With divorce rates on the rise, here’s all you need to know about alimony and maintenance laws in India. An essential read for Indian women.
As divorce rates are on a rise, so is the fight of women for maintenance and alimony.
In a marriage, a large number of women still become a homemaker, thus leaving them in a spot, with little to go on with when it ends. The right to claim maintenance in a suit for separation is indispensable. The woman can file for maintenance in a family court of their area.
Let’s explore the alimony and maintenance laws in India in some detail.
Alimony, in simple terms, is the allowance paid by one spouse to another for their sustenance. Alimony and maintenance are the same, and are used as different names in different places. In some countries and places, ‘alimony’ is used while in some other regions, ‘maintenance’ is in vogue.
In India, we use the terms interchangeably after divorce, whereas before divorce, the term maintenance is used. Alimony and maintenance both connote the existence of a duty on the part of one person to provide for the needs of another person or persons who are dependent on them.
A discussion on alimony and maintenance can be divided under two basic heads, interim maintenance and permanent maintenance.
While the legal proceedings are still underway, a husband is required to pay maintenance for the wife, along with the expenses of the proceedings. The interim maintenance is payable from the date the petition is filed, till the time the final order is passed.
The provision of permanent maintenance or alimony, exists in the laws of all the communities. When a decree of dissolution of marriage or judicial separation is obtained by the wife, the court may order that the husband shall pay the wife any particular amount fixed by the court, either periodically, or in one go as a lump-sum payment.
Our country comprises different communities, and each community has its own personal laws derived from religious scriptures, customs and traditions.
Thus, the grounds on which a Hindu woman can seek divorce and alimony may not be the same for every other community. The Hindu community is governed by The Hindu Marriage Act, 1955 and the Hindu Adoption and Maintenance Act, 1956, which grant the right to women to claim maintenance. Under Hindu laws, the quantum of maintenance amount is based on several factors like husband’s financial income, assets, liabilities, wife’s employment and earning status etc.
Under Muslim personal law, the wife can claim compensation through Muslim Women (Protection of Rights on Divorce) Act, 1986.
Divorced Christian women can claim maintenance under the Indian Divorce Act, 1869. The Act prescribes one-fifth of the husband’s income as the maximum maintenance amount.
The Parsi Marriage and Divorce Act, 1936 provides the right of a wife to claim maintenance from her husband as one of the rights of wife after divorce in India, while in the case of inter-caste marriage it is governed by Special Marriage Act, 1954.
Section 125 of the Code of Criminal Procedure, 1973, which applies to all communities lays down the provision for maintenance of wives, children, and parents if they do not earn enough and reasonable means to maintain themselves, or suffer from any physical or mental incapacity. Under this section, even a wife who has not divorced her husband has the right to get maintenance from her husband.
Although there are different personal laws for each community, the line of difference has started to blur between all the personal laws. For example under the Muslim law, the wife was allowed maintenance only till the iddat period (three months after divorce); however the Supreme Court in a case held that the duty of the husband to pay a fair and reasonable amount to the wife is not limited to the iddat period, bringing it in consistence with other personal laws, where the time to receive maintenance is not limited to a certain period.
When a couple gets divorced by mutual consent, the decision on whether any alimony/maintenance is to be paid by either party is a matter of agreement between them. However, in matters where it is contested, the court decides depending upon the merit of each case.
Following factors are taken into consideration by the court while deciding permanent maintenance for the wife.
One of the considerations of granting permanent maintenance is assessing income and property of the parties. When a wife makes an application for maintenance, the husband is required to give full details and make complete disclosure of his income and properties. The wife can make queries about any alleged omission. A similar disclosure, though, is also required to be made by the wife. The court then exercises its discretion to come to a conclusion on a fixed amount, taking all the information into account.
Lifestyle, along with the financial status of the parties, is one of the most important factors while arriving at a conclusion by the court. Reasonable wants does not only include providing the wife food and just keeping her alive. Emphasis is paid on their lifestyle, status, health, age, liabilities and responsibilities. The courts have said that ordinarily the wife is entitled to an amount of maintenance that will enable her to maintain almost the same standard of living to which she was entitled before the marriage broke down. In case of a minor child, his/her necessities are also taken into consideration.
Generally, courts award 1/4th of the husband’s income to the wife as maintenance. In a case last year, the Supreme Court also set the benchmark at 25% of husband’s net salary as the amount for maintenance as “just and proper”. The court said that the amount of maintenance or permanent alimony must be sufficient to ensure that a woman lived with dignity after separating from her husband.
The husband is not required to pay maintenance in case the wife remarries. He can also contest and refuse to pay maintenance on the ground that the wife is gainfully employed. The court can though still award maintenance to be paid for the children.
However, only the fact that the wife is employed cannot be a ground for not paying maintenance, as the employment of the wife should be in line with the lifestyle of both the spouses. For example, if the wife takes tuitions and earns a sum which is just enough for her survival, but the lifestyle of the couple was much higher than the amount the wife earns can give her, the court could still ask the husband to pay a sum to maintain that living standard. However, in cases where the wife earns more than the husband, it is difficult for the wife to get any maintenance.
Women should be well-informed of her husband’s earnings, properties, bank account details, and educational qualifications to contest the case for a reasonable maintenance amount. Even if she is not aware of the current salary of the husband, but knows about his qualifications and past jobs, she can still make a statement on his earning capacity for the court to award award her right amount of maintenance.
If the person is not satisfied with the decision of the family court, They can appeal in the High Court of the respective state against the order.
The wife is not a ‘parasite’ on the husband’s earnings, alimony and maintenance is her right.
Some laws and other conditions on which alimony can be decided, that you should know about.
The case of Shah Bano Begum.
More details regarding the personal laws of various religions for alimony and maintenance.
Divorce in Islam under Muslim Laws in India.
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