How to Calculate Alimony/Maintenance in India

हिंदी में पढ़ें
May 04, 2019
By Advocate Chikirsha Mohanty



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’.

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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.

Alimony is mainly categorized in the following two types:
 

  • Maintenance amount given during the court proceedings.
     

  • Amount given at the time of legal separation.
     

How is Alimony calculated 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. 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:

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Alimony under the Hindu Law

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:
 

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

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

  • The income and other properties of the applicant;
     

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

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:
 

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

  • If there has been cruelty on part of the husband which has caused a reasonable apprehension in the wife’s mind that it is harmful or injurious to live with her husband;
     

  • If the husband is suffering from a virulent form of leprosy;
     

  • If the husband has another subsisting marriage;
     

  • If the husband has an affair with another woman out of marriage who stays in the same house as his wife or in a different house with him;
     

  • If the husband has changed his religion from Hindu to another;
     

  • If there is another justifying cause of her living separately.
     

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.
 

Alimony under the Muslim Law

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 reasonable and fair, maintenance amount to be paid within the iddat period;
     

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

  • A title to all the properties given to her either before or at the time of marriage or during her marriage by any of the relatives’ friends or family of the husband.
     

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

  • She has not remarried and is not able to maintain herself after the iddat period;
     

  • She has children and is not able to maintain them and perform her duties towards them;
     

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.

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Alimony for Christians in India

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. 
 

How can a Lawyer help you?

Divorce is a stressful time for everyone involved. Hiring an attorney to complete a divorce is one way to reduce the stress of the divorce. While the attorney will need to gather information from you regarding the case, he or she will also take care of all the paperwork, allowing you more time to take care of yourself and your family. An experienced divorce attorney can give you expert advice on how to handle your divorce owing to his years of experience in handling such cases. You can also use LawRato's Free Legal Advice service to get free advice on your case from expert divorce/matrimonial lawyers. A divorce lawyer is an expert on the laws and can help you avoid significant mistakes that may cause financial harm or will require future legal proceedings to correct. Thus, by hiring an attorney a person can make sure that he can avoid delay and get the divorce completed as quickly as possible.



 

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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