Introduction
When discussing Divorce, the first thought that comes to either side is Alimony or Maintenance. The question for the Husband is how much I will be obligated to pay, and the question for the Wife is how much she will be obligated to pay. Alimony is a social obligation that every husband owes to his family. It is a question of self-esteem to maintain one’s family during a cordial relationship, but when the couple separates, it becomes a legal obligation/responsibility that the husband is bound to take care of.
In general, the terms Alimony and Maintenance cause confusion as to why there are two terms and what the obligations under these terms are. To clarify, alimony and maintenance are synonyms, and the names are used differently in different parts of the country. In the event of a divorce or judicial separation, alimony or maintenance is the financial support ordered or offered to a spouse (male or female). It should be noted that the provision only applies to parties whose marriage was legal and valid.
Also Read: What are the Parole and Furlough? What is difference Between Parole and Furlough ?
What is Alimony?
“Maintenance is provided with the goal of strengthening the poor and attaining social justice, or individual equality and dignity. It encapsulates soietal ideals”
Marriage is a social institution in which two souls unite to form a family. With the understanding of such social obligations, they are bound to perform certain duties and responsibilities, which do not end after divorce. When one of the spouses is financially dependent on the other (especially the wife), the spouse can seek maintenance from the husband. Alimony is not decided arbitrarily, but rather after careful consideration of various factors by the Hon’ble Judicial Officer before issuing the order.
What are the Different Types Of Alimony In India ?
The court orders the responsibility and amount of alimony based on the earnings and financial stability of the partners, not specifically the Husband who is liable for alimony, but any of them can be held responsible for paying the alimony to the other.
The alimony can be classified as given below:
- Recurring alimony
- Lump-sum alimony
- Rehabilitative alimony
- Reimbursement alimony
- Separation alimony
Recurring Alimony
Alimony that is paid on a regular basis by either party with time intervals is known as recurring alimony. Alimony can be paid weekly, monthly, quarterly, or semi-annually, as determined by the court or depending on the need of either party or the paying capacity of either party.
Lump-Sum Alimony
Lump-sum Alimony is a one-time payment made in full and final settlement of Alimony in the Hon’ble Court. Most of the time, it is a one-time payment only because it reduces litigation and removes the burden from the recipient on the Payer’s mischievous act to avoid future harassment. Payment can be made either electronically or by demand draught.
Rehabilitative Alimony
Alimony is typically paid by the higher-earning spouse to the lower or non-working spouse in order to financially empower the other partner. In such cases, the amount is not permanent and is paid until the spouse achieves financial stability by acquiring training or skill that enables him or her to earn a reasonable income. The tenure is decided, and the amount is paid for a set period of time at regular intervals. As a result, the court orders alimony during the learning or training period to assist the spouse and allow him or her to resume working.
Reimbursement Alimony
The purpose of this type of alimony is to reimburse the partner for the money spent on the spouse’s education or training. The court may order one party to repay the expenses borne by the spouse that resulted in increased earnings of the partner after evidence is presented and further post proved. The amount of alimony is not fixed and can be ordered based on the circumstances of the case..
Separation Alimony
Separation alimony occurs when the partners decide to live apart without or before divorce and obtain an alimony order. Alimony is paid as an interim settlement until the case is resolved.
What are the Deciding Factors For to Fix the Amount Of Alimony ?
Also Read: What Rights Husband Have in Divorce? Can Husband Claim Alimony?
Hon’ble Delhi High Court in the matter of “Bharat Hedge v Smt. Saroj Hegde” laid down the following factors to be considered for determining maintenance:
- Status of the parties.
- Reasonable wants of the claimant.
- The independent income and property of the claimant.
- The number of persons, the non-applicant has to maintain.
- The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home.
- Non-applicant’s liabilities, if any.
- Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.
- Payment capacity of the non-applicant.
- Some guess work is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.
- The non-applicant to defray the cost of litigation.
What are the Provisions in Acts About Maintainance ?
The Special Marriage Act, 1954 (“SMA”)
Section 36 of the Special Marriage Act states that a wife may seek pendente lite maintenance if she lacks sufficient independent income to support herself and cover legal expenses. During the pendency of the matrimonial proceedings, maintenance may be granted on a weekly or monthly basis. The Court would determine the quantum of maintenance based on the husband’s income and award whatever amount seemed reasonable.
Section 36 reads as:
“S.36. Alimony pendente lite.—Where in any proceeding under Chapter V or Chapter VI it appears to the district court that the wife has no independent income sufficient for her support and the necessary expenses of the proceeding, it may, on the application of the wife, order the husband to pay her the expenses of the proceeding, and weekly or monthly during the proceeding such sum as, having regard to the husband’s income, it may seem to the court to be reasonable.
The Hindu Marriage Act, 1955 (“HMA”)
The HMA is a comprehensive code that governs the rights, liabilities, and obligations that result from a marriage between two Hindus. Sections 24 and 25 provide for maintenance to a party who does not have an independent income sufficient to support himself or herself and cover necessary expenses. This is a gender-neutral provision that allows either the wife or husband to seek maintenance.
The applicant must not have an independent source of income sufficient to support herself or himself during the pendency of the lis. Section 24 of the HMA provides for maintenance pendente lite, in which the Court may order the respondent to pay the expenses of the proceeding as well as a reasonable monthly amount based on the income of both parties.
Section 24 reads as:
“24. Maintenance Pendente lite and expenses of proceedings.— Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable.
On the other side Section 25 provides for grant of permanent alimony, which reads as :
“25. Permanent alimony and maintenance — (1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property,
if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
Hindu Adoptions & Maintenance Act, 1956 (“HAMA”)
HAMA is a special law that was enacted to amend and codify the laws relating to adoption and maintenance among Hindus during the marriage’s subsistence. Section 18 states that a Hindu wife has the right to be supported by her husband during her lifetime. She has the right to seek a separate residence without forfeiting her right to maintenance. Section 18 read in conjunction with Section 23 specifies the factors to be considered when determining the amount of maintenance to be paid.
Section 18 reads as :
“18. Maintenance of wife.— (1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance—
(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish or willfully neglecting her;
(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;
(c) [****]
(d) if he has any other wife living;
(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;
(f) if he has ceased to be a Hindu by conversion to another religion;
(g) if there is any other cause justifying living separately.
Section 22 provides for maintenance of dependents. Section 23 provides that while awarding maintenance, the Court shall have due regard to the criteria mentioned therein:
“23. Amount of maintenance. – (1) It shall be in the discretion of the court to determine whether any, and if so what, maintenance shall be awarded under the provisions of this Act, and in doing so, the court shall have due regard to the consideration set out in sub-section (2) or sub-section (3), as the case may be, so far as they are applicable.
(2) In determining the amount of maintenance, if any, to be awarded to a wife, children or aged or infirm parents under this Act, regard shall be had to—
(a) the position and status of the parties;
(b) the reasonable wants of the claimant;
(c) if the claimant is living separately, whether the claimant is justified in doing so;
(d) the value of the claimant’s property and any income derived from such property, or from the claimant’s own earning or from any other source;
(e) the number of persons entitled to maintenance under this Act.
What Are The Deciding Factors For Amount Of Maintenance ?
In determining the amount of maintenance, if any, to be awarded to a dependant under this Act, regard shall be had to—
(a) the net value of the estate of the deceased after providing for the payment of his debts;
(b) the provision, if any, made under a will of the deceased in respect, of the dependant;
(c) the degree of relationship between the two;
(d) the reasonable wants of the dependant;
(e) the past relations between the dependant and the deceased;
(f) the value of the property of the dependant and any income derived from such property, or from his or her earnings or from any other course;
(g) the number of dependants entitled to maintenance under this Act.”
Is there any Alimony Calculator or How Calculation of Alimony is Done?
Alimony in India is determined by various factors, including the length of the marriage, the financial status of both partners, and any children involved. There is no set formula for calculating alimony in India, but it is generally calculated based on the following factors:
- Income and earning capacity of both partners
- Standard of living during the marriage
- Age and health of both partners
- Contributions made by each partner during the marriage
- Responsibility for the children’s care
FAQ
If Wife Filed For Divorce Can She Get Alimony ?
Yes, if a wife files for divorce, she can potentially receive alimony, also known as maintenance, under the provisions of the Hindu Marriage Act, 1955 or the Special Marriage Act, 1954. The decision to award alimony is made by the court and depends on several factors, including the wife’s financial needs and resources, the husband’s financial capability, and the length of the marriage. Alimony can be awarded either as a lump sum payment or as periodic payments. It is best to consult a local family law attorney for specific guidance in an individual case.
Punishment For Not Paying Alimony In India ?
In India, failing to pay alimony or maintenance as ordered by a court can result in a variety of legal consequences. If a person has been ordered to pay alimony and fails to do so, they may be held in contempt of court, which can result in fines, imprisonment, or both. Additionally, the court may take enforcement action to recover the unpaid alimony, such as wage garnishment or seizure of assets. The specific consequences for not paying alimony can vary depending on the jurisdiction and the circumstances of the case
Difference Between Alimony And Maintenance ?
The terms “alimony” and “maintenance” are often used interchangeably and refer to financial support provided by one spouse to another after the end of a marriage. The support is meant to help the receiving spouse maintain a standard of living similar to that which was established during the marriage.
The terms “alimony” and “maintenance” are generally used to refer to the same thing, which is financial support provided by one spouse to another after a divorce or legal separation.
Alimony, If Husband Is Unemployed India ?
if a husband is unemployed, he can still be ordered to pay alimony or maintenance to his wife after a divorce or legal separation. The decision to award alimony is based on several factors, including the husband’s ability to earn an income, his financial resources, and the wife’s financial needs and resources.
Even if the husband is unemployed, the court may consider his past employment history, education, and other factors to determine his earning potential. If the court determines that the husband has the ability to earn an income in the future, it may order him to pay alimony to his wife.
Conclusion
The purpose of Alimony/Maintenance is to provide financial assistance to one of the partners in order for them to meet their basic needs. Alimony/Matrimony is not based on any set rule or straight rule where the amount can be calculated based on the route. Furthermore, alimony plays an important role in giving non-earner partners a breath of fresh air after being devastated by a broken marriage and then having to face the consequences of financial strain.
Deciding Hon’ble Court always keep a calculative approach for both the parties so that no one gets injustice, one way non-earner partner would get same support carried forward as previously in cordial relationship, whereas on the other side the partner who became liable to pay, should not get any burden which is not justifiable to his capabilities. The best part of India’s evolving legal framework is that both partners now have an equal opportunity to present their case to the Hon’ble Court, and there is no gender bias. As a result, the husband can now seek alimony from his wife if he can demonstrate his inability to earn and maintain his previous status.
Disclaimer
The views expressed in the blogs are purely the authors’ own, and they are not intended to offend anyone or to be prejudicial toward or against any individual, group of individuals, society, sex, gender, race, creed, nation, or religion, or any other term that is even remotely and closely connected. Legal-Varta is a platform for disseminating knowledge so that everyone can comprehend the legal system better. In order to avoid any misrepresentation and since it is even not advisable to do so, only content that is directly related to the Law and Statute is included in the articles. If any misrepresentation is discovered, however, we are willing to amend it because it is only for everyone’s advantage.
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