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The two terms Alimony and Maintenance are almost synonymous and may seem interchangeable. But actually maintenance has wider scope which extends beyond matrimonial relationship and also can be claimed devoid of divorce. In the context of husband and wife relationship both the terms mean payment of some amount in money or property by one of them to the other.
The origin of this concept goes back to the olden days where “unity of personality” theory was practiced for the spouses in matrimony, whereas all the property belonged to the husbands. On separation, the wife had no means to support herself for legal expenses as well as for her sustenance. The same concept was later used in the matrimonial laws and continued in the post independent era in India.
In the case of Kirtikant D Vadodaria v State of Gujarat (1996) 4 SCC 479, the Supreme Court ordered, “According to the law of the land with regard to maintenance, there is an obligation of the husband to maintain his wife which does not arise by reason of any contract – express or implied – but out of jural relationship of husband and wife consequent to the performance of marriage. The obligation to maintain them is personal, legal and absolute in character and arises from the very existence of the relationship between the parties.”
It has further evolved to improve further on another account. In cases where husband has no independent income sufficient for his support and necessary expenses of the proceeding while the wife has, the court may pass an appropriate order in favour of the husband for payment of alimony or alimony pendente lite or maintenance by the wife.
Alimony or Alimonia in legal parlance means an allowance for the support of a wife who is legally separated from her husband, settled at the discretion of the court on consideration of all circumstances of the case and usually proportioned to the rank and quality of the parties. This is also called “Permanent Alimony”. It is usually given as a one time lump sum payment by way of money (a Demand Draft or Bank Transfer), transfer of property or any other valuable asset while passing the final decree of divorce. In certain cases courts have also allowed the payment in installments on specified dates, but they are not periodic payments.
While the divorce proceedings are ongoing, the wife can plead for an interim order to grant maintenance and the court may order a certain amount as alimony/ maintenance which is usually paid in periodic intervals (monthly or quarterly) until the final decree is passed. This is called alimony pendente lite.
Maintenance – an amount claimed by one from the other for sustenance. It can be claimed independently even without any matrimonial relief. The object of this provision is to prevent the person from becoming vagrant. Not only the wife can claim maintenance but also the children, parents can claim maintenance under different provisions of law. The person claiming shall not have any sufficient means to maintain herself or himself; also the person who is ordered to pay maintenance has sufficient means to do so and willfully neglecting to maintain.
Protection of Women from Domestic Violence Act, 2005 – Section 20 provides for monetary relief, which also includes maintenance. This maintenance can be in addition to the relief obtained under Sec 144 of BNSS.
1. Alimony in Contested Divorce – the spouse who needs financial support has to claim for interim/ permanent alimony either in the petition, or as an interlocutory application or as a counter claim in the written statement. The pleading for interim alimony (alimony pendente lite) is heard by the court on priority basis over the divorce proceeding and orders are passed accordingly. The permanent alimony amount and other particulars are decided at the end of the divorce proceedings. The aggrieved party has an opportunity to appeal the order.
2. Alimony and Maintenance in Mutual Consent Divorce – Both the spouses mutually and amicably agree on the payment/ non payment of alimony or maintenance to each other and also plan how assets and liabilities are shared between them.
3. Maintenance in Contested Divorce – The spouse who is in need of financial support can seek that support from the other spouse by an application made to the family court under the appropriate matrimonial/ personal law. The other spouse is given an opportunity to be heard and also to give objections to the demand made. Both the spouses are required to file an affidavit in a prescribed format wherein all the assets and liabilities are declared. The court, after considering all the facts presented, decides on the maintenance amount and periodicity for such payment. The aggrieved party has an option to appeal this order.
4. Maintenance under Bhartiya Nagarik Suraksha Sanhita, 2023 – Section 144 of the BNSS is a secular provision for people all religions and also a provision where a wife can ask for maintenance without seeking divorce from a husband who has failed to maintain his wife and children when he has the means to do so.
A wife can file a case in the court seeking maintenance under this section. Both the parties are asked to provide detailed information on assets and liabilities in the prescribed format. After perusal of all the material facts presented, the court decides on the maintenance amount.
How much alimony or maintenance am I entitled to? This depends on many factors. Among them the most important ones are how much money would you need as maintenance for your monthly expenses and how much money your spouse can shell out from his/ her earning on a monthly basis. The other aspects considered are the liabilities, dependent parents & children, health condition, immovable assets, other sources of income, etc of both the spouses.
The landmark case of Rajnesh v Neha AIR 2021 SUPREME COURT 569 the Supreme Court has given guidelines on the following issues in Part B of its judgement;
(i) The objective of granting interim / permanent alimony is to ensure that the dependant spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded.
The Court must have due regard to the standard of living of the husband, as well as the spiraling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able bodied and has educational qualifications.
(ii) A careful and just balance must be drawn between all relevant factors.
(iii) Section 23 of HAMA provides statutory guidance with respect to the criteria for determining the quantum of maintenance. Sub-section (2) of Section 23 of HAMA provides the following factors which may be taken into consideration : (i) position and status of the parties, (ii) reasonable wants of the claimant, (iii) if the petitioner/claimant is living separately, the justification for the same, (iv) value of the claimant’s property and any income derived from such property, (v) income from claimant’s own earning or from any other source.
(iv) Section 20(2) of D.V. Act provides that the monetary relief granted to the aggrieved woman and / or the children must be adequate, fair, reasonable, and consistent with the standard of living to which the aggrieved woman was accustomed to in her matrimonial home.
(v) The Delhi High Court in Bharat Hedge v Smt. Saroj Hegde laid down the following factors to be considered for determining maintenance :
“1.Status of the parties.
2. Reasonable wants of the claimant.
3. The independent income and property of the claimant.
4. The number of persons the non-applicant has to maintain.
5. The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home.
6. Non-applicant’s liabilities, if any.
7. Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.
8. Payment capacity of the non-applicant.
9. 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.
10. The non-applicant to defray the cost of litigation.
11. The amount awarded u/s 125 Cr.PC is adjustable against the amount awarded u/ 24 of the Act.” (Now u/s 144 of BNSS)
(vi) Additional factors
If a spouse has no financial means and it is proved through the affidavit submitted to the court he/ she will not be ordered to pay maintenance to his/ her spouse who has better financial standing. Truthfully declaring your assets and liabilities will help you to avoid paying the maintenance in such cases. Any information wrongly filled and sworn in the affidavit attracts a criminal proceeding on perjury.
When there is a court order to pay maintenance, any refusal or non-obedience to the order may attract contempt of court case against the judgment debtor. However, appeal can be filed in the higher court, if you are aggrieved by the orders.
Is it compulsory to pay alimony or maintenance?
It is not compulsory or mandatory to pay alimony or maintenance. Only if there is a demand by one of the parties and the other party has means to fulfill the demands, the court orders for the payment of alimony or maintenance.
Yes, they can claim alimony or maintenance. If the court finds the working woman has better earnings and her husband’s financial status is not healthy, then he cannot support his wife financially, it rejects the claim of his wife.
If a husband who is in need of money with deteriorated financial status can claim maintenance from his wife. The court has discretionary power to peruse the evidence provided for the same and give orders accordingly.
The spouse seeking financial support can apply seeking alimony pendente lite which is a remedy to get interim maintenance during the divorce proceedings until the final orders are issued. The petition/ interlocutory application made to the court seeking the interim maintenance detailing the expenses per month and the amount needed to fulfill them.
The maintenance ordered to be paid to the wife periodically i.e. monthly/ quarterly/ annually and so on, on a recurring basis is only until the wife remains unmarried.
The child support ordered to be given by the father would continue with periodic revision as and when the circumstances change as the child grows. This payment will not stop even if the mother remarries.
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