alimony

In this article, Akanksha Misra, of Symbiosis Law School, NOIDA discusses alimony and all the pertinent questions relating to alimony in India.

Introduction

Marriage marks the beginning of a partnership that is expected to last a lifetime by the society. But this partnership does not always go the expected way due to personal reasons of partners which eventually disturb their life and make it unbearable. Divorce has helped such individuals in these situations by seeking the remedy of law to separate from their partner. Divorce is the legal method of putting a relationship to an end and it should be justified by both the parties. There is usually a monetary compensation given to the financially weak party by the financially stronger one in order for them to maintain the same standard of living after separation. This compensation is usually an obligation by law in the majority of countries.

What is alimony?

The term alimony is derived from the Latin word ‘Alimonia’ which means sustenance. It is also referred to as spousal support or maintenance. It is a legal obligation of a partner to their spouse to provide financial support after the course of a divorce. This financial support is based on the family laws of the country. This alimony is decided based on the earning power and the person economically dependent on the marriage.

There are mainly two types of alimony-

  1. Given at the time of court proceedings- This is usually the maintenance amount.
  2. Given at the time of legal separation- This can be given either in a lump sum or as a fixed monthly or quarterly payment or as per the requirements of the spouse.

Alimony Laws in India

The personal laws of different religions in India govern the maintenance rights of a woman. These personal laws deal with marriage, divorce, and the maintenance for which there are various provisions for people who can claim maintenance.

Let’s look at various different laws for the same:-

  1. Alimony under Hindu Law

In Hinduism, it is considered the spiritual duty of the husband to maintain his wife and give her all the comforts.

Under Section 24 of the Hindu Marriage Act, 1955, both the wife and the husband are entitled to claim maintenance from their spouse. Thus, this section does not differentiate between a male and a female. This maintenance depends on certain factors like husband’s earnings, assets & liabilities, wife’s financial standing, employment, etc.

When the couple decides to get divorced by mutual consent, the decision on the alimony to be paid by either of the party is on account of their decision and mutual understanding. But in contested matters, the issue of alimony is decided on the merits of each case. It is also possible that no alimony is given at all based on facts and circumstances. The maintenance amount depends entirely on the discretion of the court.

The wife also has an additional option to claim maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956. The entitlement to alimony is based on the following:-

  • If the husband abandons her, without any justified reason, without her consent.
  • If the husband treats her with cruelty.
  • If the husband has another wife.
  •  If the husband suffers from a virulent form of leprosy.
  •  If the husband has concubine in the same house.
  • If the husband converted to another religion.
  •  If there is some other reason for the wife to live separately.
  • This section is read with Section 23 of this Act, which specifies that it shall be the discretion of the court to award maintenance if any and what amount to be awarded.

However, if the couple is married under the Special Marriage Act, 1954, only the wife has the entitlement to claim permanent alimony.

  1. Alimony under Muslim Law

Here the parties first need to decide which law to file under, for the purpose of claiming the alimony amount. In Muslim law, women are the ones given the right to alimony. According to Sharia, the Muslim women are given the absolute right to maintenance. The right remains unprejudiced even if the wife has a good financial standing and the husband is poor.

For the Muslim women, The Muslim Women(Protection of Rights on Divorce) Act, 1986 lays down the provisions for the maintenance/alimony. After a divorce she is entitled to:-

  • A reasonable and fair amount to be paid during the iddat period.
  • An amount equal to the dowery agreed to be paid during the time of marriage.
  • A title to the property(or properties) given to her either before or after marriage.

Also, Muslim woman is eligible to claim maintenance if:-

  • She did not remarry and is unable to maintain herself after the iddat period.
  • She has children and is unable to support them.
  • If there isn’t anyone to maintain her, the magistrate would order the State Wakf Board to pay the maintenance.
  1. Alimony under Christian Law

The Christian law deals with the maintenance of wife under Section 36, Section 37 and Section 38 of the Indian Divorce Act, 1869. Section 36 deals with the petition for expenses and alimony pending the suit. The main object of this Section is to provide the wife with financial support while the matrimonial suit is pending.

Section 37 of Indian Divorce Act, deals with the matter of permanent alimony. In every case, the court may order the husband to pay a weekly or monthly sum for her financial support the court may seem reasonable. If in the future, the husband is unable to make such payment, the court may temporarily discharge or suspend the order. There are some factors taken into account under Section 37:-

  • Conduct of parties before and after marriage.
  • Nature and source of husband’s income.
  • Wife’s own fortune, if any.

Section 38 of the same Act deals with the rules regarding payment of alimony. It may be given to the wife herself or to any trustee on her behalf. The objective is to ensure the wife is given alimony.

  1. Alimony under Parsi Law

The maintenance of the wife is dealt with under Parsi Marriage and Divorce Act, 1988. Section 40, of this act, deals with the permanent alimony and maintenance. It authorizes any court to order the defendant to pay a periodical sum for a term not exceeding that of the plaintiff’s own life. It is important for the court to have regard to the conduct of the parties and the merits of each case.

Apart from the above-mentioned maintenance laws in different religions, there is also Right to Maintenance under Section 125, of the Criminal Procedure Code, 1973 which was legislated as a tool for social justice. Under this section, a follower of any religion can apply without any restriction. It lays down provision for a husband to maintain his wife, parents, and children if they do not have adequate means to maintain themselves financially or suffer from any form of mental or physical disability. The spouse can file for maintenance before the court and the court considers the income, assets, and property of the husband and will provide a proper maintenance to the required spouse as per the circumstances and requirement. There is no requirement for a wife to divorce her husband to get maintenance under this section.

Are you entitled to alimony?

More often than not, it is women who are entitled to the alimony rights. Alimony rights have been based on the existence of a weaker and stronger partner in financial standing. The stronger partner needs to compensate the weaker partner for all the comfort that has been taken away. But in a recent court case, it was ordered for the working wife to be entitled to alimony as well. It was based on the ground that it is the duty of the husband to provide for the wife and she has to be put on a higher pedestal. Also, a jobless husband was ordered to pay alimony to wife having a stable income. In case of “Streedhan”, the wife has exclusive rights over the same and the assets she received from her family or the husband’s family are to remain hers.

Can husband claim alimony?

The husband may also be entitled to alimony, though it is rare. It was observed in a 2014 case where the wife was accused of physical and mental torture on her physically challenged husband and eventually ordered her to pay the alimony. The bench also observed that the cruelty or conduct should be such that no reasonable person would tolerate it.

A husband can claim maintenance from his wife if there is any permanent disability owing to which he cannot earn the daily livelihood. Also, during the process if it seems that the husband is not financially independent to pay for the expenses of the court proceedings, the court may order the wife to pay the husband in such a case keeping in mind both husband and wife’s income and as may seem reasonable.

Section 24 of the Hindu Marriage Act, 1955 in the above matter says the following-

“Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable.”

This was seen in Nivya VM v. Shivaprasad N.K.[OP (FC) No. 26 of 2015 (R)].

How is the quantum of alimony decided?

The maintenance amount to be paid is decided by the court on the basis of some specific parameters. These parameters are both spouse’s income, net worth and investment as well as their financial needs and liabilities. Their standard of living and financial standing is also taken into account. There is not a fixed formula for the decision regarding alimony amount, generally, it was considered one-third of the spouse’s income for paying the alimony. In a recent Supreme Court judgment, 25% of the husband’s net salary was taken as a benchmark to constitute a just and proper amount of alimony. The court also observed that the amount must be just enough to live with dignity after the marital separation.

Certain factors are taken into account that influence the alimony amount as well as duration during which it needs to be paid. They are as follows:-

  1. Duration of marriage– marriages that lasted for more than 10 years are entitled to a lifetime alimony.
  2. Age of spouse– A young receipt may get it for a shorter duration of time keeping in mind their prospective career excellence and potential to become financially sound.
  3. To equalize the economic condition of both spouses– The higher earning spouse is entitled to pay heavy amount whereas a lower earning spouse may be asked to pay an able amount for alimony.
  4. Enjoyment of successful career– Such a spouse may be subject to pay a higher amount of alimony.
  5. The health of spouse– If the spouse claiming for alimony is in poor health, the other spouse will be subjected to paying high alimony to ensure proper well being and medication for the spouse.
  6. Child custody– The spouse who maintains child custody will be entitled to receive a greater amount for the expenditure incurred on child’s upbringing and education.
  7. Liabilities of the husband(like taking care of his wholly dependent parents) and flourishing career of the wife(earning sufficient amount comfortably) will also be considered.

Mode of payment of alimony

The alimony can be given through two modes of payment, either as a lump sum or regular monthly payment. Usually, the former option is the preferred one. This is because lump sum payment gives certainty to the partner receiving it as monthly payment may stop if the giving spouse loses his or her source of income or reasons like death. Also, lump sum payment is not subject to taxes as it is considered a capital receipt whereas monthly payment is subject to taxes for the spouse who gets it.

To summarise, alimony with respect to various personal laws is as follows:-

Personal laws & Parameters Hindu Law Muslim Law Christian Law Parsi Law
Relevant legislation i) Hindu Marriage Act, 1955

ii) Hindu Adoption And Maintenance Act, 1956

The Muslim Women(Protection of Rights on Divorce) Act, 1986 Indian Divorce Act, 1869 Parsi Marriage & Divorce Act, 1988
Key provisions Hindu Marriage Act- Section 24 and Section 25

Hindu Adoption And Maintenance Act- Section 18

Section 3(1), Section 3(2) and Section 4 Section 36, Section 37 and Section 38 Section 39, Section 40, Section 41 and Section 42
Is the husband entitled? YES (under Hindu Marriage Act, 1955) NO NO NO
Factors affecting the quantum of maintenance i) Income & property of the claimant

ii) Income & property against whom alimony is claimed

iii) The conduct of the parties and other circumstances

i) Needs of the divorced woman

ii) Standard of living at the time of marriage

i) Conduct of parties before and after marriage

ii) The nature and source of husband’s income

iii)Fortune of the wife & other circumstances

i) Plaintiff’s own income

ii) Income of defendant

Payment Lump sum or regular fixed amount Lump sum or instalments.

Even monthly payment beyond iddat period till the amount is fixed

The gross sum of money, or monthly or weekly sum paid directly to the wife herself or her trustee The gross sum of money or monthly or periodical sum for a term not exceeding the life of the plaintiff

Is it mandatory to pay alimony?

Not every spouse is required to pay alimony which is also known as maintenance. Divorce alimony is granted mostly in cases where a spouse is not able to support herself or himself without any financial help from their former partner. This alimony can be either temporary or permanent. It is temporary when the spouse getting alimony is still young and requires some time to start earning well on their own. It may be permanent if the spouse has no probability of becoming financially sound owing to their age or disability or if the partner is not receiving the same enjoyment and comfort during their married life.

If partner claiming the alimony was not the financial provider and wholly or partly depended upon their spouse, then the financially stronger partner will be asked to pay the alimony. The appropriate amount of alimony and the duration vary based on the court the case is in.

What if there is a refusal to pay alimony?

There have been numerous cases where the ex-spouse refused to pay the amount of alimony or quit their jobs for this purpose. This refusal may count as the contempt of court and may lead to imprisonment for a few months to even years based on the facts of the case. The ex-spouse may also be asked to compensate their former partner by paying a fine. In short, this refusal can be very costly to bear as the court takes this matter of contempt very seriously and regards it as interference with the due course of justice.

How litigants misuse the provision of alimony and what can be done?

There have been several cases where the petitioner has misused the provision of alimony for their financial gain without any reasonable explanation. Both, males as well as female, have the potential to earn and to try to earn their own livelihood. This has been more forced on men to get their hard earned money in comparison to women and this is due to the gender roles that have been determined by the society. Women are seen as potential child-bearers who need to take care of their families and can sustain without a job. Even when a woman is efficient enough and young enough with potential, she still finds solace in getting maintenance from her husband and this should be seen as greed. In a recent case, a highly qualified woman asked for alimony from her husband and quit her job for the same. The court observed that she cannot sit idle expecting to get an alimony from her husband. There is also another case from such numerous cases where a woman was denied alimony by a court in Pune. She was well educated and had been earning adequate money in a job before marriage.

Such litigants forget that the whole idea of the maintenance provision is so that those individuals not having any capacity to support himself or herself and only those should get the benefit. Even women not leading the same comfortable life as during marriage are given this right to get alimony. The court of law should consider helping or rehabilitating such women rather than just letting them rely on alimony as a quick solution.

The court should also consider both the genders equal and should not be quick to judge as this can lead to an easy bias. The respondent’s side should be given due emphasis and the women’s earning and potential should be considered properly.

Can a working woman ask alimony in India?

There have been recent judgments in which the court has given the right to alimony to working women as well. This is usually given on the ground that the women have the right to live a dignified life according to her husband’s standard of living. Also, it is believed that it is the husband’s duty to provide his wife with every comfort and financial support. Judgments, providing these grounds, have been given by a Family court in the city of Nagpur. This court also held that the husband cannot avoid his liability towards the wife.

Another significant judgment was delivered by a court in Delhi which allowed a working wife to claim alimony based on certain facts of the case such as to maintain her minor child. The court also stated that she would not get the same support to manage her child as she had been getting while residing at her matrimonial home.

But there have also been cases when the court has disallowed working women from claiming alimony owing to her young age, potential, adequate income, and a successful career. Thus, it cannot be said that all working women get their alimony.

Is there any difference between Alimony & Maintenance?

The answer is NO. Alimony, spousal support or maintenance- All terms mean the same, ie., the legal obligation on a partner to give financial support to their spouse after the course of a divorce. These terms are known by different names in different countries. For instance, it is known as ‘alimony’ in India, ‘ailment’ in Scotland, ‘maintenance’ in countries like England, Ireland and Canada, and ‘spousal support’ in the United States.

Difference Between Alimony & Child Support

Both alimony and child support are different from one another even though both require a payment by the spouse to their partner for the same.

In case of alimony, the spouse gives financial support to their partner to lead a comfortable life without any financial burden as the partner claiming the alimony may not have the sufficient means or the ability to earn adequate income for themselves. It usually involves two persons- one with stronger financial standing and other with weaker, where the stronger one pays the alimony one to the one requiring it.

On the other hand, child support is a separate payment to help raise the young child. The parent retaining the custody spends a considerate amount of money as well as time on their child, thus child support helps with easing off the burden on money spent. These payments usually end when the child attains the age of an adult.

Conclusion

Alimony comes as a relief to those who cannot maintain themselves owing to their personal reasons and conditions. This provision has enabled many to maintain themselves and their family. The court grants it, based on the income and assets of the husband or wife, to be given to their partner and makes a decision. It is also dependent on, under which law the petition for alimony has been filed.

References

5 COMMENTS

  1. I was granted a divorce by the Bombay High Court basis a settlement Agreement filed in the Family Court at Bandra under the Special Marriages Act. That I would pay her Rs 25 Lacs and 25% of my Income till the time I found a job, since I had lost my job because I was suffering from TB. The High Court in its order clearly stated that this was towards permanent alimony and Full and Final Settlement. I have twins aged 10 years. She is a lawyer but not working and I ltoo am lawyer in the Corporate sector. I lost my job this month. The High Court passed the Order in 2014 and the marriage lasted 6 years. My question is very simple do I have to pay for my children ‘s upbringing? At the time she was interviewed at the Judge’s chambers and I was not present but I strongly presume that she was asked that this is full and final Settlement. Till the time I had a job from 2018 till date I was paying her Rs 25000 a month but now with out a job I can not pay and besides I was making payments only out of love and affection for my kids not because of the High Court Order. She is getting rental from her flat and is staying in her own accommodation with the kids only. Trust I have provided full information. Tnx in advance.

  2. Hi Akansha..your post was my day saver as I have to explain this concept in class on Monday. Also would you be able to provide your email address as I have a few questions regarding this. I also want to write blogs thus need your guidance .

    • Hi, Sagar. For your privacy, we have removed your email id from the above comment. However, you can drop your queries at [email protected] and we will get you connected with the author. Thank you for your feedback.

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