It is an undeniable fact that divorce wreaks havoc in your life. Financial security is often among a spouse’s primary concerns when you combine emotional devastation with cold, tricky money calculations. In this context, two terms are used in the legal parlance – Alimony & Maintenance. Alimony is the one-time settlement one of the spouses receives during divorce. On the other hand, maintenance is the financial assistance a spouse can seek either when the divorce case is ongoing or without a divorce case being filed or continued payment post-divorce. Alimony & spousal maintenance is one of the principal sources of support for the weaker spouse in a divorce.
In India, figuring out your rights and obligations in an alimony arrangement can be confusing. There is neither a ‘one size fits all’ formula, nor is the process simple to understand.. Questions such as: ‘Am I eligible for alimony?’; ‘How much can, or should, I receive?’; or ‘How long will I need to pay/receive alimony?’; and ‘What is my obligation to support financially?’. These queries can fill even a no-fault divorce or separation with anxiety, especially for those who are already suffering from the trauma of divorce.
The actual quantum of the alimony and maintenance awarded can vary widely depending on the facts of each case, and there are cited instances where courts have awarded spousal maintenance rates of up to 40 percent of the husband’s income. A 2021 report published by PRS Legislative Research, titled ‘The Hindu Marriage Act, 1955: A Review’, outlines a few case judgments that illustrate the judiciary’s current stance on the events that should prompt alimony.
This blog decodes the legalese and brings you clarity. We discuss pertinent information about alimony & maintenance – a common divorce-related issue and confusion – and how important it is to have the formidable backing of an expert lawyer with experience in alimony cases. You will also understand the factors involved in awarding alimony/maintenance, learn about the different types, and gain confidence to decide what fits your circumstances. At the end of this read, you will be an alimony expert.
Understanding Alimony/Maintenance In Divorce in India
Spousal maintenance, or alimony, refers to continuing financial assistance or one-time settlement from one spouse to another during or after divorce. In India, spousal maintenance is governed by personal laws that apply to the different religious communities in India – such as the Hindu Marriage Act, 1955 (short form, HMA), which governs the marriages of Hindus. These personal laws contemplate a spouse’s entitlement to spousal maintenance from the other spouse.
Remember that alimony/maintenance is certainly not an automatic factor following every divorce, and the court will consider several factors before deciding that alimony is the right decision.
Who Can Claim Alimony Maintenance in India?
Under the HMA, either husband or wife is entitled to claim for alimony/maintenance, depending on their financial situation. The following categories of spouses are eligible to claim alimony/ maintenance:
Wife: A wife gets maintenance from her husband, as declared by the court. Nowadays, in light of women’s financial independence, the courts take into account the financial status of the spouse who earns less.
Husband: If the husband is dependent on the wife, then alimony/ maintenance can also be given to him.
Children: Child support as a one-time settlement or periodic payment of a said amount or payment of certain expenses can be claimed by a minor child (through the parent), or the child still depends on parents for education and sustenance. The parent with the child’s custody can claim this from the other parent. Factors Considered for Awarding Alimony and Maintenance After Divorce in India
The court will consider several factors before awarding alimony. These factors include:
1. The income and earning capacity of both spouses:
The spouse with the greater earning capacity is generally required to make maintenance payments to the spouse with the lower earning capacity or no income.
2. The duration of the marriage:
Courts might be more willing to award lifetime maintenance for a marriage of a longer duration on the theory that it is costlier to readjust and compensate for the sacrifices made over decades. Short marriages might call for a lesser amount or a one-time settlement.
3. The standard of living enjoyed during the marriage:
The court wants to place the alimony-receiving spouse on a financially similar footing to what that spouse was on during the marriage.
4. The age and health of both spouses:
The age and health of the person paying alimony can, for example, inform whether copayment might be appropriate and for how long.
5. The reason for divorce:
The court may consider the parties’ conduct in relation to the divorce unless the court decides that the divorce affects one of the parties so harshly that it outweighs that party’s role in the breakdown of the marriage.
6. The wife’s contribution to the household:
A court may impute income (that is, treat the stay-at-home spouse as if she had continued to work) when calculating support, or it might take the homemaker seriously by counting her contributions to the marital home and household finances even if she didn’t work outside the home.
7. Assets & Liabilities:
The court considers all the assets in the names of both spouses individually and jointly. The liabilities in terms of bank loans or other financial institutions by both spouses are assumed to calculate the amount of maintenance.
Types of Alimony Awarded in India
In India, there are two main types of alimony awarded by the courts:
Interim Maintenance (Pendente Lite):
This is temporary spousal maintenance to the financially weaker spouse for the interim period of the divorce proceedings.
Permanent (post-divorce) Alimony/ Maintenance:
Payments to the wife-spouse upon the final decree of divorce. Permanent alimony can be granted in any of the following forms.
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- Periodic Payment:
A defined amount paid monthly by the paying to the receiving spouse.
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- Lump Sum Payment:
In certain circumstances, a court will often order a one-time lump sum payment when adequate assets are available.
Maintenance After Divorce in Islam
Traditionally, Islamic law has provided for financial support post-divorce. The principle is that of mehr (dowry) and mut’ah (maintenance), and whether mehr and mut’ah are provided by the husband, the means may differ depending on the Islamic school of law followed. Consult a knowledgeable Islamic law expert to determine which provisions apply to your situation concerning alimony.
Recent Judgment on Maintenance to Muslim Women:
From Shah Bano’s case decided in the year 1985 which instigated the enactment of Muslim Women (Protection of Rights on Divorce) Act of 1986 we have seen a full circle around maintenance for Muslim women post divorce. The judgement on Mohamed Abdul Samad v State of Telangana (on 10th July 2024) has upheld the rights of maintenance for Muslim woman under Criminal Procedure Code 125 (equivalent to Section 144 of Bharatiya Nagarik Suraksha Sanhita, 2023).
Conclusion
Divorce can be a complex process with many aspects to consider, both financial and emotional. While this blog post focused on alimony (maintenance) during divorce in India, it’s important to remember other crucial aspects to address. If you’re considering divorce, reading “How Mediation Offers a More Personalized Approach to Dispute Resolution” might be helpful, as it explores alternative methods for resolving divorce-related issues. Additionally, if children are involved, understanding “What Parents Should Know About Changes in Child Custody Laws” can ensure you’re up-to-date on any legal changes impacting custody arrangements. Finally, “Calculating Maintenance Payments in Divorce: Methods and Considerations” provides a deeper dive into the financial aspects of divorce settlements, including alimony calculations.
Alimony in India is governed by various circumstances that may be influential in establishing its burden, and hence, most of the time, the court grants it according to its discretion. Therefore, to protect your legal rights and ensure your financial requirements are well taken care of, you should consult an expert divorce lawyer, as hiring an expert family law divorce lawyer is handy.
An expert divorce lawyer will guide you throughout the legal process, provide the proper evidence to support your claim, and represent your case legally before the court according to your needs.
So, if you are looking for legal support and expert divorce help for your case, connect with our team of experts.
Frequently Asked Questions
1. Can I get alimony in divorce in India?
Yes, under various personal laws that apply to the people of India, either of the two spouses can claim alimony in a divorce. The HMA covers the Hindus and allows the spouse who is economically weaker to seek livelihood security from the other. The principles that guide courts in deciding eligibility and the quantum of maintenance are:
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- Income disparity.
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- Length of the marriage.
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- They enjoy the standard of living during the marriage.
2. Can an ex-wife ask for alimony during divorce?
Yes, the divorce was a contested matter; maintenance was not claimed earlier, and the amount of maintenance needed to change as per the changed circumstance. In that case, a spouse can claim through an application filed under the relevant personal law or secular provision of law under section 125 of CrPC/ section 144 of The Bharatiya Nagarik Suraksha Sanhita 2023.
3. Can a wife get alimony in divorce if she is working?
Whether the wife has a job is also a factor that is considered. Still, if her income allows her to make ends meet in the style she enjoyed while married, the court will unlikely award her alimony/ maintenance. In contrast, if her income is only a fraction of her husband’s and she cannot adequately make ends meet, she can still maintain her claim for alimony.
4. Can maintenance be changed after divorce?
Yes, maintenance can be modified after a divorce decree when there’s been a ‘substantial change in circumstances.’ This typically involves a significant rise or decline in either spouse’s income. Showing that the current alimony order doesn’t reflect the changed circumstances requires filing a petition with the court.
5. How Much Alimony/ Maintenance is Awarded in Divorce in India?
There is no mathematical formula for calculating alimony/maintenance. The court considers the abovementioned factors, exercises discretion and awards a fair and reasonable amount.
For Periodic Payments: The Supreme Court of India, in one of its judgments, has suggested that a fair starting point in working out the quantum of maintenance payable to a wife would be to assume that the husband’s net household income after factoring in all liabilities is 25 percent of his gross income. While the final quantum may be lower, the starting point is 25 percent.
The court may award you 1/5th to 1/3rd of your husband’s net assets for a Single Lump Sum Payment.
