Maintenance and Alimony

Going through a divorce can be lengthy and complicated. If you have decided to separate from your spouse, you may be entitled to claim alimony to support your living expenses.

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What is Alimony?

When a couple decides to end their marriage by way of a divorce, there is usually some kind of monetary compensation given by one spouse to the other, so that they are able to maintain the standard of living that they are accustomed to even after the divorce. Such compensation is mandated by law, and is ordinarily paid by the spouse who is in a financially stronger position, to the other spouse.

A family court can order the payment of alimony even during the pendency of court proceedings (this is known as maintenance), or order either a lump sum or fixed monthly/quarterly payments as the case may be, during the time at which the couple is legally separated.

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What are the laws governing alimony?

As is the case with divorce laws, alimony laws in India vary from religion to religion. Some of these laws are explained below:


Hindu Law

As per section 24 of the Hindu Marriage Act, 1955, both the wife and the husband are entitled to claim maintenance from the other spouse, depending on the specific set of circumstances. This section does not discriminate based on gender, but takes into account numerous factors such as each spouse’s incomes and earnings, employment status, assets and liabilities and overall financial standing.

When a couple decides to get divorced by mutual consent, the decision of alimony to be paid by either party is usually as per their mutual understanding. However, in case of a contested divorce, the issue of alimony is decided on a case to case basis. The maintenance amount is entirely up to the discretion of the court.

The wife also has an additional option to claim maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956. The entitlement to alimony is based on (among other things), the following:-

  • “If the husband abandons the wife, without any justified reason, without her consent.
  • If the husband converted to another religion.
  • If the husband has another wife.
  • If the husband suffers from a virulent form of leprosy.
  • If the husband treats the wife with cruelty.
  • If the husband has a concubine in the same house.
  • If there is some other reason for the wife to live separately.”

This section is to be read with Section 23 of the same Act, which specifies that it shall be the discretion of the court to award maintenance if any and what amount to be awarded.

However, if the couple is married under the Special Marriage Act, 1954, only the wife has the entitlement to claim an alimony amount.

Alimony under Muslim Law

Here the parties first need to decide which law to file under, for the purpose of claiming the alimony amount. As per Muslim law, only women have the right to alimony. This situation remains unchanged even if the wife is of better financial standing compared to the husband.

The Muslim Women (Protection of Rights on Divorce) Act, 1986 lays down the provisions for the maintenance/alimony. After a divorce the wife is entitled to:-

  • “A reasonable and fair amount to be paid during the iddat period.
  • An amount equal to the dowery agreed to be paid during the time of marriage.
  • A title to the property(or properties) given to her either before or after marriage.”

Additionally, a separating wife can claim maintenance if:-

  • “She did not remarry and is unable to maintain herself after the iddat period.
  • She has children and is unable to support them.”

In the case that there is no one to pay the maintenance amount, the magistrate would order the State Wakf Board to pay the maintenance.

Alimony under Christian Law

Christian law deals with the maintenance of the separated wife under Sections 36, 37 & 38 of the Indian Divorce Act, 1869. Section 36 deals with the petition for expenses and alimony when the suit is ongoing. The main idea behind this Section is to provide the wife with financial support while the suit is still pending.

Section 37 of the Act, deals with the subject of permanent alimony. In any case, the court could order the husband to pay a weekly or monthly sum for financial support as the court may deem fit. If in the future, the husband is unable to make any such payment, the court may also temporarily discharge or suspend the order. Below are some factors taken into account under Section 37:-

  • “Conduct of parties before and after marriage.
  • Nature and source of husband’s income.
  • Wife’s own wealth, if any.”

Section 38 of the same Act contains the rules governing payment of alimony. The objective is to ensure the wife is given alimony in a due and timely manner.

FAQ's

The very first step in initiating divorce proceedings is sending a divorce notice to your spouse. This is a formal communication to clarify your intentions to discontinue the relationship.
When two people are married, they have an obligation to support each other. This does not necessarily end with divorce. Under the Code of Criminal Procedure, 1973, the right of maintenance extends to any person economically dependent on the marriage. This will include, therefore, either spouse, dependent children and even indigent parents.
The claim of either spouse (though, in the vast majority of cases, it is the wife), however, depends on the other spouse having sufficient means. When deciding the payment on the alimony, the court will take into account the earning potential of the spouse, their ability to regenerate their fortune, and their liabilities.
In a contested divorce, the alimony, its amount and tenure, depend upon the length of marriage. A divorce after a decade of marriage entitles the spouse to a life-long alimony. The other essential factors are:
  • Age of the spouse (or the person who is ought to receive the alimony)
  • Economic condition or the earnings of the person who is to provide the alimony
  • The health of both spouses (the failing health or a medical condition of one of the spouses who is going to receive the alimony may act in favour of him or her. They can claim a larger alimony on the basis of their failing health).
  • The spouse that retains custody of the child would either pay lesser alimony or pay a greater amount while the child is a minor.
It seldom matters whether you or your spouse own the property. If you are married – irrespective of the fact that a divorce petition has been filed – you have the right to occupy the property. If you are also looking after children, the case is much stronger. While the property may be granted to one or the other spouse in the divorce settlement, until this is done, both spouses have the right to remain on the property.
Remarriage without a divorce is a punishable offence with seven years imprisonment.
Depending on the nature of decree, after the expiry of three months from the date of decree, if no notice of appeal is received by the person remarrying from the other person.
While the courts usually agree to the decision of the parents in a mutual consent divorce, the courts are expected to see to the best interest of the child. In a contested divorce, the courts will examine the ability of the mother or father to be a parent to the child, for example. Usually, the court provides the custody of their children to non-working mothers, but the fathers are expected to provide financial support.

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