Accentuation of sacred character of marriage in India and positioning of this sacred bond profoundly in social, cultural and religious facets of Indian circumstances, reflects the unique feature of marriage in India which has hitherto subdued the effect of contractual nature of marriage.

For quite a long period of time, marriage in India were regarded as bond or union of two families rather than that of two individual equal parties. Certainly, it cannot be said that the notion has completely withered away from entire India, but there has been a significant change in idea of marriage.

The institution of marriage in India is governed by various personal laws providing a blend of rules of wide connotations and characters making remedy to matrimonial disputes revolving an intricate cycle. Often, matrimonial disputes result in astronomical number of cases in Indian Courts. This also causes expensive litigation and cumbersome process, enervating already aggrieved parties.

In Indian courts, judges and counsellors endeavour to strike out conciliation between parties in disputes arising out of marital relations.[1] In fact, proceedings in the family courts have flexibility and an informal conduct that is conducive for settlements between the parties.[2] When parties agree to a settlement, consent terms between the parties are signed reflecting compatibility.

Thus, Consent note paves the way on which pronouncements of the Family Courts in India depends. In western world, the idea of marriage has more or less evolved as a contractual understanding between the spouses.

Many a times, martial relations are guided by an agreement specifying the rights and duties of both the spouses in uncertain circumstances, mostly after marriage. Such agreements are accorded before the marriage with consent of both the parties as important element. As such the consent terms during disputes are sparingly looked upon, and judgements are pronounced on such agreements, more commonly known as prenuptial agreements. The aim of such agreement is to provide protective covering to the interests of both the parties equally.[3]

Though in India, such agreement between the families of the spouses existed in annals of history but were never formalised.[4] Various courts have held such agreements to be invalid[5], rather mechanism of bringing consensus through consent terms during the disputes is given prominence for the settlement and resolution of matters.

Consent Note, Matrimonial Disputes and Remedies

Marriage in India is revered as a sacred bond (samskara) and a union of two souls. Though held to be everlasting, marital disputes may cause an end to the relationship making parties involved in legal battle for their rights. In India, when martial affairs are marred by conflicts between the two parties, the matter often ends up for resolution at Family Courts.

Family courts in India, could be ascribed as the most notable means to deliver justice when conflict in marital affairs between a couple arises. This is due to rigid legal mechanism and less propensity of parties to adopt for other means such ADR, mediation and conciliation.

When, in some cases, matrimonial disputes pop up between husband and wife, certain matrimonial remedies are available under the Hindu Marriage Act, 1955 to provide relief to the aggrieved spouse.

The remedies may include:

1. Restitution of Conjugal Rights (Section 9)
2. Judicial Separation (Section 10)
3. Void and Voidable Marriage (Section 11 & 12)
4. Divorce (Section 13)
5. Divorce by Mutual Consent (Section 13B)

The disputing parties in order to amicably resolve the dispute, assent to an agreement, specifying the consensus to the clauses relating to the dispute. As consent of both the parties is essential element in such agreement, the agreement signed by parties during conciliation or matter pendency before the court is known as consent note or signing on consent terms. The court may pass a decree based on mutually agreed provisions, which may be referred as consent order.

In India, disputes and matters have often led to an agreement between the parties, abating the burden of expensive litigation in courts and making the process of settlement less cumbersome. Thus, consent note or terms signed by both the parties, has proved to be a holistic solution to the marital affairs and disputes, and an effective resolution tool. Though, there have been varied interpretation to the clauses in consent terms by Indian courts. Below mentioned are some of the instances –

Priti v. Madansingh[1]

Under case Priti v. Madansingh[2], the appellant wife had approached the family court at Nagpur for grant of maintenance and restitution of conjugal rights. The pronouncement was given in her favour. Also, the respondent husband moved petition for dissolution of marriage by mutual consent under Section 13B of the Hindu Marriage Act, 1955.[3]

Mediation and conciliation process under counselling of a mediator led to signing of consent terms between both the parties and husband agreeing to deposit Rs. 4,21,000 in the family court as full and final settlement. Before the family court could pass a decree of divorce by mutual consent, wife postulated that she is not willing of seeking decree of divorce, though the Family Court directed her plea to be rejected and dissolved the marriage under Section 13B.[4]

When the appeal was filed before the Nagpur bench of the Bombay High Court, the court annulled the decision of the family court. It was argued from the appellant wife that the amount deposited in family court towards her maintenance was also not withdrawn by her, so as to set a case against her stance.

While the counsel of the respondent husband apprised court that the all the conditions mentioned in the consent terms had been complied by him, and so the decision of family court is in consonance of consent terms which were mutually agreed upon by both the parties.

It was held that since no application for decree of divorce by mutual consent under Section 13B was filed by the parties before the mediator, the family court was not justified in rejecting the application of wife regarding withdrawal of her consent regarding divorce by mutual consent. The family court ought to have permitted appellant wife to withdraw from the consent terms that were signed before the mediator. Further, the court held that the consent terms would not have a binding effect until a formal judgement and decree is passed by the court.

Pirojshah Bharucha v. Hirabai Bharucha[5]

Under this case, the respondent wife applied for fixing her alimony as per Parsi laws in India.[6] The wife assented under the consent terms agreed that she will be in no position to apply for alimony at any time in future. A noteworthy feature of the case reflects that the consent terms were signed between the parties after a decree of divorce was passed by the court.

The consent terms included clauses regarding the custody of the children, permanent alimony and provision for maintenance of the children. But the respondent wife also assented to consent terms whereby she agreed to give up all her rights to alimony in future.[7]

The court said that the wife’s right to future maintenance is a matter of public concern which she cannot barter away. Though consent decree is passed based on the consent terms mutually agreed upon by the parties, essentially fulfilling conditions of a valid contract, the contract would be void in the eye of the law due it being against the public policy. The court held that the particular part of the consent order is not a bar to wife seeking future alimony from the husband.[8]

Govardhan Kapoor v. Veena Kapoor[9]

Under the case of Govardhan Kapoor v. Veena Kapoor[10], the appellant husband entered into consent terms with the wife to cohabit with her at the time their marriage is beset by conflicts. The matrimonial home here refers to a flat which the husband had purchased in the name of respondent wife.

The consent terms provided that husband would withdraw suit in City Civil Court at Bombay and declare defendant as rightful owner of the flat, provided that the respondent and appellant husband would live in the matrimonial home together, that is, in the said flat. Soon after this, the wife approached the court for granting decree for divorce on the ground of desertion and cruelty, as well as contended eviction of appellant from the property, which the city civil court affirmed to.[11]

The appeal was made in Bombay High Court by the husband and the court said that as per the consent terms a legal right had been created in the appellant to reside in the premises. The court held that by the operation of the principle of res judicata, parties would be estopped from rebuffing from the consent terms.[12]

Prenuptial Agreement

A prenuptial agreement could simply be put forth as an agreement between the would-be spouses predetermining the status of property, financial liabilities and rights of parties in case of future uncertainty which might even extend to dissolution of marriage.[13] A pre-nuptial agreement should cover the various aspects of matrimonial disputes that may arise due to breakdown of marriage.[14]

Provided that such agreements should be entered upon by both parties without any coercion, voluntarily, without duress or undue influence. It forms a prerequisite for a prenups to be not void of the most essential ingredient in it, which is free consent.

The advantages of having a planned setup to a marriage in case of its failure, may provide expedient letting out of other spouse’s life and amicable resolution to the arising problems. There can be various attributes to this mutually formed ‘exiting plan’. Strikingly obvious, the major advantage could be frugal money nature. Maintenance and divorce suits result in exorbitant costs causing financial shrivelling of the litigating parties. Secondly, factor of mutual consent provides freedom to parties to deliberate upon the rights and conditions, and decide their position accordingly.

The plight of the parties may amicably resolve as both the parties consented to the terms of prenuptial agreements. Lastly, this may help in detection of fraud by either of the spouses and also intimate for any misrepresentation on the part of another party, as a prenuptial agreement keeps a check on other party and providing them protection from such caustic matters.[15]

It is also glaring that prenuptial agreements are not having legal sanctity in India. But many other countries, like Germany, Canada, Italy and France have framework for governing matrimonial disputes, especially in the realm of matrimonial properties.

This mechanism of laws provides for creation or absence of a marital estate. It may also provide the extent of properties to be included, questions related to procedure and by whom that is to be managed. Division and inheritance of the property at the end of the marriage is also provided.[16]

Surveys conducted amongst the divorce lawyers paint a picture that roughly 10% of marriages, take this pre-emptive action of having prenups.

It is also revealed that those opting for such a written agreement defining the rights, duties and interest in property after dissolution of marriage, are mostly from affluent socio-economic background.[17] It is worth noting that those adopting for prenuptial agreements as a means to deal with future uncertainties of their marriage, have forfeited prospective rights that a personal law under Hindu, Muslim, Christian and Parsi would have provided them. In short, the safety of individual finances is given priority to the personal law rights.[18]

In India, general course reflects marriage to be a relationship that has been structured on consent of families of both the parties, and where compatibility and other related matters are deliberated before the marriage. These all are preceding steps before a marriage is to be called arranged. So, it can ostensibly be construed that marriages in India have always been an arrangement of kind, where consensus is being reached within the relatives of would-be spouses regarding various aspects of life after marriage. Thus, it can be surmised that the concept of premarital agreements has always been adhered to in Indian marriages.[19]

Consent Note v. Prenuptial Agreement

While agreement reached between the parties during court proceeding or through the mediator, results in a consent note, there could be alternative course of similar nature and also involving agreement to resolve matrimonial disputes. These are generally categorised as prenuptial agreements or premarital agreements.

An important character of prenups is that they are formulated by the parties before the marriage. This differentiates prenups as matrimonial dispute resolution mechanism from consent terms which are part of proceedings of matrimonial nature, that is, agreement or terms signed after the marriage has already taken place.

But the implications of entering into prenuptial agreements based on consent as an essential component, has not affected the rigidity of personal laws in India and resolution of disputes are adhesive to the provisions of the respective personal law to be applied. Therefore, under Indian legal framework, prenuptial agreements have not been provided legal sanctity. This is in sharp contrast to consent note, where the agreement is itself initiated under the cycle of laws.

There have been wide interpretations by Indian courts regarding prenups. Under Tekait Mon Mohini Jemadai v. Basanta Kumar Singh[20], the agreement provided that plaintiff husband will never be at liberty to remove his wife from her parental abode. The court held the agreement to be invalid and stated that it is against the rule of Hindu personal law and also violates the tenets of public policy.[21]

There have not been wide variety of cases in Indian courts concerning validity or invalidity of prenuptial agreements. Prime reasons for this could be ascribed to the taboo assumed to be associated with such agreements. In India, the society often links arrangement of premarital agreement with lack of mutual trust amongst the parties. Though, this notion has somewhat changed, but the lack of validating character of such agreements has resulted in oblivious and indifferent attitude among parties and the society at large to accept such solutions.

Under Commissioner of Wealth Tax v. Shanti Meattle[22], court held that an agreement which provide the spouses a right to live apart is not enforceable. Also, giving legitimacy to such agreement would lead to end of all marital rights which a husband could exercise in relation to his wife.[23]Though under Indian Contract Act, 1872 the prenuptial agreement could be appropriated the concept of valid contract.

They represent same sanctity as any other contract entered upon by the parties whether oral or written.[24] This has hitherto remained as grey area where there is drought of litigation, though it cannot be assumed that courts would preclude themselves of adjudicating matters related to contracts entered by the spouses. If consensually entered into, it would be a persuasive force which will make courts competent to take cognizance of a prenuptial agreement. Though provisions regarding the fair division of property, personal possessions and financial assets of the parties would be essential factors determining the legal sanctity to be provided to a prenuptial agreement.[25]

The exception to the acceptance of prenuptial agreements can be ascribed to Goan law, pertaining to the state of Goa, where it is valid to have an agreement defining the financial division of assets between wife and husband in case of separation or divorce.[26]

In a recent judgement in 2016, the High Court of Bombay at Goa, in the case Sunita Devendra Deshprabhu v. Sita Devendra Deshprabhu[27], took into consideration the Prenuptial agreement formed by the consent of husband and wife, while deciding the matter related to division of property and other assents between the parties.[28] Though it can be concluded that there is no legal backing to the safeguards which a prenuptial agreement may provide, still the agreement would have a striking force reflecting the intent of parties to their marriage and disputes which arise out of marriage.[29]

Role of Family Courts in Conciliating

The Family Courts Act, 1984 have been cardinal in effectively dealing with matters of matrimonial nature. The purpose of the Act is to establish Family Courts to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs.

The main objectives for setting up of Family Courts could include, institution of a mechanism for conciliation of dispute, to provide an inexpensive remedy and having flexibility cum informal atmosphere in the conduct of the proceedings.[30] This has been clearly specified in Section 9 of the Family Courts Act. Section 9 of Family Court Act, 1984 provides:[31]

Duty of Family Court to make efforts for settlement-

1. In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit. -(1) In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit.
    
2. If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a settlement.
    
3. The power conferred by sub-section (2) shall be in addition to, and not in derogation of any other power of the Family Court to adjourn the proceedings.

The act provides for counsellors who are to assist the court in discharge of its function.[32] Though role of counsellors is completely unclear under the Act. Whether they are to counsel litigants prior to the filing of the cases or after, and whether the judge and the counsellor can assist simultaneously or not, are some of the grey areas where the Act seems to have lacunae.[33]
The framework of Family Court Act makes it overtly possible that there is a shift from formal adjudication of disputes based on rights to conciliation of disputes based on the needs of the individuals concerned as well as those of the society.

There had been presumption and later manifestation to the notion that family disputes are well-suited to alternative forums because the conflicts often involve a complex interplay of emotion and legal complainants. This has led to moulding of structure of Family Courts in India as per the flow of tide.[34]

Encouraging a simplified procedure for matrimonial remedies is, therefore, imperative for sustaining a healthy perception of marriage which is free of any discrimination and violence.[35]
There is the assumption of equality between the parties to a dispute.

The Act has nowhere taken into consideration the basic discrepancy of power between men and women. When two unequally placed persons are brought to the negotiating table, it is only natural for the stronger of the two parties to take advantage of the situation.

The concept of consent note has though created a bulwark for women, so that the remedy decided or the justice by the court could channel through her consent. A mediation process ensuing in a mutually agreed terms or consent terms, can also prevent unnecessary harm to men as well. A frivolous petition by the wife to implicate husband due to personal grudge towards him, can also provide husband to effectively phase out the differences and his innocence in a mediation and conciliation process.

Analysis
The consent note could be attributed as the most efficacious means for resolution of disputes under Indian circumstances. Pinpoint scrutinization of matrimonial cases in India reflects that parties have often resorted to the signing of consent terms during the pendency of the matter or during the mediation process, exhibiting inclination for the resolution of matrimonial dispute by an amicable and peaceful solution.

This disposition of the parties could be imputed to the myriad of benefits derived from signing of the consent terms. Mainly among them include, preclusion from incurring expensive litigation costs, outwitting societal taboo and disreputation, avoiding disgrace towards each other.

Though signing on consent terms could also be reckoned as the only option available to the parties in matrimonial disputes as a remedy. This encompasses in its expanse the aspect of prenuptial agreements, which are not given legal sanctity in India as of now. The prenuptial agreement could provide for all possible contingencies and possible problems that may arise in future of the marriage.

The agreement which is concluded before the marriage itself have found great significance, especially in Western and European countries. The main reason for this could be attributed to the open acceptance of contractual nature of marriage, giving validity to accord of prenup.

Though in India, where sacred character of marriage is a heavyweight quality that cannot be overlooked to the contractual nature. In Indian society, signing on prenups is considered or assumed by the society as prognostication of breakdown of marriage, and also reflection of lack of faith or trust in the other marital partner.

This prevent prenuptial agreements in Indian society. Notwithstanding, the legal system of India has also not recognised such agreements branding them as against public policy and/or violating other personal laws.

The deliberation on prenuptial agreement is thus a grey area in India, and parties could not beforehand decide to have rights and obligations under marriage. They are instead left with the only alternative of consent note, whose clauses are agreed after the marriage has already taken place, and that too, when a dispute has arisen.

This is a lacuna in Indian legal system, though mechanism of Family Courts has sought to fill this gap. The Family Court Act, 1984 provides for establishment of Family Court with peaceful, equitable and amicable solution to matrimonial disputes as their objectives. The courts have been provided aid through counsellors to reach a just and fair settlement of issues. Also judges and counsellors have been provided legal freedom to conduct the proceedings in an informal and conducive manner. This is a stimulating force to better govern matters of matrimonial nature.

Conclusion
The researcher after having deeply analysed realm of consent note or consent terms and the flexibility it renders in resolving marital affairs under Indian circumstances, concludes that consent note could be an effective means to reach a settlement and an amicable resolution of matrimonial disputes.

As it requires consent of both the parties at dispute, the resolution through a conciliatory process and its outcome is much more acceptable to the married couple than a court decree given in absence of such consensus. The mechanism of a consent could also be utilised to better support the rights of the economically disadvantaged party, usually women.

Though, consent note is a restricted option under Indian legal system for mutually resolving matrimonial conflicts. A solution of a similar kind known as prenuptial agreement is not given legal sanctity in India. There is sufficient proof to establish that these agreements can help reduce marital conflict and increase the stability of marriage.

Matters concerning custody of children, divorce procedure or judicial separation were earlier considered a taboo to discuss, as they had inherent character implicating lack of mutual trust between both parties.

But the changing scenario has led many to forego such notion, and place both parties in a better position to resolve matrimonial disputes, though prenuptial agreements still need validity under the Indian legal system. Though, the agreement signed between the parties before the marriage could have scope under Section 10 of the Indian Contract Act, 1872.

Deliberations need to be made in the sphere of premarital agreements considering their pros and con, and subsequently if found assisting in resolution of disputes, granting of legal validity to such agreement should be considered.

Family courts play a crucial role in assistance for resolution of dispute by making every effort to try to strike out a settlement between the parties. Though, the role of counsellors and judges needs a clear explanation regarding conciliation between the parties.

Notwithstanding the powers of judges and counsellors in Family Courts, an amendment in continuously transformative institution of marriage, makes imperative for this legal mechanism and Indian legal system, to adapt and modify itself with the changing characteristics of marital relationship. Also, ADR mechanisms in India need appalling changes, to gingerly phase out cases of matrimonial disputes.

End-Notes:

1. Sec. 8 and Sec. 9 of The Family Courts Act, 1984
2. Ministry of Law & Justice, Governement of India, https://doj.gov.in/other-programmes/family-courts
3. Vijender Kumar, Quest for Prenuptial Agreement in Institution of Marriage: A Socio-legal Approach, 60 JILI (2018), pp. 406-426
4. Ibid
5. Ibid
6. 2018 BHC 1806
7. Ibid
8. Sec. 13B of the Hindu Marriage Act, 1955: Divorce by mutual consent
9. Supra note 6
10. LQ 1945 HC 0107
11. Sec. 40 of The Parsi Marriage and Divorce Act, 1936: Permanent alimony and maintenance
12. Supra note 9
13. Ibid
14. LQ 2010 HC 2358
15. Ibid
16. Ibid
17. Ibid
18. Siddharth Manocha, VIABILITY OF PRE-NUPTIAL AGREEMENTS IN INDIA, LIVELAW.IN (July 29, 2019, 5:12 PM), https://www.livelaw.in/columns/viability-of-pre-nuptial-agreements-in-india-146762
19. Supra note 3
20. Vijender Kumar, Matrimonial Property Law in India: Need of The Hour, 57(4) JILI 521, 522 (2015).
21. Dilshad Billimoria, PRENUPTIAL AGREEMENTS: BUILDING A SAFETY NET AROUND ASSETS, LIVEMINT (Last visited on July 29, 2019), https://www.livemint.com/Money/ngLavHhlUeaCqDN2xoqa2K/Prenuptial-agreements-building-a-safety-net-around-assets.html
22. Ibid
23. Akansha Ghose and Pallavi Agarwal, Prenuptial Agreement: A Necessity of Modern Era, 2(5) INT’L J. OF RESEARCH AND ANALYSIS 21 (2014)
24. Supra note 3
25. ILR (1901) 28 Cal 751
26. Supra note 6
27. (2004) SCC ALL 1711
28. Supra note 6
29. Indian Contract Act, 1872, Sec. 10
30. Supra note 3
31. Prenuptial Agreement, THE TIMES OF INDIA, January 11 2019. https://timesofindia.indiatimes.com/t10-jan-12-2019/7-prenuptial-agreement/articleshow/67492145.cms
32. 2016 (6) BomCR 567
33. Ibid
34. Supra note 6
35. Ministry of Law & Justice, Governement of India, https://doj.gov.in/other-programmes/family-courts.[36] Sec. 9 of The Family Court Act, 1984
36. Sec. 6 of the Family Courts Act, 1984
37. D Nagasaila, Family Courts: A Critique, 27 ECONOMIC AND POLITICAL WEEKLY 1735 (1992)
38. Ibid
39. Law Commission of India, Consultation Paper on Reform of Family Law, p. 28