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Can You File For Alimony Before Divorce?

Alimony or Spousal Support is a significant part of the Family law of the nation. Interestingly, Family Law in India is not one coded document but a compilation of multiple personal laws of various religions. On one hand, where we push for Uniform Civil Code, to the extent of making it the part of our constitution as a Directive Principle of State Policy under Article 44 [1], on the other hand, we also uphold our constitutional values of Secularism,[2] of recognizing diversity over homogeneity. It is a delicate balance to maintain and we struggle with its various interpretations.

For different religions different personal laws are made[3]

  1. Hindus- The Hindu Marriage Act, 1955, Hindu Adoption and Maintenance Act, 1956.
  2. Muslims- Muslim Women (Protection of Rights on Divorce) Act, 1986.
  3. Parsi- Parsi Marriage and Divorce Act, 1936.
  4. Christians- Divorce Act, 1869.
  5. Secular Laws- Criminal Procedure Court, 1973, Special Marriage Act, 1954

Alimony according to the Black’s Law dictionary is

“Allowances which husband or wife by court order pays other spouse for maintenance while they are separated, or after they are divorced (permanent alimony), or temporarily, pending a suit for divorce (pendente lite).”[4]

Alimony is given after looking at various aspects like the incomes of the spouse, their job prospects, their lifestyle etc. It is often provided in various ways like the permanent alimony which is paid for an indefinite period of time or the lump sum alimony in which a definite amount is given as a one-time payment or temporary alimony where a certain sum is paid, giving time to the other spouse to become financially independent.[5]

Generally, alimony is given after the sanction of the divorce decree but following are some situations when alimony could be granted before divorce.

Maintenance Before Divorce

Section 125 of the Criminal Procedure Code[6] deals with the issue of maintenance in detail. According to it, the husband has the duty to maintain his family- his wife, his children, his parents. As the explanation clarifies (as the definition of “wife”), the wife can claim maintenance from her husband through this section even without the divorce proceeding or even after the divorce till the time she is remarried.

“wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.”[7]

Unlike other legislations, Code of Criminal procedure is secular. It is applicable to people of all belief and even people with no beliefs. With such diverse personal laws in India, Code of Criminal Procedure provides a way for convergence. It is meant to protect the dependents in the family and ensure that they are provided with the care they deserve. Though it only stereotypically assumes that the husband is the breadwinner and everybody else, a dependent. There is no provision for the husband to claim maintenance from his wife in case she is the breadwinner.

This shows the problematic patriarchal mentality which automatically wants a woman to be in the same dependent state like the aged parents or minor children. Not only for a woman, it is detrimental for a man as he has both societal and legal pressure to earn for his family. Obvious gender biases could be seen with the legislation. A lot of other countries have done away with such biases.

Even the Section 25 of the Hindu Marriage Act, 1955 seeks to provide maintenance to both husband and wife as per the circumstances of the case-

“…on application made to it for the purposes by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support…”[8]

It is considered as an exceptional situation where husband claims for maintenance. A lot of times the fact that a woman gave up her career to care for the family and run the household while the husband earned the money is considered as a major deciding factor for granting her maintenance. The court debars a person from claiming maintenance if they can maintain the same standard of living, or if they live in an adulterous relationship.[9]

Interim Alimony

Interim Alimony is provided for the time period of court proceeding. If either of the spouse is unable to contest the case in the court of law, the other spouse has a duty to maintain them. According to Section 24 of the Hindu Marriage Act, 1955 [10], maintenance pendente lite will be provided to either of the spouses. There have been cases where the husband has claimed maintenance as well, like in the case of Rani Sethi v. Sunil Sethi,[11] the husband was given the interim maintenance of Rs. 20,000 for monthly expenses and Rs. 10,000 for litigation expenses. The decision was challenged in the Delhi High Court who upheld the trial court’s decision.

But further interpretations in the case of Nivya VM v. Shivaprasad N.K.[12] of the Kerala High Court, it was held that the husband cannot ask for maintenance if he is able to work and earn his income. Only in exceptional cases of incapacity of the husband, will the wife be forced to maintain him. He cannot also purposively incapacitate himself. This was done to prevent idleness among the people. In furtherance of protecting the maintainer such cases have to be disposed of within 60 days, so neither of the parties get exploited.

Alimony and judicial Separation

Judicial Separation is different from divorce. It is a milder version where cohabitation is not considered to be compulsory. Judicial Separation gives a cooling-off period in which the couple could try and resolve their differences without having to take immediate decisions like divorce. Under the Hindu Marriage Act, Section 10 provides the alternative of Judicial Separation.[13] Neither of the spouse is forced to live separately but they cannot be forced to live together. There are many grounds on which it is granted like cruelty, desertion, adultery etc. All these grounds are similar to the grounds of divorce under the Section 13 of HMA[14]. Though it varies according to different personal laws.

In the case of Sohan Lal v. Kamlesh[15], it was held that a judicially separated wife is also entitled to maintenance. Further the Supreme Court bench with justice Deepak Gupta and justice Madan Lokur, dealing with an issue of the Patna High Court decision said that if a divorced wife is allowed maintenance so a judicially separated wife should be too.[16]

Conclusion

The law and court have always tried to be a shield to protect the economically dependent spouse, their efforts in maintaining a family are recognized as a valuable contribution. In cases of interim maintenance or maintenance during judicial separation or maintenance in general, the disadvantaged spouse has the right to claim maintenance before the actual divorce. These safeguards are made to protect both the spouses who deserve a decent standard of living that they have been enjoying for the time of their marriage. Even though progress could be seen some reforms are still to be made to make the laws more gender neutral and unbiased.

[1]Indian Const. Art 44.

[2] Indian Const. Preamble.

[3] Devika, Maintenance-Wife, SCC Online, Jan 2019.

[4] Black’s Law Dictionary.

[5] Sharon Oster, A note on the Determinants of Alimony, Journal of Marriage and Family, Vol 49, Feb 1987.

[6] Criminal Procedure Code, § 125.

[7] Supra Note 6.

[8] Hindu Marriage Act, 1955, § 25.

[9]Hindu Adoption and Maintenance Act, 1956, § 18(3).

[10]Hindu Marriage Act, 1955, § 24.

[11]Rani Sethi v. Sunil Sethi, CM(M) 169/2009

[12]Nivya VM v. Shivaprasad N.K., OP (FC) No. 26 of 2015.

[13] Hindu Marriage Act, 1955, § 10.

[14] Hindu Marriage Act, 1955, § 13.

[15]Sohan Lal v. Kamlesh, AIR PH 332 (1984).

[16]PTI, judicially separated wife also entitled for maintenance: Supreme Court, The Economic Times, Dec 7, 2017.

This Article Written by Suhani Agarwal, NALSAR University of Law, Hyderabad.

Also Read – How to Avoid Alimony?

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