In this article, Anubhav Pandey discusses wife’s right to get alimony in India.
How much alimony should I get if I divorce my husband in India
Alimony is husband’s or wife’s right for maintenance after divorce. In India alimony is governed according to the personal laws as well as under the provision of Special Marriage Act. What are the criteria which decide the alimony which a wife should get? How is alimony decided in India? What is the law which governs matter relating to alimony in India? How is alimony decided in Hindus? What is the criterion to decide how much alimony a wife will get after she divorces her husband in Muslim law?
Hindu divorce and alimony. How much alimony should a wife get
In Hindus, laws regarding alimony are governed by personal as well as central act. The expression used in the opening part of Section 25 of the Hindu Marriage Act, 1955 enables the provision of alimony or maintenance. This provision cannot be restricted only to decree of judicial separation under Section 10 or divorce under Section 13. It encompasses within the expression all kinds of decrees such as restitution of conjugal rights under Section 9, judicial separation under Section 10, declaring marriage as null and void under Section 11, annulment of marriage as voidable under Section 12 and divorce under Section 13.
Alimony under Hindu Marriage Act, 1955
Any court exercising its jurisdiction may, on application made by either the wife or the husband, can order either the husband or the wife as the case may be, to pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant
The things which court keep in mind while deciding the quantum for maintenance are,
- Income of the party against whom alimony has been claimed,
- Property of the party against whom alimony has been claimed,
- The income and other property of the applicant,
- The conduct of the parties and other circumstances of the case.
If the court is satisfied that there is a change in the circumstances of either party at any time after the quantum of alimony has been fixed by the court. The court may, at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.
If the court is satisfied that the party in whose favour an order has been made under this section has remarried or where the husband has had sexual intercourse with any woman outside wedlock may modify the quantum of alimony.
Right of alimony for woman as per the provisions of Hindu Adoption And Maintenance Act, 1956
A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance and alimony will be granted to her on the following ground-
- If the husband is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or willfully neglecting her;
- if the husband has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;
- if the husband is suffering from a virulent form of leprosy;
- if the husband has any other wife living;
- if the husband keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;
- if the husband has ceased to be a Hindu by conversion to another religion;
- if there is any other cause justifying her living separately.
A Hindu wife will not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.
How is the quantum for alimony decided
The following factors are looked at while deciding the quantum for alimony.
- Position and status of the parties,
- The reasonable wants of the person seeking such alimony,
- In case where the claimant is living separately, whether the claimant is justified in doing so,
- The value of the claimant’s property and any income derived from such property, or from the claimant’s own earnings or from any other source
Rights of alimony for woman as per the provisions of Code of Criminal Procedure
Another law regarding alimony is laid down in section 125 CrPc. It talks about alimony rights to wife given by the husband. Section 125, along with several other alimony rights, grants the right of Interim maintenance also. The Supreme Court in various of its judgment has made it clear that interim maintenance can be awarded before the final disposal of a case. Though there is no specific provision in the Code regarding interim maintenance but judicial activism has helped in evolving this law as it respects the rule of law.
Muslim divorce and alimony. How much alimony should I get if I divorce my husband
The first step is to decide whether the maintenance will be as per Section 125 Code of Criminal Procedure or as per the provision of Muslim Women Protection Of Rights On Divorce Act, 1986. Provision of section 125 CrPc is dealt above in detail. Let us take a look at the provision of alimony under Muslim Women Protection Of Rights On Divorce Act, 1986.
Muslim woman reserves the following rights after getting divorced by their husband
- A reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband
- An amount equal to the sum of mahr or dower agreed to be paid to her at her time of her marriage or later according to Muslim law
- A title to all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends.
What to do when your husband refuses to maintain you after divorce
Where a reasonable and fair provision and maintenance or mahr due has not been made or paid or the properties given to the wife before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends have not been delivered to a divorced woman on her divorce then she has the following rights available.
- She or anyone duly authorised by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, mahr or dower or the delivery of properties
- The following is looked by the Magistrate while deciding such cases
- Whether the husband having sufficient means, has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children or not?
- The amount equal to the sum of mahr or dower has not been paid or that the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends have not been delivered to her,
Such application have to be disposed within a period of one month.
Does a Muslim woman has any other legal option available when her husband refuses to pay her the alimony
- When a divorced Muslim woman has not re-married and is not able to maintain herself after the iddat period, she may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her
- Where such divorced woman has children, duty is of the children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, duty lies on the parents of such divorced woman to pay maintenance to her.
- In the case where there is no one to maintain the wife then, State Wakf Board established under section 9 of the Wakf Act, functioning in the area in which the woman resides, is duty bound to pay such maintenance as determined by the court.
Merits on which quantum of alimony is decided under Muslim Divorce and maintenance laws
- The needs of the divorced woman,
- The standard of life enjoyed by her during her marriage and
- The means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property
Alimony under Christian law
Section 36 of the Indian Divorce Act, 1969 governs the provision of alimony for Christians in India. Under Section 36, a woman can claim her right to alimony and the husband will be entitled to pay the alimony, if directed by the Court.
Section 36 of the Indian Divorce Act, 1969 read as follows:
- In any suit under this Act, whether it be instituted by a husband or a wife, and whether or not she has obtained an order of protection the wife may present a petition for expenses of the proceedings and alimony pending the suit.
- Such petition shall be served on the husband; and the Court, on being satisfied with the truth of the statements therein contained, may make such order on the husband for payment to the wife of the expenses of the proceedings and alimony pending the suit alimony pending the suit as it may deem just.
- Provided further that the petition for the expenses of the proceedings and alimony pending the suit, shall, as far as possible, be disposed of within sixty days of service of such petition on the husband.
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