Maintenance, financial support granted to a spouse after divorce is known as alimony. Alimony/maintenance is granted to an individual who does not have means to take care of the basic needs after getting divorced. Maintenance from the point of view of law refers to financial assistance given to either of the litigating parties on an application made by them before a competent Court. The maintenance shall lie only through an order passed by the court having jurisdiction to do so. Maintenance provides provision for food, clothing, residence, education and medical attendance and treatment.
Alimony Under Various Personal Laws
Hindu Law
Hindu Marriage Act: Hindu law lays down provisions for grant of alimony to the spouses irrespective of the gender. In cases of mutual consent divorce, alimony is decided by the spouses mutually whereas in contested matters alimony is decided by the Court upon considering various factors. The Hon’ble Apex Court recently held that the alimony can be granted upon determination of eight factors being:
a. Status of parties- social and financial.
b. Standard of life enjoyed by the wife in matrimonial home.
c. Reasonable needs of wife and children.
d. Parties’ status in the society as individuals as well as their employment status.
e. Employment sacrifices, if any made for family responsibilities.
f. Independent assets/ income owned by the person seeking alimony.
g. Costs incurred towards litigation being reasonable wherein the wife is not working.
h. Financial capacity of the husband, the husband’s income, maintenance obligations and liabilities.
Hindu Adoption and Maintenance Act: i. Chapter III of the Act provides for maintenance of wife, minor children, parents, widowed daughter-in-law, and other dependents.
ii. A wife is entitled to claim maintenance under Section 18(1) of the Act during her lifetime, till the matrimonial relationship persists.
iii. The Act lays down that it is not mandatory for the wife to be living with husband. Wife’s right to claim maintenance prevails even if she lives separately from her husband by providing a sufficient cause of separation like desertion, cruelty, leprosy, living with another wife, keeping a concubine, conversion, or any other reasonable ground.
iv. A windowed wife who is unable to maintain herself after death of her husband, has no estate of her own and is unable to get maintenance out of the estate of her husband, the mother or father, son or daughter shall be entitled to claim maintenance from her father-in-law.
v. The Act provides for maintenance to be provided to minor child either legitimate or illegitimate, biological or adopted, till the age of majority, and till marriage in case of an unmarried daughter.
Non-Grant of Maintenance
The right to claim maintenance shall stand revoked in cases wherein the wife is found to be involved in an adulterous way of living or is living separately from her husband without any sufficient ground, or by mutual consent of both the parties.
Further, a divorcee wife cannot claim maintenance. Once the right to maintenance has been waived off by wife at the time of divorce, it cannot be reclaimed later. The application seeking maintenance shall be further rejected, in cases wherein the factors as laid down by the Hon’ble Supreme Court are not fulfilled/not satisfactory.
Muslim Law
As per the provisions of Muslim law, woman have the right to seek maintenance and the said right remains unaffected irrespective of the financial status of the woman.
Muslim Women (Protection of Rights on Divorce) Act: A Muslim woman is entitled to receive fair and reasonable amount during iddat period, an amount equal to dowry/Mehr agreed at the time of marriage, title of property(ies) given to her before or after marriage. Additionally, a Muslim woman is entitled to claim maintenance provided such woman has not remarried and is unable to maintain herself, has children and is unable to maintain them, cases wherein the woman does not have anyone to maintain her, the Magistrate may in such cases order the State Wakf Board to pay maintenance to such woman.
Christian Law
The alimony to be granted to Christians is dealt with by the provisions of the Indian Divorce Act. Several factors are considered by the Courts before granting maintenance such as nature of income of the husband, conduct of the parties, amongst others. The Court also determines whether the application filed seeking maintenance is maintainable or not and not has been filed merely to harass the other party.
Parsi Law
The Parsi Marriage and Divorce Act provides for the maintenance to be granted to a Parsi woman.
Alimony Under Other Laws:
Criminal Procedure Code
Parties of any religion can seek maintenance under the said Act. A man is liable to maintain his parents, wife and children in cases wherein the dependents do not have adequate means to maintain themselves. The Court asses the income, assets, properties, liabilities before granting maintenance under the said Act.
Special Marriage Act
In cases wherein the marriage is registered under the Special Marriage Act, only the wife is entitled to get permanent alimony.
Types
a. Interim maintenance
An application can be moved seeking interim maintenance by a spouse who is unable to maintain itself during the pendency of the court proceedings. Such application may however be rejected if it is proved that the spouse seeking such maintenance is well educated, is capable to earn, if it is proved that such spouse was previously earning and has left the job without any just grounds. The Hindu Marriage Act lays down the provisions for seeking interim maintenance during pendency of proceedings.
b. Permanent Alimony/Amount granted upon conclusion of court proceedings.
The said amount is granted as maintenance upon conclusion of proceedings. The amount can be granted as lump-sum, or a monthly/quarterly amount can be fixed by the Court depending on the financial condition of the spouse who must pay such alimony.
Persons Eligible To Receive Alimony
Permanent alimony is granted by the court to one of the spouses towards financial maintenance and support. Maintenance can be granted to a working woman as well in some cases wherein it is established that the woman’s income is lesser than her husband. In such cases alimony is granted to the woman to maintain same lifestyle as her husband. Maintenance is granted to woman who are not earning based on the woman’s age, educational qualification and ability to earn. The husband is granted alimony in cases wherein the husband is not earning, and the wife is earning. The minor children are also eligible for getting maintenance, the children who have become major but dependent are entitled to seek maintenance if the conditions as laid down are met.
Calculation of Alimony
The alimony is decided on case-to-case basis. No fixed rule has been laid down for calculation of alimony. The alimony is granted by the Court after assessing several factors including but not limited to the income and expenses of the spouses few of them are stated herein below:
a. Incomes and other properties, if any.
b. Conduct of both the parties.
c. Tax liabilities, loans, other expenses.
d. Liability of the husband, such as dependent parents.
e. Social status and lifestyle of the parties.
f. Age and health condition of the parties.
g. Costs/Expenses for education and upbringing of children, if any.
Quantum of Alimony
The quantum of alimony to be paid shall depend on the factors stated above including the earning capacity of the spouse to whom the alimony is granted. The Hon’ble Supreme Court of India held that 25% of the husband’s net salary shall be considered to just and proper to be granted as alimony to the wife. However, there is no set rule for grant of alimony. Additionally, the wife’s income, educational qualification, capacity to earn is also considered.
Circumstances Wherein the Application Seeking Maintenance Can Be Rejected
In cases wherein it is proved that the husband is incapacitated of maintaining himself, wherein the statements made by the wife regarding the income of the husband is not supported with any documentary proof. Such application may also be rejected in the absence of satisfactory income proof of both the spouses.
Tax Implication on Alimony Received
The alimony received on monthly/quarterly basis is considered as revenue receipt and is added to the total income of the receiving spouse. Such amount, if eligible is subjected to tax based on the Income Tax Rules. However, no tax is deducted from the amount received as lump sum maintenance.
Conclusion
The provisions for alimony are laid down to protect the financially weaker spouse and is granted upon due assessment and satisfactory evidentiary proof that the spouse being granted such maintenance is incapacitated to maintain itself. Various personal laws have different provisions for grant of alimony/maintenance.
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