The underlying truth about marriage is that once the couple ties themselves in this sacred bond, they become obligated to support each other and whatever may be the grounds for divorce later, the obligation still continues and is known as ‘Alimony’.
Alimony is a monetary compensation granted to the spouse, who is unable to support himself/herself, by the other spouse during or after the divorce proceedings. The right to receive alimony depends upon the earning capacity of the person who is economically dependent on the marriage. The recipient can be a spouse, dependent children, and even poor parents.
Alimony is mainly categorized in the following two types:
The Supreme Court in one of its landmark judgments has set a benchmark for maintenance to be paid by a husband to his estranged wife, stating that 25% of the net salary of the husband might constitute a “just and proper” amount as alimony. However, a hard and fast rule to calculate alimony has not been defined under any Indian law, neither is it possible as it depends on the facts and circumstances of each case.
In India, alimony is governed as per the personal laws of the individual getting a divorce as well as under the provisions of the Special Marriage Act. A tour as to how alimony is calculated under various Indian personal laws is given below:
Under the Hindu Law, provisions for alimony have been laid down under the Hindu Marriage Act, 1955 and the Hindu Adoption and Maintenance Act, 1986. As per the Hindu Marriage Act, a spouse can make an application for alimony to the court having jurisdiction to decide their case and the court can order either the husband or wife to pay the applicant, maintenance based on the following points:
Under the Hindu Adoption and Maintenance Act, a Hindu wife is entitled to live separately from her husband without forfeiting her claim to maintenance and alimony will be granted to her on the following grounds:
However, a wife claiming maintenance under the Hindu Adoption and Maintenance Act may be denied alimony if she is unchaste or has converted to a different religion than Hindu. An estranged wife can also claim maintenance from her husband under the Code of Criminal Procedure which also gives her the right to interim maintenance.
A Muslim woman can claim maintenance either under the Muslim Women (Protection of Rights on Divorce) Act, 1986 or under the Criminal Procedure Code. The Muslim Women (Protection of Rights on Divorce) Act provides for maintenance for Muslim women only after the divorce has been granted. The wife is entitled to claim maintenance from the husband which must be made during the iddat period.
They are entitled to the following benefits under the Act after divorce:-
A woman under the Act is only eligible to get maintenance if:-
The Act further states that if there is no one to maintain the Muslim wife then the State Wakf board functioning in the area in which the woman resides is bound to pay such maintenance as determined by the court.
Christians in India are governed under the Indian Divorce Act, 1969. Similar to Muslim law, the Indian Divorce Act also doesn’t recognize maintenance for men. Under the Act, if a suit for divorce has been instituted either by the husband or the wife, the wife can file a petition for expenses of the proceedings and alimony during the pendency of the suit and the husband would be liable to pay the cost if an order has been made in this regard by the court. The Act also states that such an application shall be disposed of within sixty days of it being presented.
Thus, it is evident that there is no formula determined to calculate the alimony under Indian laws. In most of the cases, the alimony has been fixed by the court at 1/3rd or 1/4th of the spouse’s income. It is also noteworthy that an order for an award of maintenance made earlier can subsequently be varied, modified or canceled if the court is satisfied that there has been a change in circumstances of the parties, such as the marriage of the spouse in whose favor alimony was granted.