Alimony: Indian Law

UNDERSTANDING ALIMONY

Marriage in India has been considered a holy bond between souls. However, sometimes married couples no longer want to be with each other. In such a course of time, divorce comes into action. Sometimes divorce proceedings may take an ugly turn. There are times when the husband does not want to provide for the wife or the kids for such unforeseen events, the concept of alimony was generated. Alimony, also known as spousal financial support that is extended by one spouse to the other after/with divorce either in accordance with a settlement or as a result of a court’s decision. In layman’s terms, alimony and maintenance is maintenance granted to a spouse. The assumption underlying maintenance and alimony is that the husband has to maintain his wife, not merely during the period she remains his wife but also after divorce, so long as she does not remarry.

According to Paras Diwan in his book Modern Hindu Law, the Corpus Juris defines alimony as “the allowance required by law to be made to a wife, out of her husband’s estate for her support either during the matrimonial suit or on its termination, where the fact of the marriage is established and she proves herself entitled to separate maintenance.  Like maintenance, alimony connotes the existence of a duty on the part of a person to provide for the need of another person or persons who are or are in one way or the other related to, or dependent upon him.”

As in layman’s terms both alimony and maintenance can be interchangeably used. But the legal applicability is different. The mode of payment for maintenance is only paid in form of cash or any other kind of payment method and the husband cannot pay maintenance to the wife in form of property. While alimony may be paid to the spouse in lump sum as cash or any other kind of payment method, as well as in form of the property after the divorce is finalized. Alimony is a one-time payment and is only paid after the divorce is finalized. Maintenance can be interim or permanent.

HINDU LAW

As we know there are different communities in India and the grounds on which they seek alimony is different. Under the Hindu Marriage Act, alimony and maintenance can be claimed by either party. In English law, the wife is required to provide maintenance to the husband only if the marriage is dissolved on the ground of the latter’s insanity. The grounds to seek divorce under the Hindu Marriage act are adultery, cruelty, desertion, conversion, insanity, leprosy, venereal diseases, renunciation, the presumption of death, etc. Alimony for Hindus, Sikhs, Buddhist and Jains it is governed by the Hindu Marriage Act 1995, Section 24 of the act states that both the wife and the husband are entitled to claim maintenance from their spouse. While permanent maintenance and alimony are covered under Section 25 of the Hindu Marriage Act. Section 25 is welfare legislation. The right to maintenance under Section 25 would include the right to the residence. Maintenance would include the provision of residence. The wife cannot be denied right of residence in the matrimonial home.”

INCOME

Section 24  of the Hindu Marriage Act uses the word “income”, while Section 25 uses the words “income and other property”. The distinction between the expressions came for consideration before High Courts. The Court said that the word in Section 24 would not include other property or assets, thus in fixing the amount of maintenance pendente lite, the court will have regard only to the income of the applicant and not her or his assets or property not yielding any income. When the wife makes an application for maintenance, the onus of disclosing his income is on the husband. The section uses words that the applicant has no independent means to support himself or herself. The word “support” does not mean bare existence, it means the claimant spouse should be in as much comfort as the other spouse.

The parties are free to contract out the maintenance and alimony or they may agree to any sum of maintenance and alimony: if the court finds them reasonable, it will give effect to them.

CHRISTIAN & PARSI LAW

For Christian women seeking alimony after divorce, she is governed under section 36 of the Indian Divorce Act, 1969, a woman can claim her right to alimony and the husband will be entitled to pay the alimony, if directed by the Court. Parsis can seek for divorce under the Parsi Marriage and Divorce Act, 1936, section 41 says, in all cases in which the Court shall make any decree or order for alimony it may direct the same to be paid either to the wife herself or to any trustee on her behalf to be approved by the Court.

MUSLIM LAW

Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 states that “a reasonable and fair provision and maintenance to be made and paid to her within the iddah period by her former husband.’’ The Court held this provision means that reasonable and fair provision and maintenance is not limited to the iddat period. It extends for the entire life of the divorced wife until she remarries. In the controversial case of, Mohd. Ahmed Khan vs. Shah Bano Begum And Ors 1985 AIR 945, commonly referred to as the Shah Bano case was a controversial maintenance lawsuit in India, in which the Supreme Court delivered a judgment favouring maintenance given to an aggrieved divorced Muslim woman.

Another case dealing with divorce and alimony Neeraj Kumar Sharma & Ors v. State &Anr 2007 (3) MPHT 527 in which after a mutual divorce between parties Neeraj Kumar and Nisha Sharma the court said that “It will be open to Ms Nisha Sharma to move the appropriate court/authorities to ask for her maintenance till she remarriages.”

EXCEPTIONS

Alimony is a provision that comes into effect upon the dissolution of the marriage or judicial separation. Here the amount fixed by the court is required to be paid either as a lump sum amount or as a fixed periodic payment. These payments stop upon the death of either of the spouse or a date given by the judge. Under the Hindu Marriage Act 1955, both husband and wife can ask for it. “But, it’s usually the woman who gets the maintenance from the husband. But there have been cases where the court has ordered the wife to pay maintenance. For instance, in case of husband’s physical disability that prevents him from earning. As in the case of Nivya VM v. Shivaprasad N.K.[OP (FC) No. 26 of 2015 (R)] where it was found that a husband can claim alimony only under cases where he is found to have incapability or if he is handicapped. The Kerala High Court dismissed the petition. According to law, a husband getting alimony from his former wife is only stated under Hindu Marriage Act 1955 the Christian, Parsi or the Muslim laws do not accept it.

CALCULATIONS

There is no fixed formula or hard and fast rule for the calculation of alimony that the husband needs to provide to his wife. The alimony can be provided as a periodical or monthly payment, or as a one-time payment in the form of a lump-sum amount.  In Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee Nandy (civil appeal no.5369 of 2017), the bench of Justices R Banumathi and M M Santanagoudar found that a man with the monthly income of 95,527 a month, had to set aside 20,000 a month for his former wife and son. Although the Calcutta High Court first ordered for 23,000 the man challenged it and the Supreme Court said there was nothing amiss in the high court order, it reduced the amount by Rs 3,000 on the ground that the man had remarried and hence needed to provide for his new family.

If the woman is earning and there is a substantial difference between her net worth and her husband’s net worth, she still may be granted alimony for the same living standards as her husband’s. The court can even ask the women to pay alimony to her former husband in special circumstances. Alimony comes as a support to all those women generally who are not that financially independent to look after themselves and their children. It helps the lady in marriage to know her rights and fight for herself. The objective of granting interim / permanent alimony is to ensure that the dependant spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded.

The factors which would weigh with the Court inter alia are the status of the parties; reasonable needs of the wife and dependant children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child-rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife. Parties may lead oral and documentary evidence with respect to income, expenditure, standard of living, etc. before the concerned Court, for fixing the permanent alimony payable to the spouse.

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