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Alimony and child maintenance calculation in contested divorce

I have decided to go for contested divorce after 13 years of marriage and has a daughter of 5 years old. The ground of divorce is cruelty by my wife on me , psychologically , physical abuse. Now I am trying to make an approximate about how much I have to pay in terms of alimony and child maintenance as per Indian law. I want to give a brief about my finances and my wife's finances. I am a doctor earning 1.30 lakhs per month and she is a freelancer yoga teacher. By qualification she has done physiotherapy but she is not joining any regular work so that she can extort money from me....she is not working since 2 years because of baby and before that she was working in hospital for 10 years continuously. She belongs from a rich family where without any fixed income every month , she easily pays 4 lacs insurance premium and me even after earning 1.30 lakhs every month, can't go more than 50k yearly insurance premium because of my liabilities. Her complete financial profile is worth of 4 Crores if I add her property , savings , mutual funds, provident funds whereas my financial profile is hardly 1 crore after combining what I have. So my question are - 1. As she is educated, financially well capable , though doing freelancing job- do I still have to pay her alimony like alimony to wife ? Or if her cruelty towards me is proved and established in court with all the evidences I have, Can court ask me not to pay anything to wife and pay only to child because I don't want to pay her anything and want to pay only for my daughters maintenance as she will live with her mother ? 2. Incase court take decision and ask me to pay wife as well as daughter - how much do I have to pay , if you guide me with an approximate figure or calculation. ( I earn 24 lacs yearly, has a flat on EMI of 20k, has PPF of 6.5 lacs and mutual fund of 20 lacs and a also got a portion of maternal home worth 25 lacs ). 3. Also out of all this I offered my wife that I will give her 20 lacs cash and the flat but she is not ageeing and because the flat is in under construction she is saying even if I pay the complete payment of the flat in advance and give her a loan free flat , still she won't give me divorce till she doesn't get the possession of the flat and builder said the possession will be after 3 years. So I am stuck. I want to know will court also ask me to wait till possession of the flat for the divorce to happen or court will ask me to find out other option like giving cash within my capacity because when I ask my wife to take cash instead of waiting for flat possession, she asks me to give her 1 Crore cash which I can't give ? 4. It's a 11 years old marriage , wife is 37 years old , daughter is 5 years old, I want to give one time payment only and don't want to go for monthly maintenance... So whether it's only for daughter or for both, can court force me to give monthly maintenance throughout life or court will listen to me also and accept my one time settlement ? 5. Incase court ask me that I don't havevto give wife anything but I have to give child maintenance monthly wise. How much can that be just for child maintenance in terms of percentage if I get 1.30 lacs per month ?can court ask me to pay this amount whole life or there is certain age till when I have to pay? 6 before deciding the child maintenance too, will court see the financial status of my wife or child maintenance will be only my responsibility even when my wife also has so much ? Please help as my wife is just in a state of mind to extort money from me and make my life hell

( Amrawati, Maharashtra )

3 years ago

Reply

Hi,
If your marriage is governed by the Hindu marriage laws, cruelty as a reason for divorce will not be deemed valid from the husband's perspective. You must pay alimony to her to cover her living expenses. The mother and you will have to agree on who will have custody of the child. Because your divorce is in the works, it's best if you submit your case to the court with all of the evidence you have. The sum that both parties can agree on will be decided by the court.
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Vidhikarya

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Hi,
If your marriage is governed by the Hindu marriage act then the cruelty as a ground for divorce will not be considered to have effect from the point of view of the husband. You have to pay alimony to her, for her maintenance. The custody of the child will depend on the mutual agreement of the mother and you. since your divorce is underway, therefore, it will be better you present your case in front of the court with all the points that you have. The court will decide the amount which is agreeable by both the parties together.
Thank you. Kindly rate the answer.

Vidhikarya

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Initially, a misconception existed that a working woman is not entitled to claim maintenance as she is earning and is thus able to maintain herself. Now, based on the various judgments it is evident that she can claim maintenance even though she is earning. According to the courts, even if the wife is employed, she is entitled to the same status and standard of living which she used to enjoy at her matrimonial home.

If her income is not sufficient in maintaining that same standard of living which she used to enjoy at her matrimonial home, then she is entitled to get maintenance despite being a working woman. As per Courts, the wife gets deprived of many comforts after she leaves her matrimonial home. Sometimes she loses interest in her life due to stress and anxiety and dual responsibility that comes with the divorce. The alimony from her husband can provide her some solace.

Another reason to give maintenance is that the wife’s financial burden gets increased substantially after the separation. Prior to separation, she might be contributing partly towards her family responsibilities. However, post-separation/ divorce, the wife herself has to bear all the expenses. Her income may not be sufficient to bear all those expenses. On this count, the Courts have allowed granting of maintenance to the wives.

Additionally, if the child is in custody of the wife, then the woman would need money to take care of the proper needs of the child. Because the child also needs the same standard which he has enjoyed with his father or would have enjoyed if he stayed with the whole family.

‘Unable to maintain herself’ does not require a wife to be absolute destitute before she can apply for maintenance.

As per the judgment passed by the Supreme Court, alimony amount should not exceed 25% of the husband’s income. The aforesaid limit is applicable in case of monthly payout.
In case of one time payment there is no such benchmark,but it usually varies from the range 1/3 to 1/5 of the Husband's net worth.
Thanks.

Vidhikarya

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A.Dear Sir,
Child custody will be always on the basis of welfare of the child and alimony/monthly maintenance will be decided on the following formula:

Landmark Judgement pronounced by SC dealing with guardianship & custodial and visitation rights to parents and children stuck in matrimonial disputes
In a remarkable judgment dealing with interim custody of child suffering in parent’s matrimonial disputes, visitation rights and guardianship, a 2 judge bench of Supreme Court laid down various propositions of law while awarding the interim custody till final disposal by the trial court to the mother. The bench speaking through Justice Vikramjit Sen, lays down very sharp observations and examines various definitions of a ‘guardian’, ‘visitation rights’ and tests the issue from the angle of provisions of Hindu Minority & Guardianship Act, 1956 and Guardian & Wards Act, 1890.In a custody battle between estranged parents, a minor child, who has not completed five years of age, shall be allowed to remain with the mother, the Supreme Court has ruled saying that in such cases child should not treated as a "chattel". The court said that under Hindu Minority and Guardianship (HMG) Act, a father can be guardian of the property of the minor child but not the guardian of his person if the child is less than five years old.
The Court said that there can be no cavil that when a Court is confronted by conflicting claims of custody there are no rights of the parents which have to be enforced; the child is not a chattel or a ball that is bounced to and fro the parents. It is only the child's welfare which is the focal point for consideration. Parliament rightly thinks that the custody of a child less than five years of age should ordinarily be with the mother and this expectation can be deviated from only for strong reasons.

HOW TO CALCULATE ALIMONY
Dear Madam,
My answers as follows.
1)what is the max alimony I can claim from him?
Ans: The quantum of maintence must be based of SC judgment which says 25% of salary must be maintenance. Thus it must be calculated as follows
Salary Rs.2 lakhs per month
25% comes to Rs.50,000 multiplied by 12 Months = Rs.6 lakhs per year.
If you live for another 20 years it comes to Rs.6 lakhs multiplied by 20 = Rs. 1crore 20 lakhs.
You get total compensation of Rs.1 Crore Rs.20 lakhs.
2)can I ask for a property?
Ans: You have no right over property but its notional income may be added to the salary .

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Kishan Dutt Kalaskar

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dekhiye aap ki problems bahut hi badi hai. But iska answer bahut hi chhota sa hai.
Aap ka khana hai ki yadi aap apni wife ko divorce dete hai to bharan poshan ke liye kitna amount dena hoga. Aap khud doctor hai. Or aapki kamai bhi thik hai. Aap ko apni wife ko apne social or financial status ke anusar wife ko dena hoga. Kyon ki court koi bhi aadesh parit karne se pahle ye sab cheej dekhi jaati hai.
Aapki wife educated hai or work karne ka diploma bhi kiya hua hai but abhi vah kaam nhi kar rahi hai. Yadi aap ke pass is parkar ki evidence hai tab aap ko uska benefits mil sakta hai. But supreme court ki is par alag alag fìnding hai.
Koi nichit nhi kiya jaa sakta hai ki aap ko kita maintenance dena hoga.
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Vidhikarya

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It is advisable that you go for one time permanent alimony for the wife which you will have to negotiate with your wife of you want to a mutual consent divorce (may be 25 to 50 Lacs) because if the matter becomes contested it will take years to settle and regarding child you may agree to pay around Rs 15,000/- per month till your child becomes 18 year old inclusive of his/her food, medical, recreation etc and additionally you may agree to offer payment towards education of the child till 18 years (school+coaching+activities if any). But again it is a matter of negotiation and if the terms are agreed upon drafting of mutual consent terms should be just perfect to not to raise any issues in the future for either parties including child to open this matter again. Thank you.
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