This article is written by Manya Manjari, a student at the Indian Institute of Management, Rohtak. Divorce is the process by which married couples can part ways and be separated. This article will discuss one of the most important aspects of divorce, which is alimony.
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India ranks lowest on the global divorce rate indexes. “The divorce rate in India is lower than 1%” as per reports by the BBC. If a person wants to terminate their marriage, they have a legal right to do so and can also request alimony from their spouses. In India, there are five major laws that govern alimony, which include the Hindu Marriage Act of 1955, the Muslim Personal Law, the Indian Divorce Act, 1869, the Parsi Marriage and Divorce Act of 1936, and the Special Marriage Act of 1955.
Divorce is the legal process that provides a formal ending to a marriage. The stigma associated with divorce, worries about family reputation, and cultural beliefs frequently influence factors in divorce. However, there is a progressive change in the attitude of society towards more acceptance and support for those who file for divorce to exit unsatisfactory or abusive unions. There is a rising awareness and understanding that divorce may be necessary in some situations, but orthodox and conservative beliefs continue to rule in many parts of India.
Alimony comes from the Latin word “Alimonia”, meaning sustenance. The monetary support given by one spouse to the other following a divorce is referred to as divorce alimony. It is meant to make the adjustment to single life more accessible and assist the financially dependent spouse in maintaining a respectable standard of living. As agreed upon by the separating spouse or established by the court, alimony is often given every month in the form of lump sum payments or recurring installments.
For instance, when one spouse earns much more than the other or when one spouse has given up their profession or education for the sake of the marriage or family, divorce alimony is meant to correct any financial imbalances that may exist between the couples. Alimony is of two types; Pendente lite, also known as interim or temporary alimony. This alimony has its reference in section 24 of the HIndu Marriage Act 1955. It is awarded during the divorce process and is intended to sustain the financially dependent spouse until the divorce is finalised. The temporary alimony is intended to keep things as they are and meet pressing financial requirements.
Section 25 of the Hindu Marriage Act 1955 mentions the long-term or permanent alimony, which may be granted when the court finds that one spouse needs continued financial support after the divorce is finalised. It is typically given when there is a large gap in the spouses’ earning potential or financial resources and the dependent spouse requires financial support to maintain the same standard of living as they did during the marriage.
Traditionally, wives who were dependent for money on their husbands received the majority of alimony payments. However, the situation has changed, and now, based on their specific situations, both men and women can ask for alimony. The primary determinants of alimony eligibility are the seeking spouse’s financial need and the paying spouse’s financial capacity. The length of the marriage, income inequality, financial necessity, ability to earn, employability, age, contributions to the marriage, and child custody and support are some of the characteristics that might affect alimony payments.
However, one of the major points of concern is that no marriage or divorce act other than the Hindu Personal laws, has provisions for the maintenance of the husband. Not even the Special Marriage Act, which is secular, gives the husband the right to claim maintenance.
The amount of alimony is not predetermined by law and may be expressed as a fixed sum per week or month. There are two types of alimony. Temporary alimony is payable for a set amount of time or until one of the parties passes away, whichever occurs first. Many variables, including the length of the marriage and the financial situation of both parties after the divorce, determine it.
Permanent alimony, on the other hand, is a continuing debt that lasts until the beneficiary remarries or passes away. Even though the monthly payments seem manageable, over time they can add up to become one of the biggest financial commitments.
Under Hindu personal laws, alimony is governed primarily by the Hindu Marriage Act, 1955. Section 24 of the Hindu Marriage Act does not include a specific formula for calculating interim maintenance. Interim maintenance can be claimed at the end of the dispute in the form of alimony as well. However, the following considerations affect the quantity of such maintenance:
The Bombay High Court decided that Section 24 of the Hindu Marriage Act, 1955, deals with finding a reasonable sum for interim maintenance in the case of Dinesh Mehta v. Usha Mehta (1978). Consequently, determining a reasonable amount requires establishing a compromise between many conflicting claims.
In the case of State of Jharkhand v. Sandeep Kumar (2004), it was held that no distinction has been made under Section 24 of the Act regarding a wife’s right to maintenance preferred under Section 12 (voidable marriages) or Section 13 (divorce) of the Act about maintenance pendente lite and expenses of the proceeding.
In the case of Manokaran v. Devaki, AIR (2003), it was held that the wife can request maintenance pendente lite at any time while the divorce is still pending if she can prove that she does not have enough of a separate source of income to maintain herself.
If the husband can demonstrate that he has no independent source of income, he is also entitled to maintenance pendente lite under Section 24. However, the spouse must persuade the court that he is unable to work and support himself because of a physical or mental condition.
According to Kanchan v. Kamalendra (1993), it was decided that the husband could not be allowed any maintenance because he was physically healthy and did not suffer from a mental illness, and the only reason he was claiming the amount was to discourage the wife from taking a divorce.
Within the scope of Section 25 of the Hindu Marriage Act, permanent alimony or maintenance is mentioned. The provision states that the court has the power to compel the respondent (either the husband or the wife) to provide for the applicant’s maintenance and support for a period that does not exceed the applicant’s lifetime. To decide a fair amount, the court considers various elements, including the income and assets of both parties, their behaviour, and other pertinent facts. If necessary, a charge on the respondent’s real estate could be used to ensure the payment.
After the court has issued an order, if either party’s circumstances change, the court may, at either party’s request, justly modify, vary, or revoke the order.
The court may, upon the request of the other party, modify, vary, or rescind the order in a just manner if the party who was awarded maintenance under this section remarries, or, in the case of the wife, does not remain chaste, or, in the case of the husband, engages in sexual activity with another woman outside of marriage.
Although the enactment’s Section 25 does not specifically refer to “permanent alimony,” the name clarifies that it is intended to address the idea of permanent alimony. Since Hindus in India did not have a divorce law, the idea of “permanent alimony” is not indigenous to our nation. However, the concept of “permanent alimony” was taken from English law when the Hindu Marriage Act 1955 was drafted, which included provisions for divorce among Hindus.
In light of this, the provision for continuing alimony is truly essential for granting a judgement of judicial separation, divorce, or annulment of marriage, and this also seems to be the evident position from Section 25. The provision for permanent alimony is something that comes after the decree granting substantive relief and is incidental to it because Section 25 contemplates the making of a provision for it at the time of passing the decree or at any time afterwards.
The Hindu Maintenance and Adoption Act, 1955 also known as HAMA, also has a provision for permanent alimony. Section 18 of the HAMA gives the wife the power to claim financial support from her husband in the following cases:
According to Islamic law, a man must support his wife, any minor children, and any dependent relatives from whom he can inherit. The main purpose is to support persons who are unable to maintain themselves, which includes needs like food, clothing, shelter, and education. It is usual for Muslim spouses to provide their wives with kharcha-i-pandan, a special allowance. According to the Pollock and Mulla commentary on Muslim law, it alludes to the wife being reimbursed for the cost of a betel box, which she may do in court.
In accordance with Muslim law, a husband is always obligated to provide for his wife, regardless of whether they have made any formal agreements to this effect. Unless the marriage is null or otherwise irregular, the requirement of maintenance or alimony is present.
Muslim women can claim alimony under two Acts which are- the Muslim Women (Protection of Rights on Divorce) Act, 1986 and Code of Criminal Procedure 1973. The provisions for alimony under CrPC are the same for everyone, regardless of religion.
Section 3 and Section 4 talk about the alimony provisions.
A divorced Muslim woman is entitled to a reasonable and fair maintenance payment from her ex-husband under Section 3 of the Protection of Muslim Women (Rights on Divorce) Act, 1986. An appropriate amount of mahr or dower, the sum decided upon at the time of marriage or thereafter defined in the marriage contract, is included in this clause. The maintenance payment may also cover any assets or properties given to the woman during the marriage.
A divorced Muslim woman is entitled to a monthly payment known as a “maintenance allowance” for support and maintenance throughout the period of iddat, which is the waiting period following divorce, according to Section 4 of the Act. According to the Act’s terms, the former husband pays the maintenance allowance.
These regulations are designed to make sure that Muslim women who have recently divorced from their spouses receive maintenance and financial support from them. It acknowledges women’s right to fair and appropriate alimony, including the amount of dower and maintenance throughout the iddat term, to support themselves after a divorce. By introducing legal protections for Muslim women’s rights in divorce situations, the Act seeks to protect and support them.
The most landmark case in regards to alimony provisions for Muslim women is Daniel Latifi v. Union of India. A writ petition challenging the constitutionality of the Muslim Women (Protection of Rights on Divorce) Act, 1986, was filed under Article 32 of the Constitution, and the petitions were combined into a Public Interest Litigation (PIL). The court made the following observations:
A Muslim woman can lose her right to maintenance under these conditions.
It should be kept in mind that the wife must be faithful, follow his reasonable instructions, and perform her married duties for the husband to be obligated under Muslim law to provide for his wife. In Muslim law, the husband is required to support his wife regardless of her earning potential or other circumstances, in contrast to other religious laws and actions where only dependent women are qualified for the right to maintenance.
Under Muslim law, men do not have a specific claim to maintenance, they can claim maintenance only under certain circumstances that are decided by the court.
Indian Divorce Act,1869, people professing Christianity can claim alimony. Chapter IX of the Act talks about the alimony provisions. Section 36 of the provision gives the court the authority to decree child support and custody. Its main points are as follows:
Section 37 deals with the ability of the court to impose alimony and maintenance orders that last a lifetime. The main points of the section are as follows:
These sections are not gender neutral and focus mainly on women. The courts may make exceptions based on the case basis to provide maintenance for men.
The Parsi Marriage and Divorce Act, 1936 gives Parsi people the choice to ask their spouse for maintenance through both legal and illegal means. A wife has the right to request both alimony pendente lite (temporary alimony while marital litigation is pending) and permanent alimony under the Parsi Marriage and Divorce Act. During the course of the case, the court may order alimony up to one-fifth of the husband’s net income. The ability of the spouse to pay, the assets of the partner, the behaviour of the parties, and other pertinent variables are all taken into account by the court when calculating the permanent maintenance amount.
Pendente lite (interim) and permanent maintenance are covered in Section 39 and Section 40 of the Parsi Marriage and Divorce Act, respectively. The Hindu Marriage Act’s Section 24 and these sections are comparable. According to Section 40, the court may order the defendant to provide a one-time or recurring payment for the plaintiff’s maintenance and support. The defendant’s income and assets, the plaintiff’s assets, the parties’ conduct, and other pertinent considerations are taken into account by the court while determining the suitable sum. If required, the court may impose a charge on the defendant’s personal or real property to secure payment.
Any maintenance order may be changed, altered, or revoked by the court, depending on the situation.
The Special Marriage Act is a secular act that allows people of any religion to get married. It also has provisions for alimony and maintenance. Alimony pendente lite, or interim support while the case is pending, is a topic covered under Section 36 of the Special Marriage Act. The wife might apply to the court if the district court finds that she does not earn enough money on her own to maintain herself and pay for the costs of the case. The husband will be required to pay the costs of the case as well as a fair weekly or monthly sum to the wife during the proceedings, with the court considering the husband’s income. The goal is to guarantee the wife has sufficient financial backing throughout the legal process.
Section 37 of the Act concerns alimony and maintenance that is paid permanently. The husband may be ordered by the court, which has jurisdiction under this Act, to provide for the wife’s maintenance and support. This can take the form of a claim placed against the assets of the husband, a one-time payment, or a series of payments that won’t last longer than the wife’s lifetime. To calculate a fair amount, the court considers a number of variables, including the wife’s assets, the husband’s assets and financial capacity, their respective conduct, and other pertinent facts.
The district court may, upon the request of either party, modify, vary, or revoke the order if there is a change in the circumstances of either party and the court has issued an order. If the financial or personal circumstances significantly change, this provision allows for amendments to be made.
Additionally, the court may, like the provisions of any other personal law, alter, vary, or revoke any orders imposed in favour of the wife at the husband’s request if it discovers that she has remarried or is not living chastely. According to this clause, the husband may ask the court to change or revoke the maintenance order under specific circumstances. Although one of the major points of concern in the Act is that, despite being such a progressive Act in nature, it has provisions only for the maintenance of the wife and not for the husband.
The Code of Criminal Procedure, 1973 (CrPC), lays down provisions for maintenance. The provisions of the CrPC apply to all communities in India, making them essentially secular, secure, and inclusive in nature. They also cover all castes, creeds, and religious beliefs. The provisions of Section 125 of the CrPC are enforceable regardless of the personal law employed to direct and control the respective persons concerned. The processes outlined in Section 125 of the CrPC, however, are of a summary character and apply to all people without respect to caste, creed, or religion. The particular personal laws of members of other religions permit maintenance requests, and the procedures governed by these laws are civil.
A wife after divorce has legal rights that protect her best interests and guarantee her financial stability.
A couple can avoid alimony payments by applying for the following:
In this case, the husband and wife were married in May 1945 but later fell out of love. A daughter was born in August of 1946. The wife requested maintenance in 1951 via registered letter, and in 1954 she filed a maintenance lawsuit. The husband’s salary was about Rs. 700 per month, and he also made extra money from his private practice.
According to Section 23(2) of the Hindu Adoptions and Maintenance Act, 1956, the High Court determined that the wife should receive Rs. 250 in monthly maintenance. The income-tax authorities set a cap on this sum at 25% of the wife’s total income. Maintenance for the girl was established at Rs. 150 per month. The Supreme Court determined that the wife’s money from her father should be treated as a gift and not income when determining maintenance. There was no proof that the wife received any inheritance from her father. The support amount was then decided by the Court. When determining the 25% cap on the husband’s salary, deductions for income tax, the mandatory provident fund, and other costs associated with the husband’s professional car maintenance were allowed.
In this case, Shah Bano Begum and Mohd. Ahmed Khan were wed in 1932, and the couple had five kids together. Mohd. Ahmed Khan married a younger woman for a second time after a few years of marriage. Shah Bano Begum and her kids were evicted from their matrimonial house in 1975. Initially promising to pay her Rs. 200 per month in maintenance, Mohd. Ahmed Khan stopped doing so in 1978. Shah Bano Begum responded by filing a petition in Indore under Section 125 of the Criminal Procedure Code (Cr.PC), asking for maintenance of Rs. 500 every month. Mohd. Ahmed Khan divorced Shah Bano Begum by saying triple talaq throughout the proceedings. She was given a Rs. 25 maintenance payment each month by the Indore Magistrate. In 1980, Shah Bano Begum filed a petition with the High Court of Madhya Pradesh asking for an increase in the maintenance payment to Rs. 179 per month. Although the Respondent, Mohd. Ahmed Khan, filed a special leave plea in the Supreme Court opposing the ruling after the High Court ruled in her favour.
The Supreme Court denied Mohd. Ahmed Khan’s request for a special leave of absence. The five-judge panel ruled that when personal law and Section 125 of the Criminal Procedure Code clash, the latter shall take precedence. The payment of maintenance to a divorced woman who cannot support herself, however, was not in dispute in the current case. The Court emphasised that it is against humanity to only provide maintenance during the Iddat period (the waiting time following a divorce) and not beyond that point. This is particularly true for a woman who is unable to support herself. It was decided that it was immoral and wrong for a husband to leave his wife or a divorced woman unsupported. The court further decided that a husband’s commitment to support his wife cannot be waived simply by paying the meher (dowry). If not, the husband’s duty to pay maintenance remains in effect. This proves to be the most important decision for maintenance provision in India.
In this case, the revisionist Rajesh has appealed a court decision that sentenced him to 12 months of imprisonment for failing to pay his wife Rs. 91,000 in arrears of maintenance. The revision petitioner claims that because the legislation only permits a maximum of one month of imprisonment, the order should be reversed. The respondents believed that the revisionist should serve one month in civil prison for each month of default. Not to absolve one of responsibility, but to enforce payment, was reiterated as the goal of imprisonment. Each month of non-payment might result in a sentence from the court, with the obligation lasting until the debt is paid in full.
The legal issue raised was whether imprisonment should be given to the applicant just on the grounds of failure to pay maintenance.
It was held that “if the husband fails to pay maintenance, then the defaulter, i.e., the husband, has to suffer imprisonment on each default to pay the maintenance. The first and foremost duty of the husband is to maintain the wife and the child. He may beg and borrow.” This judgement was much criticised but it set forth a definite precedent that the defaulter must pay maintenance if they have people dependent on it.
Court rulings and other actions have restored the rights of women, but their full efficacy won’t be attained unless fundamental attitudes are changed. Despite the fact that maintenance should benefit both husbands and wives equally for the sake of society as a whole, many women continue to be denied their legal maintenance entitlements. To produce a noteworthy and fruitful result, it is essential to ensure that the law is implemented correctly and following the legal criteria.
The phrases alimony and maintenance are mentioned in almost all personal laws. While maintenance may be paid monthly, annually, or in a series of instalments determined by the court, alimony is a one-time payment delivered to either the husband or wife. Furthermore, alimony is typically mentioned when both parties agree to divorce. When one partner files for divorce and the other contests it in court, maintenance is awarded.
The amount of alimony received is not taxable as a capital gain. However, any interest earned on investments made with the money received for alimony is subject to taxation.
Yes, alimony can also be claimed under the Domestic Violence Act 2005 and several other laws, but the provisions mentioned above specifically talk about alimony following separation and divorce.
Yes, the husband is liable to pay alimony if the wife is earning. However, depending on the facts and circumstances of the cases, this is subject to change depending on various factors like The length of the marriage, the financial condition and behaviour of both spouses, the capability of the spouse requesting maintenance to earn it, and the education and qualifications of the wife.
No, the husband has no liability to pay the alimony to his wife after she remarries; however, if there are children that belong to him, he will be made liable to pay for the alimony to support that child in education throughout until they become adults, and in the case of a female child, until her marriage.
If the husband refuses to pay the alimony, he will be given a deadline by which he must make up for the missed payments. Additionally, if they continue to default on their payments, they may be imprisoned for the period of time that is typically set by the court.
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