One important right under divorce law is the right to receive and claim alimony. This term ‘alimony’ refers back to its origin through a Latin word ‘Alimonia’ meaning sustenance. In general practice, alimony is given as an allowance or amount which a court orders the husband to pay to the wife for her nourishment and support.
What is Alimony?
Alimony is one form of maintenance, support or sustenance to a spouse provided by another spouse after divorce. It is a type of financial support and it is generally given when a spouse does not have adequate means to take care of his/her life. This is seen as an obligation by law in almost all countries. This right to claim financial support was not quite familiar before a few years among Indian women. Although according to law, alimony can either be given to a wife by a husband or vice versa but usually according to Indian circumstances, in most cases it is required to be awarded by the husband to his wife. But it is generally expected that both the wife and husband have to be ready in providing maintenance during and after the marriage because in the present era men and women are treated equally and hence the burden falls on both of them. But as it is already mentioned in practical cases husbands are made liable to maintain and support their wives. In cases where the wife is in a better financial position than the husband, then it may be difficult for her to get alimony.
After divorce, either of the spouses can claim alimony from the other. It will be granted by the court after considering few circumstances, financial ability, and status of the spouses being the main condition. Similarly, this law on Alimony and maintenance differs according to the personal laws of their religion. According to Section 25 of the Hindu Marriage Act, permanent alimony is given by the court to the wife or even to the husband for her or his support and maintenance. If a wife is employed but earns only a minimum sum of money and still there is a considerable difference between her and her husband’s net earnings, in that case, the husband still is ordered to give alimony to help her maintain the same standard of living as her husband.
In cases where the wife is unemployed and does not earn even a penny to take care of her, the court will then look into her age, educational qualifications and her capacity to decide the amount of alimony. In cases where the husband is incapable of earning or being a disabled person is under no capacity to learn but the wife is earning, then the court grants alimony to the husband.
When does the court grant Alimony?
- Alimony can only be granted to a spouse if the person is already not receiving any financial aid or support during the time of divorce. This basic rule can be revised by arguments claiming support.
- When there is no understanding between the couples regarding alimony, then in such situations, the court can decide as to what is the quantum of Alimony.
- Age of the spouse is considered to be one of the important criteria before awarding alimony. If the spouse seeking alimony can earn in future and if the court foresees that she will be able to have a prospective career and job in future, then alimony will be granted for a short time.
- The amount given will be fixed by the court and it generally depends on the duration of marriage. Marriages that lasted more than 10 years are mostly entitled to be granted a lifelong alimony after considering all other important factors.
- If the spouse who is in the position to provide alimony to the affected spouse is a financially sound person with high earnings, then he/she is entitled to pay a larger amount as alimony to the other spouse.
- The higher earning spouse with a prosperous career is entitled to pay more than a spouse with economical problems. This is given to keep husbands and wives in the same economic space.
- If any of the spouses is not in good health, and if that spouse has been separated by the other one, he/she is subjected to higher payment of alimony.
Like any other subject of the law, the conditions and procedures of payment of alimony in India vary from one personal law to another.
What is the Difference between Alimony and maintenance?
Both these terms refer to financial support given by one spouse to another in the events of divorce. The common understanding according to Indian law is that both these terms are interchangeable. However, they both refer to some kind of financial support, the applicability of alimony and maintenance are different.
Maintenance is a type of financial support given by one spouse to another on a monthly or annual basis. Whereas, In India, Alimony generally refers to a one-time payment made to one of the spouses who is financially incapable of taking care of themselves.
Alimony in Mutual Consent Divorce
Alimony is mostly given in divorce by mutual consent when the husband and wife decide to separate mutually and lay down the terms of their divorce and other necessities required in their lives separately. Legal formalities like alimony/maintenance, child custody, and division of assets will be settled amicably during
In a contested divorce, an alimony petition can be invoked against the other spouse. Before the court awards alimony and maintenance, various factors mentioned above are taken into consideration. Both Alimony and maintenance are terminated when either of the parties gets deceased. The amount of money given can also be modified at a later date, where the circumstances of the spouse changes in the future.
The alimony amount can either be taken as a lump sum amount, or it can be fixed as a payment on a monthly or quarterly basis which purely depends on the requirement of the recipient. Alimony is recommended where the recipient requires the entire amount at once and to avoid potential loss of future payments if the spouse loses their job or dies.
How is alimony calculated?
Alimony can be divided into two parts namely, the amount of maintenance given during the court proceedings and the amount provided during the official separation of the parties. According to the guidelines of the Supreme Court of India, alimony can be paid every month, with 25% of the husband’s net monthly salary as the benchmark amount that should be granted to the wife. This amount was considered to be “fair and equitable” to be given as alimony. This might vary from case to case but there is no such benchmark for one-time settlement. The amount usually ranges between 1/5th to 1/3rd of the husband’s net worth.
Under the Hindu Marriage Act, 1955 and the Hindu Adoption and Maintenance Act, 1986 the alimony is calculated following the Party’s salary or income, Party’s property details, Revenue and other related properties of the applicant, conduct of both the parties, etc. Any liabilities of the husband have to be taken into consideration in case of dependent parents and few factors like age and health of the parents. Under these acts a woman can live separately from her husband without giving up her claim of maintenance if the wife was abandoned by the husband without her consent and if there has been any abuse on the part of the husband which has led to emotional distress in the wife’s mind and that she can no longer stay with her husband.
If the husband suffers from any form of incurable disease, when he converts from Hindu religion to another and if there are any other good reasons for separation, the wife can get money by staying separately. However, under the same act, the wife cannot claim alimony if she gets converted to a different religion from Hindu. If a wife leads a traumatic life, then she can claim maintenance from her husband under the Code of Criminal Procedure which gives her a temporary maintenance right. After the court passes the order of Alimony to be paid, the supporting spouse has to pay alimony within the time prescribed by the court. In case if the payments are not made in time, then the consequences arise where the court will involve and take further action against the spouse, such as imposing penalties.
Hence, it will vary along with different factors that depend on the specific circumstances and facts of the case. After considering various parameters, the final step will be to grant the amount of alimony or sustenance by the court.