One of the heated topics in India is alimony; some consider it as a way to provide dependent spouses to help them financially after a divorce, while others claim that it can be misused and severely burden the other spouse.
However, in a wider perspective, alimony aims to protect those spouses who have sacrificed their education, career, and financial freedom to manage the household and take good care of family. When such a marriage ends due to unfortunate circumstances, it becomes difficult for a dependent spouse to lead a self-sufficient life. Considering these factors, alimony not just looks into financial obligation but also ensures fairness and social justice.
Divorce Attorneys guide you regarding your rights and advocate a proper alimony settlement so that you get or pay an equitable amount in accordance with your situation. It is important to consult a good lawyer and at Prime Legal our divorce lawyers will help you understand your rights and fight for a fair alimony settlement.
What is Alimony
The term alimony is originally derived from two Latin words called “Alimonia” and “Alere” which means “nourishment” or “sustenance” and “to nourish“. In simple terms, alimony means one spouse providing financial support to another economically weaker spouse to ensure their nourishment and basic living needs.
People often get confused between child maintenance and alimony. Child maintenance is financial support to help with a child’s living costs and welfare when parents are separated, whereas alimony is financial support provided by one spouse to another economically weaker spouse to help with basic living needs.
In India, the right to claim alimony is not confined only to the wife. Any financially dependent spouse, either husband or wife, can claim alimony after divorce, irrespective of whether the divorce is contested or granted by mutual consent.
Legal Provision Governing Alimony In India
Various Indian laws specifically deal with alimony after divorce to ensure fairness, social justice, and financial security for the dependent spouse, particularly in cases where divorce is sought on the recognised grounds under the Hindu, Muslim, Christian, and Special Marriages Acts.
a) Bharatiya Nagarik Suraksha Sanhitha (BNSS)
According to Section 144 of the Bharatiya Nagarik Suraksha Sanhitha (BNSS), a husband is required to provide his wife with monthly maintenance if she is unable to support herself.
b) Hindu Marriage Act, 1955
Section 24 of the Hindu Marriage Act, 1955, deals with maintenance pendente lite and expenses of proceedings, which means either husband or wife who is economically weak can seek for maintenance while the suit is pending in court.
Section 25 of the Hindu Marriage Act, 1995, deals with permanent alimony and maintenance. Which means the court may order maintenance for either husband or wife who is economically weak with a long term or permanent maintenance. It can be paid in lump sum or periodically. The payment may be made in full at once or in installments. The court decides the amount after carefully evaluating various factors.
c) Hindu Adoption and Maintenance Act
Regarding Section 18(1) of the Hindu Adoption and Maintenance Act, a wife is entitled to maintenance from her husband for the life of their marriage if they live apart for any reason, including cruelty, bigamy, leprosy, desertion, or if he converts to a different faith without her agreement.
d) Special Marriage Act, 1954
Sections 36 and 37 of the Special Marriage Act of 1954 address both permanent and alimony pendente lite for all individuals married under the act, regardless of their religious beliefs.
e) Parsi and Christian personal laws:
The Indian Divorce Act, 1936, governs alimony and maintenance for Parsi and Christian spouses.
Who Can Claim Alimony In India
1. Wife’s Right to Claim Maintenance
In Indian societies, the wife is given the major responsibility to take care of and manage the family, subsequently making her financially dependent on her husband. And when the couple part ways, the wife becomes financially weak, and it becomes difficult to lead her life with basic necessities. In this context, our Indian government has come forward with several laws that protect the dependent wife, such as the Hindu Marriage Act, 1955, which gives a Hindu wife the right to claim maintenance from her husband. A wife living separately on grounds like desertion, cruelty, leprosy, bigamy, or if the husband converts his religion without her consent can get maintenance from her husband for life time as per Section 18(1) of the Hindu Adoption and Maintenance Act.
The court, before granting maintenance, considers certain factors such as the income and assets of both husband and wife, duration of marriage, conduct, child custody, standard of living, age and health, and other circumstances. At the end it is the court’s discretion to decide the amount of maintenance.
In the case of Chanmuniya vs. Chanmuniya Virendra Kumar Singh Kushwaha and Ors. (07.10.2010 – SC) : MANU/SC/0807/2010, the court held that a man who lived with a woman for a reasonably long period of time as a husband and wife, even without a valid marriage, is still liable for maintenance if he deserts her.
A Muslim woman has the right to claim maintenance under Section 144 of Bharatiya Nagarik Suraksha Sanhitha (Section 125 of CrPC) even after marriage till she gets remarried to another man. Whereas, Christian and Parsi women are protected by the Indian Divorce Act, 1954, till they are remarried.
2. Husband’s Right to Claim Alimony
A large part of the Indian society is unaware of the fact that even a husband has the right to claim maintenance under Section 24 and 25 of the Hindu Marriage Act, 1955. The burden of proof lies on the husband to prove to the court that he is not capable of earning, he is physically or mentally unstable, and he finds it difficult to manage basic necessities of life. The court considers certain factors before granting the maintenance, such as the property and assets the husband owns and the capacity of the wife to earn income. If the court finds out that the husband who is capable of earning chooses to stay idle and claims maintenance, then the same will be rejected.
Types Of Alimony In Divorce Cases
1. Temporary Alimony/ Interim Maintenance
As per section 24 of the Hindu Marriage Act, 1955, Interim Maintenance is granted when the suit is still pending in the court. The dependent spouse may receive her maintenance for daily basic requirements, and costs incurred during the court proceedings.
2. Permanent Alimony/Maintenance
This kind of alimony is granted to the spouse after the divorce decree is passed by the court. It can be paid in a lump sum or periodically. The payment can be made via installments or entirely at once.
3. Rehabilitative Alimony
Rehabilitative alimony is paid for a limited period of time till the spouse becomes economically stable and self-sufficient.
4. Lump Sum Alimony
A lump sum amount is paid all at once to the dependent spouse instead of paying it in installments.
How Is Alimony Decided In Divorce Cases?
Before granting alimony, the court looks into certain relevant factors to determine the amount in divorce cases.
1. Income and assets
The earning capacity of both husband and wife is considered to determine the amount of alimony.
2. Duration of Marriage
The duration of marriage is also one of the factors, as the longer time together leads to more financial dependency between the spouses.
3. Child custody and responsibility
If a spouse is given child custody, then the other spouse should also provide maintenance of the child along with spousal support.
4. Age and Health
Age and health are also important factors to determine the alimony because an aged and ill spouse may require a considerably greater amount as alimony for medical needs.
Alimony For Mutual Divorce Vs Contested Divorce
Divorces are of two types, which are Mutual divorce and Contested divorce, depending on whether the couple chooses to mutually dissolve the marriage or seek court intervention.
When a couple with clear understanding amicably decides to part ways, then it is called mutual divorce. Alimony for such a kind of divorce is based on mutual agreement.
Whereas in contested divorce, which means the spouses can’t agree on the terms of divorce, the court decides their alimony based on certain relevant factors such as the income and assets of both husband and wife, duration of marriage, conduct, child custody, age and health, standard of living, and other circumstances.
Common Myths About Alimoney In India
1. Alimony is Automatic
It is a myth, alimony is not automatic in India. The spouse seeking alimony should file a specific application in the court. The court, after considering the relevant factors such as the income and assets of both husband and wife, duration of marriage, conduct, child custody, age and health, and standard of living grants alimony.
2.Only Women Can Claim Alimony
It is a myth, both men and women can claim alimony in Indian laws such as Section 24 and 25 of the Hindu Marriage Act, which specifically mention “either husband or wife”.
3. Alimony Last for Life
The permanent alimony can be terminated based on the dependency of the spouse or if the spouse is remarried.
Conclusion
Alimony aims to protect a spouse who is economically weaker by giving financial support. Alimony not only looks into financial obligation but also ensures fairness and social justice. In India, the right to claim alimony is not confined only to the wife. Any financially dependent spouse, either husband or wife, can claim alimony after divorce. Its calculation relies on numerous personal and financial considerations, and expert guidance is required to unravel the complexity.
If you require assistance in determining equitable alimony or protecting your rights, get in touch with our divorce law specialists in Bangalore for an appointment. Expert counselling can yield a big impact in achieving a fair result. If you need help calculating fair alimony? Contact our best divorce lawyers in Bangalore for a consultation.
FAQ
1. Is alimony mandatory in every divorce case in India?
No, alimony is not mandatory. The court, after considering the relevant factors such as the income and assets of both husband and wife, duration of marriage, conduct, child custody, age and health, and standard of living grants alimony.
2. Can alimony be modified after divorce?
Yes, alimony can be modified based on the financial circumstances of the spouse.
3. Can a working woman claim alimony?
Working women may be eligible for alimony based on variations in lifestyle and income.
4. What happens if alimony is not paid?
Contempt of court, attachment of property, garnishment of salary, and imprisonment.
5. Does remarriage affect the alimony payment?
When you are remarried, you tend to get financial support, so your alimony will be terminated.
6. Is alimony taxable in India?
Alimony paid in lump sum amounts is not taxable in India, as it is treated as a capital receipt, and therefore, the Income Tax Act, 1961 provisions do not apply. Whereas alimony in installments is considered as a revenue receipt and comes under the provisions of the Income Tax Act, 1961 and hence is taxable in the hands of the recipient.
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