This article has been written by Sonali Khatri and Seep Gupta. Sonali is an advocate based in Jaipur. Seep is currently a student of BA.LLB at Institute of Law, Jiwaji University. The author can be reached at [email protected].
Without beating around the bush, let’s get into the substance of this article. The purpose of this article is to give answers to the most commonly asked questions whenever the issue of alimony arises in any marriage in India.
Amongst others, the article answers the following questions: what are the factors on which alimony is decided in India, how is the amount calculated, what sort of evidence should a woman use to get alimony, in what circumstances husband can claim maintenance alimony from wife, etc.
What are the factors on which alimony is decided in India?
The following are the factors that influence the duration and amount to be paid as alimony:
- The amount and duration of alimony generally depends upon how long the marriage existed. Marriages that lasted more than 10 years are entitled to be granted a lifelong alimony.
- Age of the spouse is also taken into consideration while awarding alimony. Normally a young recipient of alimony gets it for a shorter period of time if the court thinks that he or she will soon be able to become financially sound through prospective career excellence.
- Alimony is also in vogue in order to equalize the economic condition of both spouses. The higher earning spouse is liable to pay a hefty amount as alimony.
- The spouse who is projected to be enjoying a prosperous career is liable to pay a high alimony amount.
- If one of the spouses is suffering from poor health, the other is subjected to payment of high alimony to ensure proper medication and well-being of the other spouse.
- If the wife is totally unable to earn herself to maintain her livelihood, due to certain physical disability or lack of education, the husband is supposed to pay her a certain amount at a regular interval monthly or quarterly, to enable her to live a dignified life.
- When the wife is not earning, but she is well educated and qualified enough to do a job, then the court shall instruct the wife to find a job to maintain her livelihood, and pass an order to pay maintenance of a certain amount to maintain her during the period of her job search.
- If the ex-wife is in relationships with other men, whether planning to get married or not, she is not legally liable to claim any alimony (as per Section 125(4) of the Code of Criminal Procedure, 1973).
How is the amount calculated?
The maintenance amount that is calculated is based upon the following factors:
- Total monthly home income of both spouses without tax.
- Educational background of both spouses.
- The number of years of marriage.
- Number of children and child custody.
The spouse with less income or no income can get a maintenance amount which is equal to 20% to 30% of the total monthly income of the other. As per the judgment passed by the Supreme Court, alimony amount should not exceed 25% of the husband’s income. The aforesaid limit is applicable in case of monthly payout. (Kalyan Dey Chowdhury VS Rita Dey Chowdhury). Let’s look at some cases to understand the approach of the Court in these cases.
|Name of the Case
|Occupation of the Wife
|Salary earned by the wife
|Occupation of the Husband
|Salary earned by the husband
|Maintenance to be paid by the husband (on a permanent basis)
|Kalyan Dey Chowdhury V Rita Dey Chowdhury
|Beautician and teacher
|Rs.30,000/- per month
|Posted at Malda Medical College, Malda, West Bengal.
|INR 63,842/- per month [February 2015]
INR 95,527/- per month [February 2016].
|INR 20,000 per month (previously it was INR 23,000 per month. However, the same was reduced as the wife had remarried at the time the Supreme Court was hearing this matter).
|Around 21% of the husband’s salary was paid to the ex-wife as maintenance.
|Smt. Nidhi V Shri Nishant Dubey
|Physiotherapist. Running a Clinic.
|Not discussed in the judgment
|Rs.6.4 Lacs per annum (Rs.53,333/- per month)
|One time lifetime maintenance of Rs.10,00,000/- (Ten Lacs).
|Decision of the Hyderabad High Court
|INR 20,000/- per month
|Making a living by taking tuitions and also did not own any property.
|No maintenance was required to be paid to the wife.
What sort of evidence should a woman use to prove that the required factors are present in her case?
- Generally, the wife cannot get more than 20-25% of her husband’s income as alimony. In order to get this amount, the wife has to prove that she is not able to maintain herself. For the same, the wife can submit the details of her monthly expenses and sources of income & property (if any). The difference between the former and the later can help her prove that she is not able to maintain herself.
- The wife has to give the proof of the husband’s income and can provide his photocopied income tax returns to show that her husband earns a decent amount of salary and he earns more than sufficient to give her alimony. She can also take advantage of salary slips and bank account statements. Testimony of the colleagues of the husband can also be helpful. In case the wife does not have access to the documents, then she can also file RTI/s (if applicable).
- If the husband is running a business, then a copy of the balance sheet and profit and loss account can also be submitted to show the sound financial health of the husband.
- In case, she is illiterate and educationally not sound then she has to show it through the evidence. If she is already 10th passed then she has to show her mark sheet and other high school certificates.
- In case she also has dependants then she has to prove to the court that her dependants (for example: her parents, children) are also unable to maintain themselves. If they require medication and are not well, then she is required to submit their medical reports and other relevant medical documents to the court as evidence.
- If the couple has a child and the child is living with the wife, then the child is entitled to get alimony until he becomes an adult. The wife can annex the birth certificate of the child along with her maintenance petition.
Can working wives claim maintenance?
Yes, working wives can claim maintenance. According to the courts, even if the wife is employed, she is entitled to the same status and standard of living which she used to enjoy at her matrimonial home.
If her income is not sufficient in maintaining that same standard of living which she used to enjoy at her matrimonial home, then she is entitled to get maintenance despite being a working woman. As per Courts, the wife gets deprived of many comforts after she leaves her matrimonial home. Sometimes she loses interest in her life due to stress and anxiety and dual responsibility that comes with the divorce. The alimony from her husband can provide her some solace.
Another reason to give maintenance is that the wife’s financial burden gets increased substantially after the separation. Prior to separation, she might be contributing partly towards her family responsibilities. However, post-separation/ divorce, the wife herself has to bear all the expenses. Her income may not be sufficient to bear all those expenses. On this count, the Courts have allowed granting of maintenance to the wives.
Additionally, if the child is in custody of the wife, then the woman would need money to take care of the proper needs of the child. Because the child also needs the same standard which he has enjoyed with his father or would have enjoyed if he stayed with the whole family.
What if the wife earns more than the husband?
In such cases, the wife is entitled to a lesser amount of maintenance provided her earnings are not sufficient for her maintenance.
For instance, in one case, the husband and wife, both were senior citizens. The husband was earning a sum of Rs.1700 per month through pension. On the other hand, the wife was earning Rs. 1800 per month through pension and rental income. The trial court ordered that the husband should pay Rs. 1000 per month as maintenance to the wife. However, the Bombay High Court reduced the same to Rs. 750 per month as the husband was earning less than the wife.
In what circumstances will the wife be asked to pay maintenance to husband?
After considering the income of the wife, the wife would be asked to pay interim maintenance to the husband.
- If the husband can prove that he has no independent income sufficient for his support and necessary expenses of the proceeding pending under the Hindu Marriage Act, 1955.
For instance, in one case, the court directed the wife to pay maintenance to the husband of Rs. 20,000/- per month, and Rs. 10,000/- as litigation expenses and also to provide Zen Car for the use of husband.
However, in another case, the court held that even if the husband is not earning anything, the wife is earning a decent sum as much as Rs.30,000 per month in the capacity of a teacher, that cannot be a valid ground to grant maintenance to husband. It is for the reason that the husband, being an able bodied person is in a position to maintain himself.
The wife can be asked to pay permanent (lifetime) maintenance to the husband under Section 25 of the Act of 1955 the husband after taking into account:
- the income and other property of the wife,
- the income and other property of the husband,
- the conduct of the parties, and
- other circumstances of the case.
How to calculate how much maintenance you may get or have to pay in your own case?
How much you may get or you may have to pay can be calculated in the following manner:
In case of the monthly payout:
Find out the salary of the earning spouse (suppose it is ‘X’). Calculate 20% and 25% of X which is .20X and .25X. You may get / pay an amount somewhere between .20X and .25X as maintenance.
In case of lump sum alimony, calculate 1/3rd and 1/5th of the gross earnings of the spouse (suppose it is ‘100X’). Here, you may get an amount between 33X and 20X as maintenance.
How long will it take to get the order of maintenance?
In case of interim maintenance, it takes around 15 days to two (2) months. In case of permanent maintenance, it can take around five months to one year (approximately).
Please note that the above mentioned time period has not been provided in any law. Based on practice, it has been written. The time period is likely to be extended if the order is challenged in the subsequent proceedings.
On what grounds can the application for maintenance be rejected?
- If the husband can prove that he is not working and he is not able to maintain himself.
In one instance, the husband took the plea that he was mentally ill and was not in a position to maintain even himself. The Court held that such a plea could have been allowed if this objection would have been taken before passing of the order of maintenance along with the relevant medical certificate or evidence. Evidence plays a very crucial role to prove the aforesaid plea.
- If the wife has made vague statements regarding the income of the husband and her own income without any evidence in support of her submissions, then the application for maintenance is likely to be rejected.
One such example being a case where the wife, in her application claiming maintenance, did not place any material explanation as to what is the income of the husband. In addition to this, she, herself, was a salaried lady. In the absence of any material on record, the Court rejected the application for maintenance.
- If the wife has not disputed/controverted the statements made in the reply of the husband regarding the income of both parties, then also her application for maintenance is likely to be rejected.
For instance, in one case, the husband in his reply stated that the wife was engaged in a business along with her brothers and has borrowed a loan from a nationalized bank. He also stated that his income was only Rs. 1800/- per month. None of these statements was controverted by the wife (applicant). On account of this, her application for maintenance was rejected.
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