Alimony in Indian Divorce Law

Divorce is a life change that impacts people in terms of their emotions, their rights, and also their assets. As for divorce, alimony is one of the most discussed and the most sensitive aspects of the whole process. Maintenance or alimony in the context of India is regarded as a legal duty where one party spouse is bound to pay a certain amount to the other. This blog will explain what alimony is, its legal position in India, The criteria for fixing the compensation, and answer some of the frequently asked questions on alimony. 

What is Alimony? 

Alimony also referred to as spousal support or maintenance refers to a monetary obligation met by one spouse to the other upon dissolution of marriage. Thus, the primary goal of alimony is to ensure that the dependent spouse has the same standard of living as he/she used to have during the marriage. Alimony does not come as a given and must be claimed by the seeking spouse. 

Types of Alimony 

There are primarily two types of alimony in Indian law:

• Interim Maintenance: Financial assistance is offered for a temporary basis especially when the couple is in the process of getting a divorce. 
• Permanent Alimony: An award of money made as a part of the divorce final judgment; money paid at once or periodically. 
  
  

Factors Influencing Alimony Awards 

Courts consider various factors when determining the amount and duration of alimony, including: 

• Length of the Marriage: Furthermore, marriages that have been in existence for a longer period are likely to yield a favorable result more often than not the alimony awards. 
• Financial Status of Both Spouses: It checks the income generating factors, the assets, and the liabilities for each of the two parties.
• Standard of Living: Factors considered are the lifestyle that was earned during the marriage to ensure that after the divorce, the dependent spouse can still be able to earn the same lifestyle as he or she used to enjoy during the marriage. 
• Health and Age of Both Parties: The physical and/or emotional condition of either the husband or wife can also be a factor in the award of alimony.
• Conduct of Both Parties: The court may review the conduct of separated couples during the marriage and after they decide to separate.
  
  

Legal Framework for Alimony in India

Maintenance, also known as alimony or spousal maintenance, is an important part of the diversified matrimony process among various religions in India. There are provisions for maintenance that are provided under the different personal laws which are as follows: 

Hindu Law

In Hindu Law, the laws relating to alimony and maintenance are incorporated in Hindu Marriage Act, 1955 and Hindu Adoption and Maintenance Act, 1956. The laws apply to the Hindus, Buddhists, Jains, and Sikhs. 

Hindu Marriage Act, 1955

Alimony During Divorce Proceedings (Interim Maintenance): Either spouse can claim interim maintenance during the proceedings of Divorce under Section 24 of the Hindu Marriage Act. The court looks into the applicant’s financial requirements and his/her ability to earn while arriving at an adequate amount of interim maintenance. 

Permanent Alimony: Section 25 of the Act makes provisions for either of the parties to seek permanent alimony and maintenance, which could be either periodic or lump sum. The court’s concern is the income, property, and behavior of both spouses and anything the court considers appropriate. 

Hindu Adoption and Maintenance Act, 1956

Maintenance Rights: This Act is particular with the rights of a Hindu wife, children, old parents, and widowed daughters-in-law to claim maintenance. A Hindu wife can claim maintenance even if she does not seek divorce if she is living separately on reasonable cause.

Muslim Law

There are provisions in Sharia law to allow a wife to receive her maintenance (Nafaqah) during marriage or after the dissolution of marriage. These rights are further explained under the Muslim Women (Protection of Rights on Divorce) Act, 1986, and mostly relate to the rights of a divorced woman. 

Nafaqah (Maintenance During Marriage)

Islamic rights entitle a wife to maintenance and nourishment of marriage including food, clothing, and shelter from her husband based on the resources of the husband. 

Post-Divorce Maintenance

Iddat Period: According to Shariah a Muslim wife after divorce can claim periodical maintenance for the period of iddat, which is generally about three months. The husband is expected to provide her with financial necessities during this period. 

The Muslim Women (Protection of Rights on Divorce) Act, 1986

This Act was passed in light of the Shah Bano judgment for the protection of the rights of Muslim women after divorce. According to this law, a woman from the Muslim community has right to receive ‘fair and reasonable provision’ and maintenance during the iddat period. Also, she can claim maintenance from her relatives or the Waqf Board in case she cannot maintain herself after the iddat period. 

Christian Law 

Christian marriages and divorces in India are covered under the Indian Divorce Act, 1869. The Act has elaborate provisions about alimony and maintenance. 

Interim Maintenance (During Divorce Proceedings)

Section 36: A Christian wife can apply to the court for maintenance during the divorce proceedings. This is expected from the husband depending on his income and the needs that the wife may have.

Permanent Alimony

Section 37: Where there is a decree of divorce, the court may grant permanent alimony to the wife. The factors based on which the court decides on the amount of alimony include the capacity of the husband to pay the financial status of the wife, and any misconduct on the part of the wife. In this case, alimony can either be a one-off payment or a regular monthly payment. 

Parsi Law 

The Parsi Marriage and Divorce Act, 1936 regulates marriage and divorce among the Parsis and also provides for maintenance. 

Interim Maintenance

Section 39: In divorce proceedings, the Parsi wife has a right to apply for temporary maintenance which will be ordered by the court depending on the needs and income of both parties. 

Permanent Alimony

Section 40: The wife can claim permanent alimony by the court, after the period of separation. Alimony is determined based on the financial capabilities of the applicants, their quality of life during the marriage, and other circumstances. Alimony can be awarded to be paid all at once or in installments. 

Special Marriage Act, 1954 

The Special Marriage Act, 1954 governs marriage between parties of different religions or different castes and thus it is secular. This is done in cases of divorce and the Act has provided for the grants of alimony and maintenance. 

Interim Maintenance

Section 36: As in other personal laws, the wife under the Special Marriage Act is also entitled to interim maintenance during the subsistence of the divorce petition. 

Permanent Alimony

Section 37: Either spouse may be ordered to pay permanent alimony to the other after the action for divorce has been commenced. There are factors including the earning ability of each spouse, assets, and financial situation, and conduct of the parties during marriage. The alimony can be paid as a one-time payment or can be paid under a set schedule.

Conclusion

Maintenance is a significant component of divorce law in India for ensuring that the economically vulnerable partner does not bear the burden of the split. The law acknowledges the efforts made by the two spouses in the course of the marriage and seeks to redress the situation. But alimony is also one of the most disputed forms of settlement that should be managed with proper legal consultation. People need to know about the aspect of the law that deals with alimony, the various categories of alimony, and the conditions that may lead to asking or granting of alimony among other things. 

If you are the one who wants to receive alimony or, on the contrary, you might be the one who will be asked to pay it, it is highly advisable to consult experienced legal advisors to clarify your options within the framework of Indian legislation. 

FAQs

What are the factors taken into consideration when determining alimony in India? 

The amount of alimony here depends on one’s ability to pay, earning capacity, income source, and the need for support as well as the duration of marriage, and the marital standard of living during the marriage. Another factor that is taken into consideration by the courts in assessing alimony is any children that may be affected and their best interests. 

Whether or not alimony payment is taxable in India? 

This is true when, for instance, the amount is received as a lump sum then it is regarded as a capital receipt that doesn’t attract any tax. However, if alimony is received as periodical payments be it monthly or yearly basis then it becomes part of the receipts and is included in the income as per the Income Tax Act. 

Is it possible for a husband to seek alimony from his wife in India? 

Yes, in some circumstances a husband can claim maintenance allowance from his wife in India especially where the wife is richer than the husband under the Hindu Marriage Act, 1955. Still, it is rarely seen in practice. 

What happens to the alimony if the recipient's spouse gets remarried? 

In the case of a spouse receiving alimony remarries, the obligation of the other spouse to continue paying for alimony usually ceases. The paying spouse may thus approve the court to dissolve the alimony order once the recipient spouse gets remarried. 

How to avoid paying alimony in India?

Preventing the payment of alimony is legally complex, particularly when the judge has directed it. However, a spouse may not pay or will pay little in alimony by obtaining a mutual consent divorce with terms, establishing that the other spouse has sufficient income to meet his/her needs or showing that the marriage lasted for a short time and the parties had limited economic dependence on each other. Nevertheless, it requires legal advice to address these problems.