This article is written by Kritika Garg, from National Law University, Odisha. This is an exhaustive article which deals with the difference between Alimony and Palimony.

Introduction

Marriage, in India, has always been considered to be a sacred bond between two persons. However, with the passage of time, it’s not only the concept of marriage that has evolved, but the concept of a live-in relationship has also emerged. Couples prefer to cohabit without getting married which actually is a live-in relationship.

However, many times, the couples, be it a married couple or an unmarried couple, find it difficult to continue the relationship that they are in and it starts disturbing their life. This is when the couple decides to separate and thus, resorts to divorce. However, during that relationship, the couple shares its financial responsibilities, and separation does affect their standard of living.

The court, therefore, awards Alimony, which is basically financial support that is extended by a financially strong spouse to a financially weaker spouse so that the weaker spouse can maintain the standard of living that he/she enjoyed during the marriage. But what about a live-in relationship couple? They also share their financial responsibility and separation affects them as well. Thus, the courts have come up with Palimony which is alimony given in case of separation of unmarried couples. 

Alimony

Alimony, also known as spousal support, is financial support that is extended by one spouse to the other after divorce either in accordance with a settlement or as a result of a court’s decision. While the main purpose behind alimony is to settle any unfair economic effect that might arise from a divorce, it is also used to improve the financial situations of a partner, taking into account the situation that exists before and after the divorce. 

For example, there might be a situation where one of the partners stayed home, never had a job, and was completely dependent on the other partner. Now after the divorce that partner needs some source of income for financial support. In order to settle such unfair economic effects of divorce, Alimony is awarded. 

Types of Alimony

There are five types of Alimony:

• Separation Alimony

This type of alimony is ordered when a couple gets separated with one of the partners being financially unsound. The payment of alimony can be stopped with mutual agreement between the parties, and if the couple takes divorce, then, the alimony is changed into another kind of alimony. 

• Rehabilitative Alimony

This kind of alimony is awarded to the financially weaker partner till the time he/she finds a means to make a living on his/her own. There is no set time for rehabilitative alimony and the same differs from case to case basis. The main purpose is to support the person till the time he/she gets employment and earn enough to take care of himself/herself.

• Permanent Alimony

This type of alimony is awarded for a lifetime period. There can be several factors due to which permanent alimony can be awarded. One such factor is disability. If the recipient is a handicap or suffers from any disability which renders him/her incapable of working, then, the court may award lifetime alimony. This type of alimony does not stop unless either of the spouse dies, or the recipient remarries or cohabits with someone else.

• Reimbursement Alimony 

This kind of alimony is awarded when one spouse works to put another spouse to college or any other program resulting in the spouse earning more money. The purpose is to reimburse the cost that the spouse incurred on another spouse’s education or training. 

• Lump sum Alimony

This type of alimony requires the payer spouse to make one-time lump sum payment to the recipient spouse at the time of divorce. No future payment is to be made, once the payer spouse pays a lump sum amount.

How is the amount of Alimony determined?

While the amount to be paid as alimony is determined on a case to case basis, there are certain points that the court considers while determining the amount of alimony:

• Financial conditions of both the spouses;
• The time span of the marriage;
• The age, physical condition, mental health and emotional well-being of each of the spouse;
• Their standard of living during their marriage;
• Earning capacity of each spouse;
• Employability of each spouse; and
• Whether the spouse who is going to pay is in a condition of supporting both financially or not.

These factors not only affect the amount of alimony, but they also determine the time period for which the money has to be paid. Such as:

• Marriages lasting for more than 10 years get lifetime alimony.
• Younger spouse generally gets alimony for a shorter span of time as compared to the older spouse provided the court is satisfied that he/she will become financially stable.
• Spouses suffering from any health issue get greater alimony as compared to a sound spouse.

The purpose behind alimony is to equalize the conditions of both the spouses which means that the spouse with higher income pays greater alimony whereas spouse with lower income pays lesser alimony.

Spouses with less income or no income are entitled to get alimony which can range anywhere from 20% to 30% of other spouse’s monthly income. However, as per the judgement of the apex court in the case of Kalyan Dey Chowdhury v. Rita Dey Chowdhury, the alimony amount cannot exceed 25% of the husband’s monthly income. 

For how long Alimony has to be paid?

Alimony can be a one-time payment or a monthly payment as well. Now the question arises here that in case of a monthly payment, for how long does the payer spouse needs to pay alimony to the recipient spouse? If the same has been decided by the court in a divorce decree, then, it is supposed to be paid till the time as mentioned. But what if it is not mentioned or if something in between happens, for instance, the recipient remarries or the payer spouse dies?

Alimony is generally referred to as “rehabilitative” which means that it is to be paid till the time the recipient spouse becomes independent or employed. However, in a situation when the recipient remarries, the alimony award generally ends. Apart from that, in case of death of the supporting spouse, the alimony payment might not terminate, when it is really difficult for the recipient spouse to become self-supportive, maybe due to his/her age or health conditions, etc. In conditions like this, the court might order for support to the recipient spouse via the payer spouse’s property or insurance money.

When can a wife claim Alimony?

Wives with no income or less income can claim alimony from her husband on divorce which cannot exceed 25% of her husband’s total monthly income. The Supreme Court in a landmark judgement of Shailija & Anr v. Khobanna held that just because the wife is capable of earning, it does not mean that she does not have a right to maintenance, or the amount of maintenance can be reduced. What the wife is capable of earning and what the wife is earning are two different things that cannot be equated for the purpose of reducing maintenance.

Right of a working wife to claim alimony

Even in case of a working wife, who earns money, she still has a right to claim alimony on divorce. In a recent case of Alphonsa Joseph v. Anand Joseph, the Kerala High Court has held that the claim for maintenance cannot be rejected on the ground that the wife is earning. Courts have observed that the purpose behind alimony is to maintain the same standard of living of the couple that was there before the divorce. In cases where the income of the wife is not sufficient to maintain the same standard as she enjoyed during the time span of her marriage, then she is entitled to get alimony from her husband.

Apart from that, in case a wife has child custody, then also she is entitled to alimony so that she can raise her child and maintain the same standards as would have happened had the child stayed with the complete family.

When a wife earns more than the husband

In case, when the wife earns more than the husband even then, the wife can claim alimony provided her income is not enough for her maintenance. However, the amount of maintenance that is being paid to her is less. 

In a landmark case of Abdul Rahim Raheman Shaikh v. Saida Abdul Rahim Shaikh and Anr., both husband and wife who were senior citizens were earning. The husband was earning Rs. 1700 whereas the wife was earning Rs. 1800. While deciding the case, the trial court ordered the husband to pay Rs. 1000 to the wife as maintenance which was then reduced to Rs. 750 by the Bombay High Court since the wife was earning greater than the husband. 

When can a husband claim alimony?

In situations where the wife earns greater money than the husband and the husband can prove that he has no independent income, sufficient for his support and necessary expenses of the proceeding pending, then the wife can be asked to pay interim maintenance to the husband as per Section 24 of the Hindu Marriage Act, 1955.

In the case of Rani Sethi v. Sunil Sethi, the wife was ordered by the court to pay an amount of Rs. 20000 as monthly maintenance to her husband with an additional amount of Rs. 10000 as litigation expenses.

However, there have been cases where the court has rejected to award maintenance to the husband even when his ex-wife earns more money. The court has time and again focused on providing maintenance to the husband in case of any disability only. One such case is Narender v. Minakshi where the wife was earning Rs. 35000 per month as a teacher while the husband was earning Rs. 5000, still the court rejected to award alimony for the sole reason that the husband was fit to maintain himself.

The wife can also be asked to pay maintenance to his husband for a lifetime under Section 25 of the Hindu Marriage Act, 1955 considering:

1. The income of both the spouses.
2. The property of both the spouses.
3. The conduct of both the spouses.
4. Other circumstances of the case.

The basis for rejection of claims for maintenance 

As per Section 125 of the Code of Criminal Procedure, 1973, a  wife is not entitled to receive any maintenance from the husband, if: 

• She is living in adultery;
• There is no sufficient reason to live separately; or
• They separated on mutual consent.

In the case of Anil v. Mrs. Sunita, the wife left her matrimonial house without any reason and the husband even went to take her back. The wife claimed maintenance, but the court rejected her claim stating that she willingly left her matrimonial house without any reason. Thus, she is not entitled to any maintenance.

Palimony

Derived from the word alimony itself, Palimony is the provision for providing maintenance on separation to the partners who lived together in a live-in relationship. However, it’s only the genuine relationship that it extends to, and not the one in which either of a partner is married to some other person. The relationship needs to be “in the nature of marriage” as defined under Section 2(f) of the Domestic Violence Act to be applicable for Palimony.

It was in the case of Velusamy v. Patchaiammal in October 2010, when the apex court recognized the right to ‘Palimony’ to be awarded in live-in relationships and termed it equivalent to the alimony.  The court also laid down certain factors to determine whether the relationship is of the nature of marriage or not and thus, applicable for palimony or not. These factors are:

• The couple must be eligible to marry; 
• They must come out in society as a couple akin to a married couple;
• They must have moved in together with free consent; 
• They must have spent a significant period of time together;
• They must have stayed together in a “shared household” as defined under Section 2(A) of the Protection of Women from Domestic Act.

Important Judgements

Badri Prasad v. Dy. Director of Consolidation (1978)

It is a landmark case in which the Supreme Court for the very first time recognised live-in relationships and gave validity to as many as 50 live-in relationships.

Tulsa & Ors v. Durghatiya & Ors. (2008)

In this case, the court gave legal status to the children born out of a live-in relationship. The court that if a couple in a live-in relationship cohabits for a considerable time period in front of a society that considers them akin to a married couple, then a child born out of that relationship is legitimate and has a right to property out of the parents’ property.

Indra Sarma v. V.K.V. Sarma (2013)

In this landmark judgement the court specified certain categories wherein the live-in relationship would be considered valid and thus, have a scope of palimony:

1. Domestic Relationship (defined under Section 2(f) of the Protection of Women from Domestic Violence Act) between unmarried male and female, both adults.
2. Domestic Relationship between an adult married male and unmarried female entered knowingly.
3. Domestic Relationship between an adult unmarried male and married female entered knowingly.
4. Domestic Relationship between an adult married male and unmarried female entered unknowingly.
5. Domestic Relationship between same-sex individuals.

Major differences

Which is more beneficial?

Both the terms, Alimony and Palimony, have there known application and importance. However, Alimony is more beneficial in the sense that in case of Alimony, a couple staying together for more than 10 years have a chance of getting lifetime alimony, however, such is not a case with palimony. But this does not make palimony less important for a fact that palimony recognises the rights of an unmarried couple.

While Alimony is awarded in the case of a legally married couple, Palimony is awarded in case of an unmarried couple cohabitated for a considerable time. Alimony is a recognised legal term which is dealt with under various personal laws. However, Palimony is not a legal term. It is not dealt with under any specific laws, however, the cases concerning Palimony are dealt with as per the Domestic Violence Act, 2005.

Conclusion

While Alimony is a form of relief that is being extended to a spouse by another spouse during a divorce, Palimony is similar to it with the only difference that the couple included in palimony is not a legally married couple, rather they are people who lived together as a married couple for a considerable time before getting separated. Both alimony and palimony are given with the same purpose of improving the financial conditions of the financially weaker partner which might have deteriorated as a result of divorce or separation.

References

• https://blog.ipleaders.in/alimony-laws/
• https://blog.ipleaders.in/how-to-establish-how-much-alimony-you-should-get-in-case-of-divorce/#Can_working_wives_claim_maintenance
• https://www.vakilno1.com/legal-news/important-judgments-on-maintenance.html
• https://indialawyers.wordpress.com/tag/palimony/
• https://www.legallyindia.com/views/entry/right-of-maintenance-to-women-in-live-in-relationships
• https://www.firstpost.com/india/partners-in-live-in-relationships-in-india-can-hope-for-better-rights-if-earlier-verdicts-are-anything-to-go-by-4751271.html
• https://timesofindia.indiatimes.com/blogs/legally-speaking/decoding-the-dynamics-of-live-in-relationships/

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