Alimony is a monetary compensation granted to the spouse who is unable to support himself/herself by the other spouse during or after the divorce proceedings.There are two types of alimony generally and same applies according to the Indian Laws as well:
When it’s given during the time of the court proceedings, it is a maintenance amount. The second is when it’s given after the legal separation. After separation, alimony can be taken either as a one-time lump sum amount or a fixed payment, which could be monthly, quarterly and the like, depending on the requirement of the spouse. Alimony can be taken by either party depending on the case.
How does the court decide on the alimony amount?
The court decides the amount of alimony/maintenance which is to be paid by the respective spouse after examining various parameters like-
The income of the spouses, their standard of living and financial status are the factors considered. Spouse’s income, investments, and net worth, as well as the financial needs of the individuals, are taken into account.
Though there isn’t a fixed formula to quantify the amount, generally it is in the range of one fifth to one-third of the gross earnings of the spouse who has to pay alimony.
The number of years the couple has been married, the number of children and the kind of emotional investment made is also considered. The husband can request stopping of payment or reducing the amount if the wife manages to get another source of income.
Wife is earning: Court looks into husband’s financial status. If his income is very high, the wife will get some alimony.
Wife is not earning: Wife will get alimony that allows her to maintain a standard of living that is similar to that of her husband.
Wife remarries: Wife will not get anything. Husband will have to continue to pay for children if any. Husband is disabled and unable to earn: Wife can be asked to pay alimony.The terms and conditions of payment of alimony in India vary from one personal law to another. None of the Indian personal laws are spared from criticism due to the existence of laws in framing definite rules for granting alimony.
While choosing the mode of payment, the lump sum is a preferred option. Lump sum gives certainty. A regularly fixed payout can stop after a while due to reasons like the supporting spouse losing his or her source of income or death. The lump sum amount is not taxable as you get it as capital receipt. However, if investments made from this amount earn returns, the return is taxable. The monthly payment route is taxable to the spouse who gets it.
Once the court passes the order, the supporting spouse has to pay alimony which was decided. If payments are not made on time, there are consequences where the court can take further action against the spouse.Alimony is the right of a spouse, i.e. either the husband or the wife to get maintenance after divorce. In India alimony is governed according to the personal laws which means that the alimony laws for different religions are different. Let us look into how alimony is governed by different personal laws.
Alimony under the Hindu Law
As per this law, any court exercising its jurisdiction may, on the application of wife or the husband, can order to pay the applicant its maintenance and support such a gross sum or such monthly sum. This also means that the alimony that is allowed should be within the reasonable limits and should not be beyond the capacity of the other spouse. There are certain things that the court keeps in mind while deciding how much alimony to give. They are as follows:-
– Income of the party who has to pay the maintenance amount
– Property of the party against whom alimony has been claimed
– The income and other property of the applicant
– The conduct of the parties and other circumstances of the case
If the court is satisfied that there is a change in the circumstances of either party to the case, then it may at any time rescind, vary or modify in any such order in such manner as the court may deem just. Also if the party in whose favor the alimony has been granted remarries or the husband has an intercourse outside the wedlock then the court may again modify or vary the order.
As per the Hindu Marriage and Adoption Act, 1956 the Hindu wife is allowed to live separately and is also entitled to maintenance or alimony from the husband if the following have been fulfilled:-
– If the husband abandons her for no reason without her consent
– If the husband treats her with cruelty
– If the husband is suffering from virulent form of leprosy
– If the husband has any other wife living
– If the husband keeps a concubine in the same house
– If the husband has converted to another religion
– If there is any other cause for the wife living separately
The only condition when the woman will not be given the alimony is when she is unchaste or has converted to some other religion. According to the Code of Criminal Procedure section 125, the grant of interim maintenance can be given. In certain cases, the apex court has even said that alimony can be given even before the case is disposed of.
Alimony under the Muslim Law
As there are different provisions in the Hindu law, the same is the case with the Muslim law. Therefore, any party to the marriage will have to first decide which law to use for getting the alimony. Mostly in Muslim law, women are given the right to alimony and not the men. They can approach the court for alimony under the Muslim Women Protection of Rights on Divorce Act, 1986
After getting divorced a Muslim woman is entitled to the following:-
– A reasonable and fair, maintenance amount to be paid within the iddat period
– An amount equal to mehr or dower agreed to be paid at the time of marriage
– A title to all the properties given to her either before or at the time of marriage or during her marriage by any of the relatives friends or family of the husband.
Also, a woman under the Muslim law is applicable to maintenance if:-
– She has not remarried and is not able to maintain herself after the iddat period
– She has children and is not able to maintain them and perform her duties towards them
– If there is no one to maintain then the State Wakf board functioning in the an area in which the woman resides is bound to pay such maintenance determined by the court.
Under Christian Law
Having looked into the Hindu and the Muslim law of maintenance, let us look into the Christian Law of alimony. Christians in India are governed by the Indian Divorce Act, 1969. Under section 36 of the same act, a woman can claim her right to maintenance or alimony and the husband will be entitled to pay the alimony amount, if directed by the court. This means that similar to the Muslim law, the Christian law also does not recognize maintenance for men.
The section elaborates on the point that the whether the suit is presented by the husband or the wife, or whether or not she has obtained an order of protection the wife may present a petition for the expenses of the proceedings and alimony pending the suit. It also observes that the petition so served, will be served to the Husband which means that he will have to bear the expenses. The court on being satisfied with the truth may order the husband for the payment to the wife of the expenses of the proceedings and alimony which it may deem just. It also says that such a payment may be given by the husband within sixty days of the service of such petition on the husband.