Alimony in Mutual or Contested Divorce

Introduction

In India, marriage is considered a vital part of an individual social life. However, unfortunately, sometimes marriage doesn’t last long for various reasons. In such a situation, if couples find it hard to live together, they can choose the option of Divorce. Earlier, Divorce was not very common in Indian society. However, as the new generation is getting more independent in all aspects of life, they are breaking the taboo surrounding Divorce, and as a result of that Divorce is becoming quite common in our country. While Divorce is an unfortunate situation to be in, it is important that the parties involved understand the Divorce process and laws governing divorce, so that each of them can protect the rights outlined for husband and wife under Indian Laws. Indian constitution is very well structured and clearly outlines laws governing divorce, alimony, child custody, and maintenance to ensure every individual’s legal and fundamental rights are protected. While are multiple facets to a divorce, this article is mainly focused on Alimony in a mutual or contested divorce. You can find other articles in our blog section that talk about child custody, the divorce process, divorce papers, etc. 

What is the meaning of Alimony?

In layman’s terms, Alimony can be explained as a monetary compensation given in divorce to one of the spouses who can’t maintain themselves. The word Alimony has been derived from the Latin word ‘Alimonia,’ which means ‘nourishment or sustenance’. Hence the meaning of alimony is to sustenance for a person – in a marriage that person who be your wife or in certain exceptional circumstances, it can be the husband also. In Indian society, many married women are financially dependent on their respective husbands, and Alimony is provided upon Divorce. The rationale behind such regulation is to prevent women from living in an abusive environment because of being financially dependent. However, before getting into further details, let us first understand the difference between Alimony and Maintenance because very often people use these terms interchangeably and often get confused between them.

What is the difference between Alimony and Maintenance?

Meaning of Alimony: In a case where a spouse is unable to financially maintain themselves and hence one-time payment is made by the other spouse, known as Alimony, which is given only after the Divorce. It is paid as a lump sum in cash or in the form of property. Both husband and wife can determine the amount.

Meaning of Maintenance: Whereas periodic allowance paid by the husband to the wife in fixed intervals such as monthly/annually or in any other fixed intervals is known as Maintenance. It can be paid in cash but not in property and a court of law can determine the amount. It is important to note that maintenance can be claimed even without divorce

Factors impacting the amount of Alimony

Now that we understand what is the difference between Alimony and Maintenance, let us also understand what are the various factors based on which the amount of alimony is decided:

  1. Mutual Divorce:  Before getting into the topic, it’s essential to understand Mutual Divorce or Contested Divorce? As the name suggests, Mutual Divorce is when both the wife and husband file a joint petition for Divorce, while on the contrary one-sided divorce petition filed by one of the spouses is a Contested Divorce. In Mutual divorce, both parties can mutually agree on the amount of alimony or maintenance. If both parties cannot reach an agreement, then they can approach the court for a mediator to help them settle on alimony or maintenance amount.
  2. Contested Divorce: If the divorce is contested, then the court can decide the amount of alimony or maintenance based on the following factors:
    • Period of Marriage: The longer the couple has been married, the more significant the amount of spousal support will be awarded. If the marriage has lasted for more than 10 years, usually alimony will be granted lifelong.
    • Age and Health of the spouse: If either of the spouses has poor health and suffers from any form of disability, the other spouse must provide maintenance and the spouse with a disability is entitled to receive a large amount as alimony. If the wife is young, the court will award alimony or maintenance for a shorter period, assuming the wife can become financially independent.
    • Earning and other assets of the spouse who will be providing Alimony: the earnings or economic condition of the individual who is to provide the alimony is also one of the critical considerations along with property owned by them
    • Child Custody: The spouse that maintains child custody would be entitled to either receiving a more significant amount while the child is a minor or pay lesser maintenance
    • Husband’s Liabilities: If the husband has dependent old parents that will be taken into consideration by the court while providing for alimony. Income tax, EMIs, loan repayments, and other mandatory deductions are also considered by the court while deciding the amount
    • Wife earning capacity: If the wife is employed/working and has independent sources of income, this may also be considered by the court while deciding alimony.

How much Alimony can you get?

There is no specific law prescribing the slab for determining the percentage of Alimony. The judgment passed by the bench of Justices R Banumathi and M M Santanagoudar of the Supreme Court set a benchmark that the amount of Alimony shall not exceed 25% of the husband’s income. This amount of 25% is the maximum amount, and as each case is different, so what will be the amount of Alimony in your case is subject to legal advice from a divorce lawyer. No such benchmark exists for a one-time lump sum amount, even though it ranges from 1/5th to 1/3rd of the husband’s total earnings, it is decided by the court based on the various factors outlined above. 

Types of Alimony

In the context of divorce, people often think that any alimony and maintenance will only be paid after the court has given its final judgment, and can take a long time. Many times, women are unsure of approaching court because they feel that they will not be able for themselves or their children during the process of divorce. Hence it is important to understand that Indian Laws have provisions to provide interim relief to the spouse even during the court proceedings are going on. In essence, there are two types of Alimony and Maintenance that one should be aware of: 

  • Alimony Pendente Lite
  • Permanent Alimony and Maintenance

Meaning of Alimony Pendente Lite

Simply put, Alimony Pendent Lite is a payment made by one spouse to another when Divorce is pending. The objective behind this alimony is to provide aid to the spouse during the divorce process so that the spouse can maintain their standard of life. It is also known as Interim or temporary Maintenance. It is payable from the date the petition is filed till the time the final order is passed. It is important to note that Interim maintenance can also include the fees of the lawyer, sums to meet up stamp charges, clerical charges, travel expenses, etc. The court cannot refuse to grant interim maintenance even on the ground that the applicant is unlikely to succeed in the dispute.  Also, interim maintenance is not limited to the Wife but can even include child support as held by Supreme Court in In Jasbir Kaur Sehgal v. District Judge, Dehradun, AIR 1997 SC 3397 case.

Meaning of Permanent Alimony and Maintenance 

Once the wife obtains a decree of judicial separation or dissolution of marriage, the husband may get ordered by the Court to pay the wife any particular amount decided by the Court either a//s a lump sum payment or periodically. As mentioned earlier, a lumpsum amount can be called Alimony while periodic payment can be classified as maintenance – both are essential tools to provide financial support in case of divorce.

Alimony Laws in India

Considering the diversity of communities in India, each community has its Laws, and hence grounds for Divorce and Alimony are different for every community depending upon the religion of the husband and the wife. If both of them are Jains, Sikhs, Hindus, and Buddhists, their marriage and hence the divorce would be governed by “The Hindu Marriage Act, 1955”. The “Dissolution of Muslim Marriage Act, 1939” governs the divorce laws of Muslims, and the “Indian Divorce Act, 1936” governs the Christians and the Parsis by the “Parsi Marriage and Divorce Act, 1936”. All inter-caste marriages are governed by the “Special Marriages Act, 1954”. Hence, one should refer to the specific law when looking for information related to any aspect of marriage or divorce.

Alimony under Hindu Marriage Act and Special Marriage Act

Under Section 25 of the Hindu Marriage Act, 1955, both husband and wife can claim maintenance. If both parties decide to get a mutual divorce (both agree to the divorce), then the Alimony is to be determined by either of the parties by an agreement between them. If it is a contested divorce (neither of the party is not agreeing to divorce), then alimony is decided by the court based depending on the factors outlined earlier in this article. 

As per the Hindu Adoption and Maintenance Act, a Hindu wife, whether married before or after the commencement of the Act, is entitled to Maintenance by her husband for her lifetime. As per Hindu Marriage Act, 1955 wife can live separately from her husband without relinquishing her right to Maintenance under the following circumstances:

  1. If the husband has deserted his wife
  2. He has oppressed her so that she thinks living with her husband is harmful
  3. If he has another wife living
  4. He ceased to be a Hindu
  5. If he keeps his mistress in the same house where his wife is living
  6. Suffering from a lethal form of leprosy

However, this right is not absolute as per S.18(3) of the Hindu Adoption and Maintenance Act, 1956; in some instances, a wife cannot claim separate residence and maintenance from her husband:

  1. If she is unchaste.
  2. Where the wife ceases to be a Hindu

But S.18(3) does not say that an unchaste wife is not entitled to any maintenance from her husband; the section says that she cannot claim separate residence and Maintenance. Usually, the husband has to maintain the wife for her life, but if the wife remarries, he is not responsible for Maintenance.   

Alimony under Muslim Law

The maintenance rights of the divorced Muslim woman have been defined under

  • Muslim personal law
  • Section 125 Criminal Procedure Code 1973 and
  • The Muslim Women (Protection of Rights on Divorce) Act,1986

Muslim personal law

A husband is required by Muslim law to support his wife and family, and the term maintenance refers to the amount he is required to pay. Under Muslim Law, maintenance is referred to as nafaqa, which includes food, clothing, and lodging; the wife is entitled to maintenance from the husband even if she has the means to support herself. The amount of maintenance is not specified in any personal law. The court determines the quantum based on the husband and wife’s financial situation and any other relevant circumstances. A divorced wife can only claim maintenance from her ex-husband for the time she observes her Iddat. Iddat on divorce lasts three menstrual periods or, if pregnant until the child is delivered. As a result, the former husband’s liability is limited to the period of iddat and not beyond.

Section 125 Criminal Procedure Code 1973

In the landmark judgment of  Mohd. While passing the judgment, Ahmed Khan vs. Shah Bano Begum, the Supreme Court of India brought the Muslim women under the purview of Sec. 125 CrPC, entitled to get Alimony reasonable to sustain. The facts of the case were about the suffering of Shah Bano, who was thrown out of her matrimonial home by her husband at the age of 62 years. The husband, Ahmed Khan, a renowned lawyer, was ready to pay only INR 200 per month, which was agreed upon at the time of marriage as Mehr. Any sensible person can understand that this amount which was agreed upon in 1932 at the time of marriage, was entirely unreasonable in 1978 when the Divorce occurred. This was the story of several Muslim women forced to live a life of humiliation and vulnerability just because their husbands wished to divorce them.

 Therefore, no matter what the custom says or the amount of Mehr has been decided, Muslim women can approach the Court with the help of a divorce consultant. They can claim Alimony and Maintenance from the husband under Sec. 125 of the Criminal Procedure Code reasonably supports a life with dignity. 

The Muslim Women (Protection of Rights on Divorce) Act,1986

If a Muslim woman gets custody of the child, she can claim maintenance for the child, which the customs are silent about, rather than including it in the amount of Mehr. Post Shah Bano Case Government passed The Muslim Women (Protection of Rights on Divorce) Act, 1986.

There are specific provisions laid down in The Muslim Women(Protection of Rights on Divorce) Act, 1986, after the divorced wife is entitled to:

  1. During the Iddat period, a fair and reasonable amount should be paid to the wife.
  2. Any property or properties were given to her after or before the marriage. 
  3. An amount that is equal to the dowry given during the time of marriage. 

Alimony under Christian Law

The provisions for the Divorce of Christians are governed under Section 36 of the Indian Divorce Act, 1969. Providing financial support to the wife while the matrimonial suit is pending is the primary goal of this section. Permanent Alimony is dealt with under section 37 of the Indian Divorce Act, 1969. The husband has to pay a weekly or monthly sum to provide financial support to the wife as per the order of the Court. If the husband cannot provide financial support, the Court can temporarily suspend or discharge the order. There are some factors under s.37 which are taken into consideration:

  1. The behavior of the parties before or after the marriage.
  2. Wife’s possessions (if any)
  3. Source of husband’s earnings. 

Frequently Asked Questions (FAQs) on Alimony

Can a husband claim Alimony?

Under Hindu Marriage Act, 1955, a provision states that even a Hindu husband can claim Alimony if he has no means to earn or earns less money than his wife. While there is a provision in the law, there have been very few cases in which the husband has been given maintenance. 

Muslims, Christians, or Parsi do not provide provisions for husbands to claim maintenance from the wife.

Is Alimony linked to child support?

No, the alimony amount is not linked to child support. The father must provide separate Maintenance for his children’s needs. If a mother is also earning, she will have to provide for her children’s needs. 

Is the husband liable to pay maintenance even after the wife remarries?

If the wife remarries, the husband is relieved of his responsibility to provide for her and can stop paying maintenance after filing a petition in the court

If a husband’s financial condition changes, can he file to revision of the maintenance amount?

Yes, if the husband’s financial condition changes, such that he is unable to support his wife owing to a financial crisis or other adversity, and the wife is financially independent and earns a reasonable salary, the husband may ask the court to review the changed circumstances. The court has the authority to alter, change, or withdraw the order based on the facts, evidence, and circumstances at the time.

Is a widower eligible for Maintenance from in-laws?

The Nagpur bench of the Bombay High ruled that a wife is entitled to Maintenance from in-laws who own property in their son’s name even after her husband’s death. In addressing a petition for Maintenance, Justice Nitin W. Sambre, in a matter held that under section 19 of the Hindu Adoption and Maintenance Act, 1956, “the wife has every right to claim maintenance after the death of the husband from the estate inherited by her father-in-law.” However, a widowed daughter-in-law can only claim Maintenance from her father-in-law if she cannot support herself from her husband’s, father’s, mother’s, daughter’s, or son’s property.

Section 21 of the Hindu Adoption and Maintenance Act of 1956 also provides for the Maintenance of a widowed daughter-in-law. In the older Hindu Laws, there was debate about whether the widow had a right to Maintenance only if she lived with her deceased husband’s family. The Privy Council resolved this dispute in the case of Prithee Singh v. Raj Rani Koer. The Court held, “The only requirement is that she not leave her deceased husband’s house for unchaste and unreasonable reasons, and she has a right to maintenance only if she is not guilty of unchastity or any other disreputable deeds after leaving her deceased husband’s house.” Therefore, under the Hindu Adoption and Maintenance Act of 1956, a widow is not required to live with her deceased husband’s family, and her unchastity does not preclude her from claiming maintenance.

What is Streedhan?

  • Under Hindu Law Streedhan has been defined as what women receive throughout their lives. Streedhan includes all the gifts women receive before marriage, during the marriage, birth of the child, and widowhood, including property, be it movable or immovable.
  • It refers to the right to Hindu women’s wealth solely belonging to them.

This is the property owned entirely  by a woman; It means that a Hindu woman has complete control over her property.

Is Alimony Taxable in India?

There is no separate provision in the income tax act to deal with Alimony. If there is a lump sum payment made that amount will be treated as a capital receipt and provisions of the Income Tax Act, 1961 will not apply and is not taxable.

If there is recurring maintenance that is paid then it is considered as income that is taxable in the hands of the recipient.

Nevertheless, it needs to be noted that the person who makes the payment of alimony may not claim any sort of deduction against the same.

Landmark Judgements

  1. In the landmark case of Kamala & Ors. vs. Mohan Kumar, it was held by the Court that “When the parties live together as husband and wife, there is the presumption that they are legally married for the claim of Maintenance of wife under Section 125 Cr. PC. Unlike matrimonial proceedings where strict proof of marriage is essential, in the proceedings under section 125 Cr.PC, such strict proof is not necessary as it is summary in nature meant to prevent vagrancy” According to the bench’s above statement, strict proof of marriage is not required. Where the parties have been residing as husband and wife, it is assumed they are married. The family court’s maintenance order was upheld.
  2. In Ratan Lal vs. Lind Addl. Sessions Judge and ors held by the Allahabad High Court that no interference was required in the order issued by the lower Court. It also had that a delay in filing the petition could not be a compelling reason to deny Maintenance to the wife. Finally, it stated that “a wife’s right to claim Maintenance is a continuing one, and the legislature has taken care by not imposing any time limit for making an application under section 125 of Cr. PC.” As a result, the writ petition was dismissed.
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