Is an agreement between a hindu husband and wife to refer all future matrimonial disputes to arbitration valid

Question

Is such an agreement opposed to public policy ?

Is the law of contracts not applicable between husband and wife ?

Is an agreement to be bound by Alternative Dispute Resolution ( ADR ) in case of future matrimonial dispute valid under Hindu Law ?

Clarification : I am not asking whether a matrimonial dispute can be settled in Family Court or Civil Court, my question is whether an Arbitration Agreement is Valid between husband and wife ?

Secondly, is it not true that after Hindu Marriage Act, a hindu marriage is no more purely sacramental but quasi-contractual since it requires free consent and provides for divorce ?

Answer 1

Firstly the marriage in general in India is a sacramental ceremony not a contractual obligation. Secondly the matrimonial disputes are being heard in the family courts which are formed on the basis of the Family Courts Act, 1984. The Preamble of this Act provides: - An Act to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. Section 7 of the Act provides: - Jurisdiction
(1) Subject to the other provisions of this Act, a Family Court shall-
(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.
Explanation: The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely,-
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise-
(a) the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and
(b) such other jurisdiction as may be conferred on it by any other enactment.

Section 9 of the Act provides: - 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.
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.
All these provisions as mentioned above give well defined jurisdiction to such family courts to settle any sort of matrimonial dispute amicably & no need for any arbitration in such cases.

Answer 2

Gee, I thought an agreement between two adults to be valid. however, who would enforse such an agreement between two married people? In the United States, there is only one law; Hindu law would be a social contract and not public policy.

Answer 3

Pre Nuptial Agreements are valid in every country except India. In India all the laws are Gender Biased - if a woman misuses the law to extort and harass you need to bear to it no other go as long as you are married to an Indian Lady (citizen or origin doesn't matter)!!

Answer 4

It would depend on where you are living. In the USA, no because it's not a contract here.

The marriage is recognized but if you got divorced or separated here in the States, the laws of the state you are living in would be the governing law.

Answer 5

It is entirely uptohe couple if they want to go to arbitration. Moreover, if the case goes to courts. The judge will order arbritration anyways before listening to your case.

Good Luck.

Answer 6

You appear to be in an utter state of confusion with regard to the subject matter, and need expert guidance from someone in person, which you do sooner the better.

Answer 7

You need to have free concent for any contract

Answer 8

does your wife have equal say in the marriage if so,then why don't you ask her opinion?

Answer 9

yes

Answer 10

I have no idea - but it doesn't sound very practical