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How to Calculate Alimony/Maintenance in India

April 14, 2024 हिंदी में पढ़ें


Divorce alimony rules govern the calculation of alimony/maintenance in India which is one of the most important aspects of divorce proceedings,  involving complex legal considerations and financial assessments. Alimony, also known as maintenance, is the financial support one spouse provides to another, no matter the grounds for divorce . In India, determining alimony involves a multifaceted analysis, considering factors like the earning capacities of both spouses, their financial requirements, the duration of the marriage, and the standard of living maintained throughout the marital union.

For in depth understanding of the divorce alimony rules and laws in India, visit LawRato for decisive insights from law guides and excellent legal advice .


What is 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. It can simply be termed as financial support.

Alimony is mainly categorized into the following two types:

  • The maintenance amount is given during the court proceedings.

  • Amount is given at the time of legal separation.


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How is Alimony Calculated in India?

Now, answering the question that “How much alimony does a wife get in India?” , 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. This is suitable for monthly alimony paid by the husband to wife. No such benchmark has been given for a one-time lump sum amount, but usually, this ranges from 1/5th to 1/3rd of the spouse's net worth. However, a hard and fast rule to calculate alimony has not been defined under any Indian law, nor 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 of how alimony is calculated under various Indian personal laws is given below.

Alimony in India can be calculated based upon the following factors:

  1. ?Monthly Incomes of Spouses (Without Tax): These earnings are carefully examined by the court to determine each spouse's financial capabilities and their individual needs for financial assistance.

  2. Educational Backgrounds and Possibility of Paying Jobs: When assessing spouses, their educational backgrounds are carefully reviewed, considering their qualifications and job prospects. If one spouse has a higher education and better job opportunities, they may be expected to contribute more to their financial well-being.

  3. Number of Years of Marriage: The length of the marriage significantly impacts alimony considerations. Longer marriages may lead to more substantial or permanent alimony awards, while shorter unions might entail different considerations.

  4. Number of Children and Child Custody: While considering alimony assessing the financial requirements of the children is crucial. The custodial arrangement (who has custody of the children) can also affect the alimony amount. The custodial parent might be granted more alimony to ensure the children's welfare.

  5. Husband's Income and Status: Assessing husband's income, job, assets, and lifestyle helps ensure that the alimony amount is fair and allows the receiving spouse to maintain a decent living standard.

  6. Liabilities of the Husband: When assessing alimony, considering the husband's financial responsibilities like loans, EMIs, and dependent family members are also important. These factors help determine his ability to pay.

  7. Reasonable Needs of the Wife: The court also takes the needs of the wife into consideration and such which go beyond just the basics. This includes considering whether she has children living with her and what their needs are. The court also looks at her qualifications and ability to earn money to see if she can support herself financially.

  8. Wife Living Separately Without Sufficient Cause: If a wife is living apart from her husband without a valid reason, she may not qualify for maintenance. In the 2019 case of Smt. Teja Bai v. Chiddu Armo in Jabalpur, the High Court ruled that Smt. Teja Bai left her marital home with her child on the grounds of her husband's illness. This however was found to be an insufficient reason to justify living separately from her husband and denied her claim for maintenance.

  9. Professionally Qualified Wife and Capability to Earn: In some cases, a highly educated wife who can work may not get long-term financial support. This happened in the Smt. Mamta Jaiswal v. Rajesh Jaiswal case. Even though Mamta had impressive degrees like an MSc, M.C., and M.Ed, she wasn't employed when they divorced. At first, she received temporary alimony of Rs. 800/- during the divorce process. But later, the court told her to find a job and said that the maintenance money would only be given for one year.


How to Calculate your Probable Alimony / Maintenance

You can calculate how much maintenance is to be given to the wife in India by using the following formula. However, this is not a sure shot and an accurate method.

  1. For monthly payout: You can calculate it as per the monthly salary of the spouse or your salary, depending upon the scenario. Now, calculate 20% and 25% of this amount. The monthly payout sum maybe somewhere between this range.

  2. Lump-Sum Alimony:  For lump-sum alimony, begin by obtaining your spouse's gross earnings or your salary, as applicable. Then, calculate 1/3rd and 1/5th of this gross earnings amount. For instance, if the gross earnings are 100X, the lump sum amount for maintenance may fall within the range of 33X to 20X.

To further understand the calculation of Alimony in India, you may refer to LawRato’s website .

How Is Alimony Paid?

Alimony is often granted to the spouse who earns more to assist the one with a lower income. This financial help can come in the form of a one-time payment or regular payments over an agreed-upon period. The determination of alimony amounts also hinges on factors such as:

Temporary alimony: Also known as "Pendente Lite" alimony, it is financial support provided to the lower-earning spouse throughout the divorce process. Its purpose is to assist them in upholding their accustomed lifestyle during the divorce proceedings.

Rehabilitative alimony: This type of alimony is given to a spouse with a lower income to help them become financially independent through education or training.

Permanent alimony: This alimony is provided in long-term marriages when one spouse has not worked for a significant period.

Reimbursement alimony: This type of alimony is given to one partner for financial assistance in helping the other achieve education or career goals during the marriage.

Lump-sum alimony: This type of alimony is given as a one-time lump sum payment and not periodically.


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In what circumstances will the wife be asked to pay maintenance to the husband?

Divorce and separation maintenance can get complicated. While people often assume it's husbands supporting wives, the law recognizes it's not just about gender. Sometimes, wives might need to support husbands, depending on various factors and legal considerations. If the husband cannot support himself financially during the ongoing legal proceedings under the Hindu Marriage Act, 1955, a court may order the spouse to provide him with Rs. 20,000 per month.

So, it is crucial to remember that decisions on alimony depend on the unique circumstances of each case and the grounds involved.


Types of Alimony

There can be 2 types of Maintenance or Alimony as per when they are paid. These are:

  1. The interim maintenance amount is provided pendente lite i.e. during court proceedings.

  2. The final amount is paid at the time of legal separation. This is usually a lump sum amount.


Alimony under the Hindu Law

The Hindu Marriage Act 1955 and the Hindu Adoption and Maintenance Act 1986 provide provisions for alimony. Under the Hindu Marriage Act , a spouse can seek alimony from the court with jurisdiction over their case, which may consider the following factors:

  • The income of the party from whom alimony has been claimed;

  • The income and other properties of the applicant;

  • Property of the party against whom alimony has been claimed;

  • The conduct of the parties and other circumstances of the case.

Under the Hindu Adoption and Maintenance Act, a Hindu wife has the right to reside separately from her husband without relinquishing her entitlement to maintenance. Alimony is granted to her on the following grounds:

  • If the wife has been deserted and is being wilfully neglected by the husband without her consent,

  • If the wife has been subjected to cruelty by her husband and there is apprehension in her mind of potential harm and injury,

  • If the husband suffers from a severe form of leprosy,

  • If the husband has another existing marriage,

  • If the husband is engaged in an extramarital who is living in the same house as his wife or in a different home with him;

  • If the husband converts to another religion from Hindu,

  • If there are other valid reasons for her living separately.


In seeking maintenance under Hindu law, a wife may face denial if seen as unchaste or upon converting from Hinduism. Alternatively, she can pursue interim maintenance through the Code of Criminal Procedure. Consulting an experienced divorce lawyer is crucial for navigating complexities like alimony and child custody.


Alimony under the Muslim Law

A Muslim woman has the option to claim maintenance under the Muslim Women (Protection of Rights on Divorce) Act, 1986 , or the Criminal Procedure Code. The former facilitates maintenance for Muslim women post-divorce, specifically during the iddat period, which is the waiting time after divorce.
Under the Act, they are entitled to the following benefits:-
 

  • Maintenance amount to be paid within the iddat period to be reasonable;

  • An amount equal to mehr or dower agreed at the time of marriage;

  • Ownership rights to properties gifted to her prior to, during, or after marriage by the husband's relatives, friends, or family;

A woman under the Act shall only be eligible to get maintenance if:-

  • She is eligible for maintenance if she remains unmarried and cannot sustain herself after iddat.

  • She has children and is unable to maintain them and perform her duties towards them;

If no one can provide maintenance for a Muslim wife, the State Wakf board in her residential area must cover the expenses determined by the court.


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Alimony for Christians in India

The Indian Divorce Act 1969 governs Christians and does not recognise maintenance for men. Under this Act, the wife can petition for expenses and alimony during the proceedings, with the husband liable for these costs if ordered by the court. Alimony calculations in India lack a standardised formula, but courts often set amounts at around 1/3rd or 1/4th of the spouse's income. Additionally, the maintenance can be adjusted based on changing circumstances, such as the recipient spouse's remarriage.


When can an Application for Alimony get Rejected?

If the husband's inability to maintain himself is proven, the alimony application may be denied. Similarly, vague statements regarding the other party's income could lead to rejection. Additionally, if it's evident that the party seeking alimony has sufficient means to support themselves or holds a high-paying job, the application might be dismissed. Lack of proof regarding either spouse's income could also result in application rejection.


Taxability of Alimony

The Income Tax Act does not explicitly deal with the taxability of alimony, but previous court rulings offer insight. Lump sum alimony payments are deemed capital receipts exempt from taxation under the IT Act. However, recurring alimony payments are treated as revenue receipts, constituting taxable income for the recipient.
 

Cases where Hindu wives don't qualify for alimony Under the Hindu Adoption and Maintenance Act:

If a Hindu wife acts unchaste or changes her religion, she will not receive separate housing or financial support from her husband. However, things does not remain same when a wife lives alone and raises her children without any help from her husband, as in the case of Meera Nireshwalia v. Sukumar Nireshwalia, AIR 1994 Mad 168, the court recognized this situation and approved separate housing and financial support for the wife. It was held that a wife can ask for support from her husband even if she does not meet all the conditions in section 18(2) clauses (a) to (f). If she cannot prove all her reasons, she can still get help.
 

Supreme Court sets alimony benchmark: 25% of ex-husband's net salary

In the case of Kalyan Dey Chowdhury vs. Rita Dey Chowdhury, the Supreme Court established a fresh precedent for alimony arrangements in divorce proceedings, now obligating the husband to allocate 25% of his after-tax income to his former spouse as alimony.

The ruling highlights the significance of offering financial assistance to divorced or separated spouses, with a particular focus on women, to help them maintain a dignified life. This is demonstrative of a dedication to safeguarding the financial stability of individuals navigating the difficulties of divorce.


How can a Lawyer help you?

Divorce brings immense stress, but hiring an experienced divorce lawyer can make the process easier. They handle paperwork and provide expert guidance, drawing from years of experience. Utilising services like LawRato's free legal advice connects you with seasoned divorce lawyers, ensuring informed decisions. A divorce lawyer's expertise helps avoid costly errors and delays, expediting the divorce process efficiently.



These guides are not legal advice, nor a substitute for a lawyer
These articles are provided freely as general guides. While we do our best to make sure these guides are helpful, we do not give any guarantee that they are accurate or appropriate to your situation, or take any responsibility for any loss their use might cause you. Do not rely on information provided here without seeking experienced legal advice first. If in doubt, please always consult a lawyer.


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