and by meeting the Hon’ble Law Minster Sri. D.VSadananda Gowda that the Government is about to Introduce a new Law, Marriage Law (Amendment) Bill in this Winter Session. The draft bill is to change Hindu Marriage Act, 1955 and Special Marriages Act.

Photo By Mark : Stop treat Men as Free ATM in the Name of Alimony

With this Press Release, we also wish to bring to your kind notice the CLEAR VIOLATION that Legislative Department has done while processing the new Draft. As per Pre-Legislative Consultation Policy (PLCP), decided on 10^th January 2014, it was decided, that  “The Department/Ministry concerned should publish/place in public domain the draft legislation or at least the information that may inter alia include brief justification for such legislation, essential elements of the proposed legislation, its broad financial implications, and an estimated assessment of the impact of such legislation on environment, fundamental rights, lives and livelihoods of the concerned/affected people, etc. Such details may be kept in the public domain for a minimum period of thirty days for being proactively shared with the public in such manner as may be specified by the Department/Ministry concerned.”

We bring to your attention to this Notification dated 5^th February 2014, D.O. No. 11 (35)/2013-L.I., which mandates the ministry to Publish the Draft Legislation in Public Domain for ATLEAST 30 days and in fact notify the affected people. Unfortunately, the current draft clearly violates this very important procedure laid down by the Committee of Secretaries (CoS) under the Chairmanship of Cabinet Secretary.

We also wish to submit to you that the Draft which saw widespread Public concern/panic, cannot be pushed again without having passed the Constitutional Procedures laid down in our Democracy.This is the same Draft bill which never saw the light at the end of the tunnel during previous government as BJP itself realized how disastrous this law was for Hindu Family and Hindu Men.The Bill was opposed by various segments of society and even ministries and got International-wide attention on India for proposing such a draconian law.

In spite of all the above, it is really SHOCKING and heart-breaking that the New Visionary Government, under a dynamic leadership who pledged “SABKA SAATH SABKA VIKAS” has not taken the TRANSPARENT route and is behaving same as the previous Congress led UPA Government now.

GRAVE FAR REACHING SOCIAL AND ECONOMICIMPLICATIONS OF THE PROPOSED MARRIAGE LAW AMMENDMENT BILL 2014:

1. 1. LOSS OF FAMILY VALUES AND FALL OF INSTITUTION OF MARRIAGE IN INDIA

• Marriage will lose its sanctimonious purpose and become property acquiring business. Already, there is an increasing trend towards material expectations in a marriage; the amendment will have a far reaching consequence. With divorce no more being a taboo in India, the incentive of women taking divorce would work as reverse DOWRY menace where women would marry for property and not for family or love.
• China in 2010 amended a similar property annexing law when it found that it being misused extensively by women to grab property through marriages. With misuse of gender laws in India close to an all-time high, this is not the climate to introduce another dangerously draconian legislation. [1]

1. 2. SEVERE VIOLENCE AND SOCIAL UNREST IS HIGHLY PROBABALE

• Assets/Properties are acquired after years of hard work and not because of few years of matrimonial life. Losing hard earned property in case of failed marriage will lead to increase in Husband Suicide (already it is double) and Increase in Crime Rates.
• The Battle of Mahabharata was fought for five villages. With the proposed amendments the home of every Husband’s family is going to be in trouble. This Bill if passed in its current form may result in the very person sought to be benefitted/ protected becoming a victim of violence for protecting property as there is hardly any faith in the biased legal system. Will the BJP be willing to take full responsibility for this dangerous social disruption?

1. 3. INDIAN ECONOMY WOULD BE ADVERSELY IMPACTED & INDIA WILL NOT BE perceived as safe destination for FDI

• When the society is in unrest and family values are broken, the dream of “Make in India” would go for a toss. Economies like Vietnam, Thailand, Philippines, Pakistan, Sri Lanka, Fijiwould grow and India would lose the unique opportunity it has to lure the world for “Make in India”.
• Indian men in fear of possible loss would stop buying properties and it would have adverse consequences to the nation’s economy.
• People would start accumulating wealth in alternate form like gold etc., which would result in a dull economy that believes in secure accumulation than investment for growth.
• With wealth and real estate not safe in India, Indian Men would surely think of investing in other countries the Black Money would be created and kept in secret. Today also in USA if a person shows $100K worth of investment to be made he is granted Green Card in no time. This way there is a brain drain and wealth drain as well.

1. 4. MASS CONVERSION FROM HINDU TO OTHER RELIGIONS

• Hindu men would want to convert to another religion to minimize their risks in matrimonial life. This mass conversion has its own extremely dire social complications.
• Hindu Men would stop marrying or do SAGOTRA VIVAH to keep the property in the gamily. This would itself create many honor killings and people taking law in their hands.

1. 5. INCREASE IN BACKLOG OF MATRIMONIAL CASES IN INDIAN COURTS

• It is an established trend and confirmed by Apex court that, in failed marriages women are grossly misusing IPC 498a and DV Act for extortion. This amendment will be another tool and further distress families.
• India has the youngest of the average population. There is a unique combination of youth and skills in this age group. Most of the relationship/marriage/family troubles occur in this age group. If this age group is not ina stable family and relationship state the productivity of INDIA would go down drastically when most are deeply immersed in litigation battles.

FLAWS OF THE PROPOSED MARRIAGE LAW AMMENDMENT BILL 2014:

1. The Bill, out-rightly violates the essence of Article 15 of Indian Constitutionwhichprohibits discrimination against any citizen on the grounds of religion or gender.  The Bill is also  unconstitutional as it takes away the basic rights of husbands, even to defend him or save his marriage, whereas the very same Bill gives the same rights only to the wives.
2. Internationally in similar law, property consideration in deciding permanent alimony is purely done on equitable financial contribution to property and duration of marriage and also based on conduct of both the parties. In present bill the contribution, duration, assets and ability of female spouse and liabilities and ability of the male spouse is completely ignored.
3. It completely ignores that a wife gets her share of inherited property from her parents under the latest Hindu Succession Acts. Blindly entitling wife for share in property at the divorce time under this no-fault divorce law is against social justice and completely not gender neutral. All men are assumed to be rich and wife is assumed to be poor which is clearly not true.
4. Even though a marriage can fail due to the fault of the husband or the wife, the bill essentially extends the “Financial Assistance” clause only to the wife and not to the husband and this is patently anti male.
5. When husbands are the petitioner for a divorce, the wife will be allowed to use the ‘Financial Hardship’ condition to block the divorce till her monetary demands are met, thereby legalizing extortion.
6. When a wife is the petitioner for a divorce, even though the husband may be in a “Financial Hardship” he will have no legal provision to claim monetary assistance from the wife or even to save his marriage.
7. This Bill would be widely misused against the husband who will be forced to “pay and buy” a divorce, reducing the institution of marriage into “Glorified Prostitution”.
8. Government’s intention of reducing back-log of matrimonial cases would not come through with this amendment, instead of letting the couple to arrive at a mutual consent it would only pressurize men and would get into an endless court battle in higher courts and would further increase.
9. Government’s logic of ending the financial hardship of a divorced wife is completely flawed as even as per government 70% of Indian population needs Food Security let alone have a house or property. In other 30% only 10% own their own homes and in those only a small percentage is Hindu that falls under this amendment. This bill is not going to bring a social change or security in any way when seen holistically.

OVERHAUL OF THE FAMILYLAWS IN INDIA IS NEEDED INSTEAD:

1. Hindu Marriage Act is conceived as an overall a gender neutral act and it must not me made gender biased in anyway.
2. The maintenance and alimony sections (HMA 24 and 25) must be brought up-to-date considering the enhanced education, earning capacity and women friendly work atmosphere in the country.
3. As women can and does inherit the property from her own parents under the present laws, women being given any direct or indirect share in in-laws property is illogical and against natural justice.
4. Consideration of any property while determining Alimony should be as per the financial contribution by husband and wife.
5. In case of non-financial contribution, devise a formula to evaluate minimum duration of marriage for applicability of property division as well as devise a formula to evaluate the contribution.
6. Pre-Nuptial Agreements should be made legal so as not to make marriage a gamble for Indian citizen and containing the risk of (breakage of) a marriage.

ALTERNATES FOR ENSURING FINANCIAL ASSITANCE & EMPOWERMENT FOR DIVORCED SPOUSE:

Marriage is an institution which if it does not work should not be a punishment for one party (husband) and a reward for another (wife). To empower women in true form, work opportunity should be provided by the state for a woman who faces grave financial hardships; adequate measures should be devised to address it, instead of penalizing husband alone.

We recommend the following measures to be strictly implemented:

• Hindu Marriage Succession Act of 2005 be strictly implemented. The woman’s share in her parent’s property should be SuoMoto given to her either at the time of marriage or at the time of Divorce is filed in the court (by either party) if the party wishes.
• In cases of unemployed women or women with long career break, State should take the responsibility of providing employment and livelihood to divorced wife, Employment for Divorced wife in line of Mahatma Gandhi NREGA must be institutionalized. A Divorced Wife Welfare Fund may also be created for financial support to them in line of the Food Security Bill.

OUR DEMANDS:

1. By attempting to create draconian marriage breaking laws like Marriage Law Amendment Bill on one hand and to legalize prostitution on another, the government has made its intentions very clear on what its wants to do with the sacred Hindu Family.  This bill needs to be immediately stopped and public opinion must be sought through an extensive public debate.
2. Issue the Draft for Public Opinion and responses on the Draft Bill.
3. Involve stake holders of similar stature in drafting procedure i.e., if there are no Men’s Rights Authority (like National Commission of Men) who are part of drafting then even Ministry of Women and Child Development and National Commission of Women MUST not be allowed to participate in this procedure.
4. Initiate the process of formation of National Commission of Men involving bodies who have been working for Men for years to bring the equitable balance back into the society in terms of Laws and Law Making process.
5. Initiate a Parliamentary Committee (Joint Select Committee) procedure to relook at the Draft and see if there is a need of such a law and if it is as per the guidelines of Hon’ble Supreme Court or being formed under pressure of some interested parties.
6. Amending section 13D and making it gender neutral and allowing both the Husband and Wife to pray for ‘Financial Hardship’.
7. Providing a clear & objective definition of “Financial Hardship’ so that this term is not interpreted in a wrong way and divorces are not sold by wives. All other maintenance cases filed by the wife, like Sec24, CrPC 125, DV etc, should not be allowed to continue, blocking the judicial dockets, as the relief sought in all of them, will also be available in this Bill only.
8. Creating objective parameters for calculating financial assistance like tenure of the marriage and relative sacrifice made by the parties in the marriage.
9. Reduce separation period from 3 years to 1 year under Section 13C – petition for divorce only after 1 year of marriage.

10.  Include condition of finishing/quashing all litigation before divorce is granted so that both parties can live peacefully and that judicial burden can be reduced.
11.  Condition of closing child custody litigation before granting divorce under Section 13C, so that rights of child to seek the involvement of both parents are not taken away from it.

Sir, we earnestly request your immediate intervention since such half-baked hastily prepared formulations, sans due consultation, & based on unfounded prejudices, have the potential to grievously imperil the social fabric of the society. This is apart from the stupendous economic impact caused by the matrimonial disputes and their offshoots including criminal cases. It is well acknowledged that Indian laws, i.e. the legal framework that enables a society to believe in justice and devote its energies to productive endeavors, has not kept pace with the times, is badly outdated and is designed more to benefit the legal fraternity than the litigating parties, howsoever pitiable and needy they may be. Strife and discord can only harm a society’s march towards improved quality of life. You have enthused the nation by giving it a vision, courage to dream big and faith in its ability to achieve the same but all this would necessarily require a healthy society where the mind is fearless. We request you to take decisions that have far reaching consequences after due thought and consideration.

Looking forward to your kind help and support and immediate action as per the Prayer .

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[1]http://www.telegraph.co.uk/news/worldnews/asia/china/8714097/China-tries-to-stop-women-marrying-for-money-rather-than-love.html
Click Here to Know why China SC scraped such LAW.