How to Get Alimony In India?

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. There are two types of alimony generally and the same applies according to the Indian Laws as well: When it's given during the time of the court proceedings, it is a maintenance amount. The second is when it's given after the legal separation. After separation, alimony can be taken either as a one-time lump sum amount or a fixed payment, which could be monthly, quarterly or the like, depending on the requirement of the spouse. Alimony can be taken by either party depending on the case.

How does the court decide on the alimony amount?

The court decides the amount of alimony/maintenance which is to be paid by the respective spouse after examining various parameters like- The income of the spouses, their standard of living and financial status are the factors considered. Spouse's income, investments, and net worth, as well as the financial needs of the individuals, are taken into account. Though there isn't a fixed formula to quantify the amount, generally it is in the range of one-fifth to one-third of the gross earnings of the spouse who has to pay alimony. The number of years the couple has been married, the number of children, and the kind of emotional investment made are also considered. The husband can request a stopping of payment or reducing the amount if the wife manages to get another source of income.

Wife is earning: Court looks into husband's financial status. If his income is very high, the wife will get some alimony.

Wife is not earning: The wife will get alimony that allows her to maintain a standard of living that is similar to that of her husband.

Wife remarries: Wife will not get anything. Husband will have to continue to pay for children if any. Husband is disabled and unable to earn: Wife can be asked to pay alimony.The terms and conditions of payment of alimony in India vary from one personal law to another. None of the Indian personal laws are spared from criticism due to the existence of laws in framing definite rules for granting alimony.

While choosing the mode of payment, the lump sum is a preferred option. Lump sum gives certainty. A regularly fixed payout can stop after a while due to reasons like the supporting spouse losing his or her source of income or death. The lump sum amount is not taxable as you get it as capital receipt. However, if investments made from this amount earn returns, the return is taxable. The monthly payment route is taxable to the spouse who gets it. Once the court passes the order, the supporting spouse has to pay alimony which was decided. If payments are not made on time, there are consequences where the court can take further action against the spouse.Alimony is the right of a spouse, i.e. either the husband or the wife to get maintenance after divorce. In India alimony is governed according to personal laws which means that the alimony laws for different religions are different. Let us look into how alimony is governed by different personal laws.

Alimony under the Hindu Law

As per this law, any court exercising its jurisdiction may, on the application of wife or the husband, can order to pay the applicant its maintenance and support such a gross sum or such monthly sum. This also means that the alimony that is allowed should be within reasonable limits and should not be beyond the capacity of the other spouse. There are certain things that the court keeps in mind while deciding how much alimony to give. They are as follows:-

• Income of the party who has to pay the maintenance amount

• Property of the party against whom alimony has been claimed

• The income and other property of the applicant

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

If the court is satisfied that there is a change in the circumstances of either party to the case, then it may at any time rescind, vary or modify in any such order in such manner as the court may deem just. Also if the party in whose favor the alimony has been granted remarries or the husband has intercourse outside the wedlock then the court may again modify or vary the order. As per the Hindu Marriage and Adoption Act, 1956 the Hindu wife is allowed to live separately and is also entitled to maintenance or alimony from the husband if the following have been fulfilled:-

• If the husband abandons her for no reason without her consent

• If the husband treats her with cruelty

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

• If the husband has any other wife living

• If the husband keeps a concubine in the same house

• If the husband has converted to another religion

• If there is any other cause for the wife living separately

The only condition when the woman will not be given the alimony is when she is unchaste or has converted to some other religion. According to the Code of Criminal Procedure section 125 , the grant of interim maintenance can be given. In certain cases, the apex court has even said that alimony can be given even before the case is disposed of.

Alimony under the Muslim Law

As there are different provisions in Hindu law, the same is the case with Muslim law . Therefore, any party to the marriage will have to first decide which law to use for getting the alimony. Mostly in Muslim law, women are given the right to alimony and not men. They can approach the court for alimony under the Muslim Women Protection of Rights on Divorce Act, 1986 After getting divorced a Muslim woman is entitled to the following:-

• A reasonable and fair, maintenance amount is 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.

Also, a woman under Muslim law is applicable to 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

• If there is no one to maintain then the State Wakf board functioning in an area in which the woman resides is bound to pay such maintenance determined by the court.

Alimony under Christian Law

Having looked into the Hindu and the Muslim law of maintenance, let us look into the Christian Law of alimony. Christians in India are governed by the Indian Divorce Act, 1969. Under section 36 of the same act, a woman can claim her right to maintenance or alimony and the husband will be entitled to pay the alimony amount, if directed by the court. This means that similar to Muslim law, Christian law also does not recognize maintenance for men. The section elaborates on the point that whether the suit is presented by the husband or the wife, or whether or not she has obtained an order of protection the wife may present a petition for the expenses of the proceedings and alimony pending the suit. It also observes that the petition so served, will be served to the Husband which means that he will have to bear the expenses. The court on being satisfied with the truth may order the husband for the payment to the wife of the expenses of the proceedings and alimony which it may deem just. It also says that such a payment may be given by the husband within sixty days of the service of such petition on the husband.

Alimony under Parsi Law

Parsis in India can claim maintenance from their spouses through civil or criminal proceedings. The spouse seeking maintenance can either file both criminal and civil cases as there is no bar to it. In civil cases, the religion of the parties is essential as a civil case is governed by the personal laws of the parties, however, the religion of the parties in a criminal case would not matter. The right of a wife to maintenance is recognized by the Parsi Marriage and Divorce Act, 1936. The maximum amount that a court can decree in the pending matrimonial case is one-fifth of the net income of the husband. While deciding the quantum of permanent maintenance the court will bear in mind the ability of a husband to pay, the wife's own assets, and the conduct of the parties. The order for maintenance remains in force until the wife remains chaste and unmarried.

How can a lawyer help you?

If you are going through a divorce and are planning to file for maintenance, a divorce lawyer can help you figure out all your options. You can also use LawRato's Free Legal Advice service to get free advice on your case from expert divorce/matrimonial lawyers. It is always helpful to work out all the options beforehand while planning to file for alimony and an experienced divorce lawyer can help you figure out various complex questions involved with a divorce process, such as quantum of alimony and child custody, etc. Thus, it is always recommended to take the help of an experienced divorce lawyer while filing for alimony.

Advocate Chikirsha Mohanty

4.0 | 2+ user ratings Greater Kailash - 1, Delhi
5 years

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