- Understanding the concept of divorce alimony.
- Analyzing the alimony under various laws.
- Remedies if alimony is refused.
Divorce is indeed a painful phase suffered by an individual. However, if we try to look this phenomenon more closely, we observe that in most of the situations, the sufferer is the female spouse, as she is dependent on her man even for the smallest of things like food, clothing etc. Therefore, after divorce, it becomes difficult for a woman to survive or to ‘maintain’ herself. Therefore, the concept of alimony was introduced in various legislations, which is a kind of financial support given to a woman after divorce. However, in some cases, it is also given to husband by wife. The article thus discusses this concept in detail as well as the remedies if the alimony is refused.
WHAT IS DIVORCE ALIMONY?:-
The term alimony is derived from the word ‘alimonia’, meaning sustenance. Therefore, the monetary support given by one spouse to the other spouse is referred to as the divorce alimony. This concept was introduced in order to make the single life more accessible as well as to assist the financially dependent spouse in maintaining a respectable standard of living. The alimony is given either every month in the form of a lump sum payments or recurring installments as decided by court or by the need of the separating spouse. Just for an example if we take, if one spouse is earning more than the other, or the other one is not capable of earning by their own, then it is the duty of the other to maintain the financial imbalances, even after marriage. The alimony is of two types:-
- Pendente Lite:-
This type of alimony is also known as interim or temporary alimony. It has its mention in section 24 of the Hindu Marriage Act, 1955. It is given during the divorce process and is intended to support the dependent spouse until the divorce process is finalized.
- Permanent Alimony:-
The long-term or permanent alimony has its reference in section 25 of the Hindu Marriage Act. It is granted when the court feels that the other spouse has a strong need of financial support after the divorce. Therefore, it is intended to be given to maintain the same standard of living of the other spouse as they did during the course of marriage. In a nutshell, we can say that this provision comes into use after the final decree granting substantive relief or at anytime afterwards.
ALIMONY UNDER VARIOUS LAWS:-
- Hindu Marriage Act, 1955:-
Among the Hindu personal laws, the alimony is primarily governed by the Hindu Marriage Act, 1955. The act, however does not specified any amount for alimony neither it has given any formula for calculating the same. However, the following considerations affect the quantity of such maintenance:-
- The length of the marriage.
- The financial condition and behavior of both spouses are discussed.
- The capability of the spouse requesting maintenance to earn.
- Education and support are necessary for all children.
- Other requirements of the claimant.
The case of Dinesh Mehta vs. Usha Mehta (1978) deals with determining a reasonable amount of maintenance. The Bombay High Court in this case held that, “determining a reasonable amount requires establishing a compromise between many conflicting claims”.
- Hindu Maintenance and Adoption Act, 1955:-
This act contains provisions for permanent alimony. Section 18 of the act gives the wife the power to claim financial financial support from her husband in the following cases:-
- If a husband abandons his wife without any valid reason, without her knowledge or agreement, against her desires, or if he neglects her willfully, then the wife will be entitled to get alimony by the husband.
- If the husband has been cruel to the extent that wife has developed a reasonable fear of damage or injury from living with him.
- If the husband a living second wife.
- If the husband regularly maintains a relationship with a concubine elsewhere or has kept one in the same house where his wife dwells.
- If the husband has lost his hindu identity by conversion or any other means.
- Any other valid reason.
- Muslim Women (Protection of Rights on Divorce) Act, 1986:-
Section 3 and section 4 of the act talk about alimony under muslim law. Section 3 entitles a divorced woman for a reasonable and fair maintenance from her ex-husband. An appropriate amount of mahr or dower at the time of marriage or the sum of money thereafter defined in marriage contract is included in this clause. It also covers property or assets given to the woman at the time of marriage.
Section 4 of the act makes it mandatory for a husband to pay the maintenance allowance for support and maintenance of her former wife throughout her iddat period. The case of Daniel Latifi vs. Union of India is one of the landmark judgments given by the apex court regarding the maintenance. The hon’ble court made the following observations:-
- The muslim husband, according to section 3 of the act is liable to pay maintenance allowance to his wife even after the iddat period is served.
- If a woman has divorced her husband, then according to the provision of section 4 of the act, she is entitled to get maintenance by the family members listed in the section, who will be entitled to her estate after her death.
- If none of the relatives are able to maintain her, then she is allowed to get maintenance from the wakf board.
A muslim woman can lose her right to maintenance under the following conditions:-
- If she blatantly deserts her marital residence and her spouse.
- If she elopes with a different man.
- If she is behind the bars.
- If she ignores reasonable instructions from her husband.
- If she consents to divorce to facilitate the second marriage of her husband.
- Indian Divorce Act, 1869:-
The Christian population can claim for alimony under this act. Chapter IX of the act talks about the alimony provisions. Section 36 of the act gives the court the authority to decree child support and custody. The main points of the section are as follows:-
- The court has the power to issue orders for either spouse’s or children’s support, during the course of the divorce process.
- The amount of maintenance is also decided by the court.
- In the situations where a child’s custody is in dispute, then in such cases, the court has the authority to determine custody arrangement, including visitation privileges, maintenance payments and educational costs.
Section 37 of the act deals with the ability of the court to impose alimony and maintenance orders that lasts lifetime:-
- The court can order either spouse to grant alimony permanently in any divorce procedure.
- Various criterions such as the length of the marriage and other needs may be taken into consideration by the court while determining the amount of such maintenance.
- The amount may be deducted if the spouse is found to have committed any matrimonial offence.
- Depending upon the facts and circumstances of the case, the court may mandate the payment of alimony either in lump sum or in continuous installments.
- The court may alter this amount if the financial situation of either party changes after the initial judgment of the court.
- If the spouse who is directed to pay the amount of alimony refuses to give such amount, then court may make him pay this amount by seizing his income or assets.
It is to be noted that the provisions under this act are not gender neutral, they are intended to favor woman, but may in exceptional circumstances favor men.
- Parsi Marriage and Divorce Act, 1936:-
As the name suggest, the act talks about granting alimony to the Parsi people. Section 39 and 40 of the act talks about the temporary and permanent maintenance respectively, and are comparable to sections 24 and 25 of the Hindu Marriage Act, 1955.
- Special Marriage Act, 1955:-
It is a secular act where people of any religion can get marry. Here, the concept of temporary and permanent alimony is covered under section 36 and 37 of the act respectively. However, it is to be noted that it does not have provisions for granting alimony to the husband.
- The Code of Criminal Procedure, 1973:-
The provisions of the code are applicable to all religions in India regardless of the personal laws. The maintenance under this code is governed by the provisions of section 125 of the code and is enforceable by all cases and communities of India.
GROUNDS FOR GRANTING ALIMONY:-
- In the cases where the alimony is paid irregularly, it is fixed at 25% of the husband’s monthly income. However, this rate may vary from case to case as every case has different facts and circumstances.
- For the cases where the alimony is being paid in one single sum, there is no predetermined benchmark determined. However, in most of the cases it can be around 1/5th or 1/3rd of the husband’s total net assets.
- If the wife is making a good amount of income, then the income of both the spouse is considered while deciding the amount of alimony. In some cases, the alimony may not be granted.
- In the cases, where the income of a hindu husband is lesser than that of his wife, tehn he may ask his wife for alimony.
WAYS TO AVOID ALIMONY:-
- A person can set the divorce conditions through an agreement, preventing their spouse from requesting the financial support from them.
- Proving before court that the other spouse earns more than the one who is entitled to pay the allowance.
- Through negotiation with one’s ex-spouse regarding the reduction or elimination of alimony payments.
- If the recipient started a new relationship, then in such cases, it is not necessary to pay the alimony by the former spouse.
CAN HUSBAND BE ALSO GIVEN ALIMONY?:-
It is a matter of concern that no personal law, except the hindu law contains the provisions relating to the maintenance of the husband. Therefore, a hindu husband can ask for maintenance from his former wife through the provisions mentioned above. However, in other personal laws, the husband may be granted alimony only in some exceptional circumstances.
REMEDIES IF ALIMONY IS REFUSED:-
In the cases where the husband refuses to pay the alimony, then in such cases, he is given a deadline by the court to pay the remaining allowance and if he still continues to do the same, then he will be entitled for the imprisonment for the time period as decided by the court.
The marriage is considered to be a holy sacrament between a man and a woman. However, the present generation has destroyed the essence of this beautiful relationship and there have been many divorce cases in the past few decades and this has led the female spouse in suffering as she is the one who is dependent on the male spouse in many ways. However, the laws, the court rulings and other such actions have helped a lot in restoring the rights of the females. But their full efficacy won’t be attained unless fundamental attitudes are changed. Despite the fact that the maintenance should benefit both, husbands and wives equally for the sake of society as a whole, many women continue to be denied their legal maintenance entitlements. To produce a noteworthy and fruitful result, it is essential to ensure that the law is implemented correctly and following the legal criteria.