By Advocate Karan Dua | Vintage Litigation, Delhi |  Marriage Law, Divorce Law, Family Lawyer

You are getting married. You have built a business, inherited property, or simply want clarity about what happens if things go wrong. You want a prenuptial agreement.

Can you have one in India?

The short answer is: yes — but with major caveats that most people (and even some lawyers) get wrong. The long answer requires understanding exactly what Indian courts will and will not enforce, and how to structure any pre-marriage agreement so it actually works when you need it.

This guide gives you that long answer — clearly, honestly, and practically.

What Is a Prenuptial Agreement?

A prenuptial agreement — commonly called a “prenup” — is a written contract signed by two people before they marry. It sets out in advance how property, assets, debts, and financial obligations will be divided if the marriage ends in divorce or death.

In the United States and United Kingdom, prenups are well-established legal instruments with dedicated statutes. In India, the situation is far more complicated — and far more nuanced than the simple “prenups are illegal in India” myth that circulates online.

Here is the truth: there is no Indian law that expressly bans prenuptial agreements. There is also no Indian law that expressly validates them. What exists is a legal grey zone — shaped by old cases, conflicting High Court rulings, the Indian Contract Act, personal marriage laws, and one very important exception in Goa.

Understanding that grey zone is everything.

Why Prenuptial Agreements Are Legally Complicated in India

The core legal tension goes back to a fundamental question: Is marriage in India a contract — or a sacrament?

Under Hindu personal law, marriage has traditionally been treated as a sacrament — a religious union of souls, not a commercial transaction. This creates an immediate problem for prenups. If marriage is not a contract, how can there be a pre-contract about it?

Under the Indian Contract Act, 1872, Section 23 provides that an agreement is void if it is “opposed to public policy.” Indian courts have historically held that any agreement that “contemplates” or “facilitates” the dissolution of a Hindu marriage is opposed to public policy — and therefore void.

This is the main legal barrier to prenuptial agreements in India. It is real. But it is not absolute.

When Indian Courts Have Upheld Pre-Marriage Agreements

Despite the public policy barrier, Indian courts have, on multiple occasions, given weight to pre-marriage agreements — under specific conditions.

The Calcutta High Court upheld a prenuptial agreement that did not involve a marriage brokerage arrangement and did not violate public policy — finding it a valid contract between the parties.

The Mumbai Family Court granted divorce to a couple while holding their prenuptial agreement was not legally binding — but explicitly stated it had “persuasive value.” The court used the agreement to understand the parties’ intent at the time of marriage and their willingness to separate. This is significant: even an “unenforceable” prenup shaped the court’s thinking.

Delhi High Court judgments have consistently held that agreements between spouses regarding property — particularly when reached voluntarily and without coercion — may be taken into account in divorce proceedings, even if they cannot be mechanically enforced as contracts.

The direction of the jurisprudence is clear: courts are increasingly willing to look at pre-marriage agreements as evidence of intent, even where they stop short of full contractual enforcement.

The One Place Where Prenups Are Fully Legal: Goa

Here is the critical exception that very few people outside the legal profession know about.

Goa is the only state in India where prenuptial agreements are fully legal, registered, and enforceable — because Goa follows the Portuguese Civil Code, 1867, which was never replaced when Goa was absorbed into India in 1961.

Under the Goa model:

• Couples must register the properties each owns before marriage
• They can choose a “regime” of property — either communion of assets (shared ownership) or separation of assets (each keeps their own)
• If no agreement is signed, the default is equal ownership of all marital property
• Prenuptial agreements are registered as formal legal deeds and fully enforceable

This Goa model is increasingly cited in debates about whether India should adopt a Uniform Civil Code — because it demonstrates that a legally clear framework for marital property agreements is workable within the Indian system.

The “MoU Strategy”: What Delhi Lawyers Actually Do

Because a formal prenuptial agreement is legally uncertain for Hindu marriages in Delhi and most of India, sophisticated lawyers — including at Vintage Litigation — often structure pre-marriage arrangements as a Memorandum of Understanding (MoU).

An MoU before marriage:

• Documents both parties’ assets, liabilities, and financial positions clearly
• Records their agreed intentions regarding property in the event of separation
• Does not attempt to “contract out” of statutory rights (which would void it)
• Is signed voluntarily by both parties, ideally with independent legal advice for each
• Is notarised and properly executed

An MoU is not a binding contract in the strict legal sense. But it is powerful evidence in divorce proceedings. Courts across Delhi have used MoUs to understand the financial landscape of a marriage, assess the reasonableness of claims, and arrive at settlements.

For NRI couples, business families, and high-net-worth individuals in Delhi, a properly drafted MoU is the closest practical equivalent to a prenup that Indian law currently allows.

What a Prenuptial Agreement or MoU Can and Cannot Cover in India

✅ What Courts Will Consider:

• Pre-marital property declarations: Who owned what before the marriage
• Inherited property: Keeping ancestral or inherited assets separate
• Business interests: Protecting a family business from being drawn into matrimonial litigation
• Debt allocation: Documenting that pre-existing debts belong to one party only
• Stridhan: Documentation of a wife’s personal jewellery and gifts
• Intent of the parties: Their mutual understanding of how assets would be handled

❌ What Courts Will NOT Enforce:

• Waiving maintenance rights: Any clause purporting to deprive a spouse of their statutory right to maintenance under the Hindu Marriage Act or Section 144 BNSS is void
• Pre-determining custody: Courts decide child custody based on the child’s welfare at the time — not on a pre-marriage agreement
• Facilitating divorce: Any clause that “contemplates” or makes divorce easier may be struck down as opposed to public policy
• Restricting legal rights: Any attempt to prevent a party from approaching a court is void under the Contract Act

This distinction — between documenting what exists and contracting away what the law provides — is the critical line that any pre-marriage agreement in Delhi must not cross.

Prenuptial Agreements for NRI Couples: Special Considerations

For Non-Resident Indians, pre-marriage agreements carry additional complexity.

A prenup executed in the United States, United Kingdom, Canada, or Australia under that country’s law may be fully enforceable there — but Indian courts will apply Indian law when deciding matrimonial matters if the marriage was solemnised in India or either party is an Indian citizen.

The Supreme Court has consistently held that foreign divorce decrees must conform to Indian matrimonial law. The same principle applies to pre-marital agreements: a foreign prenup will not override a spouse’s statutory rights under the Hindu Marriage Act or the Protection of Women from Domestic Violence Act.

For NRI clients at Vintage Litigation, we typically advise:

1. A properly drafted Indian MoU that complies with Indian law, executed alongside any foreign prenuptial arrangement
2. Clear documentation of assets in both jurisdictions
3. Explicit confirmation that neither party’s statutory Indian legal rights are being waived

Getting this right before the marriage is far less expensive — financially and emotionally — than litigating it in multiple jurisdictions after separation.

The UCC Debate and What It Means for Prenups

The ongoing national discussion about a Uniform Civil Code (UCC) for India has significant implications for prenuptial agreements.

Uttarakhand, which enacted India’s first modern UCC in 2024, has provisions for civil marriage registration and property agreements that go further than most Indian states. Legal scholars and practitioners are watching how Uttarakhand’s courts apply these provisions — as a potential template for national reform.

If India eventually adopts a national UCC, the Goa model of registered pre-marriage property agreements could become the standard across the country. Until then, the legal position remains state-dependent, religion-dependent, and highly fact-specific.

Practical Advice: Should You Get a Prenup Before Your Delhi Marriage?

If you are a business owner or entrepreneur: Strongly consider a pre-marriage MoU that clearly separates your business interest from potential matrimonial claims. Indian family courts can draw business assets into divorce proceedings — a pre-marriage document is your best protection.

If you are entering a second marriage: A pre-marriage agreement that protects your children from a previous marriage’s inheritance rights is worth every rupee it costs to draft properly.

If you are an NRI marrying in India: You need both Indian and foreign-jurisdiction documentation. Do not rely on a foreign prenup alone.

If you are a first-time couple with modest assets: A formal pre-marriage arrangement may be unnecessary — but a frank discussion with a lawyer about your legal rights on either side of a marriage is never wasted.

The bottom line: a prenuptial agreement or MoU in India is not a sign of distrust. It is a sign of maturity. And in 2026, as Delhi’s family courts see rising caseloads from marriages involving significant assets on both sides, it is increasingly a sign of good sense.

How Vintage Litigation Can Help

Advocate Karan Dua has advised business families, NRI couples, and high-net-worth individuals on pre-marriage documentation for over 15 years. We draft MoUs and pre-marriage agreements that are:

• Structurally sound under the Indian Contract Act
• Sensitive to the limits of Indian matrimonial law
• Coordinated with any overseas prenuptial arrangements where needed
• Clearly drafted so both parties genuinely understand what they are signing

Your first consultation is completely confidential and free of charge.

📞 Call / WhatsApp: +91-9999483959 📧 Email: Adv.karan.dua67@gmail.com 📍 O-11A Basement, Jangpura Extension, New Delhi – 110014

Monday–Saturday, 9:00 AM – 6:00 PM. WhatsApp available after hours.

 FAQ 

Q1: Is a prenuptial agreement legal in India?

There is no Indian law that expressly bans prenuptial agreements — but there is also no law that explicitly validates them. For Hindu marriages, they are generally not enforceable as binding contracts because courts treat marriage as a sacrament, not a commercial transaction. However, courts may give them persuasive weight when assessing divorce settlements. The only exception is Goa, where prenups are fully legal under the Portuguese Civil Code.

Q2: Can a prenuptial agreement be enforced in Delhi family courts?

A prenuptial agreement cannot typically be enforced as a binding contract in Delhi family courts. However, courts may consider it as evidence of the parties’ intentions and financial understanding at the time of marriage. A properly drafted MoU (Memorandum of Understanding) before marriage carries the most practical weight in Delhi matrimonial proceedings.

Q3: What is the difference between a prenuptial agreement and an MoU in India?

A prenuptial agreement attempts to be a legally binding contract about property rights in the event of divorce. An MoU (Memorandum of Understanding) documents the parties’ financial positions and intentions without attempting to override statutory legal rights. In India, an MoU is the more legally workable instrument — courts treat it as credible evidence in divorce and settlement proceedings, even though it is not a binding contract.

Q4: Can a prenuptial agreement take away a wife’s right to maintenance in India?

No. Any clause in a prenuptial agreement or MoU that purports to deprive a wife (or husband) of their statutory right to maintenance under the Hindu Marriage Act or Section 144 of BNSS (formerly Section 125 CrPC) is void. Courts will strike down such a clause. A pre-marriage agreement cannot override fundamental statutory protections.

Q5: Can a prenup decide child custody in India?

No. Indian courts decide child custody based exclusively on the best interests of the child at the time of the custody proceedings — not on any pre-marriage agreement between the parents. Any custody clause in a prenuptial agreement will be disregarded by the family court.

Q6: Are prenups enforceable in Goa?

Yes. Goa is the only Indian state where prenuptial agreements (called “marriage settlements”) are fully legal and enforceable. Goa follows the Portuguese Civil Code, 1867, which allows couples to register their pre-marital property and choose a property regime before marriage. This legal framework is very different from the rest of India.

Q7: If I signed a prenup abroad (USA, UK, Canada), is it valid in India?

Not automatically. Indian courts apply Indian matrimonial law to marriages solemnised in India or involving Indian citizens — regardless of where a foreign prenup was signed. A foreign prenuptial agreement will not override a spouse’s statutory rights under the Hindu Marriage Act or the PWDV Act. NRI couples should always have India-compliant documentation prepared alongside any overseas prenup.

Q8: What should a prenuptial MoU in India actually include?

A well-drafted Indian pre-marriage MoU should include: a declaration of pre-marital assets and liabilities of each party; identification of inherited or ancestral property; business interests and their ownership; documentation of stridhan and personal assets; and clear mutual acknowledgment of each party’s statutory legal rights. It should NOT contain any clause waiving maintenance, restricting the right to approach a court, or predetermining divorce outcomes.

Q9: How much does it cost to draft a prenuptial agreement or MoU in Delhi?

The cost depends on the complexity of each party’s financial profile and whether international assets or NRI considerations are involved. Vintage Litigation provides transparent, case-specific fee estimates after an initial consultation. Call +91-9999483959 for a confidential discussion.

Q10: Will a prenuptial agreement help protect my business in a Delhi divorce case?

Potentially, yes — if it is properly drafted as an MoU and clearly documents your business interest as a pre-marital or separately owned asset. Indian family courts can draw business assets into divorce proceedings when ownership is unclear. A well-prepared pre-marriage document significantly strengthens your position. However, it must be drafted correctly — a poorly worded agreement may be counterproductive.

Adv. Karan Dua  Advocate · Delhi High Court · Matrimonial & Family Law Adv. Karan Dua is a Delhi-based advocate specialising in matrimonial disputes, divorce litigation, domestic violence proceedings, and child custody matters. He practises before the Delhi High Court and family courts across the NCR, with a focus on evidence strategy and asset tracing in complex matrimonial matters.