INTRODUCTION
Marriage in India is not only seen as an event or a big function, while it is seen as a social institution and also has an important role in Indian society. In earlier times the end of a marriage was never accepted by society but as time moved on and many things changed in the society. Nowadays, people with mutual decides to end their marriage for betterment for both husband and wife. Alimony is basically an order by a Court where one spouse pays some amount as decided by the Court to the other spouse after they are separated. It is also known as maintenance like to aid in maintaining a standard of living.
WHO CAN GET ALIMONY?
Alimony also knew as maintenance, support, or sustenance is usually provided after the end of a marriage to the spouse who is not able to access basic amenities in life. Alimony can be granted to either of the spouses whether husband or wife but usually it is paid by the husband to the wife.
If both the spouses are working in terms of doing something that yields revenue but there is a noticeable difference between the earning of husband and wife, then the wife can still get alimony to maintain the same standard of living as her husband. The Court in a case considers the age, ability to earn, educational qualification and other important things to decide the amount of alimony where the wife is not working. If the wife is earning and the husband is disabled then the husband is awarded the alimony[1].
Section 25 of the Hindu Marriage Act, 1955 describes the Permanent alimony and maintenance[2]–
(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose 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 such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent. This sub-section explains that the Court having jurisdiction over such cases as mentioned under this Act while giving some decision shall see the conduct of the parties as well as the facts and circumstances of the case in deciding the alimony amount.
(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just. This sub-section describes that if there is a change in the circumstances after the decision given by the Court as in sub-section (1) and the Court has reasons to believe the same then the Court may modify such order that will provide justice.
(3) If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just]. This sub-section states that if the party in whose favour the order has been passed and that person has re-married and in the case where such order has been in favour of the wife and the wife has not remained pure or when such party is a husband and he had sexual intercourse with a woman other than his wife, then the Court may change or cancel the order to provide justice.
HOW IS ALIMONY CALCULATED?
As such, there is no straitjacket solution or a particular formula to decide the amount of alimony. There are many factors that the Court has to consider while deciding for the same. Various other factors such as the conduct of both the parties, expenses for a child’s education and maintenance, the time span of the marriage and several other factors. The most important factor in deciding the amount of alimony is the potential or the capability of the spouses. The alimony can be paid on a monthly basis or as a one-time lump-sum amount as the Court thinks fit. The Court at first considers the income of the spouses and deducts the necessary expenses, considers the tax which a person has to pay and then reaches the net income[3].
The Apex Court has set the guidelines that if the alimony is being paid on a monthly basis, 25% of the husband’s salary of the month has been set as a standard that should be paid to the wife. As such no standard has been set for one-time payment but it generally ranges between 1/5th to 1/3rd of the husband’s net worth. In the case of Kalyan Dey Chowdhury v Rita Dey Chowdhury[4], the Supreme Court set the benchmark as 25% of the husband’s total net worth when the alimony is paid only once.[5]
Alimony becomes an essential part of life for the person who receives and thus there are various factors that the Court has to consider while deciding the amount of alimony.
[1] How is Alimony Calculated in India? ADITYA BIRLA CAPITAL (June 5, 2020 8:57 PM), https://www.adityabirlacapital.com/abc-of-money/how-is-alimony-calculated-in-India#:~:text=Generally%2C%20it%20is%20provided%20if,the%20husband%20to%20his%20wife.
[2] The Hindu Marriage Act, 1955
[3] Cathy Meyer, How Do Courts Determine Alimony? LIVEABOUTDOTCOM (June 5, 2020 9:19 PM), https://www.liveabout.com/how-do-the-courts-determine-alimony-1102804
[4] SLP(C) No. 34653 of 2016
[5] India: Supreme Court Ruling On Alimony And Clarificatory Amendment To Trust Law, MONDAQ (June 6, 2020 7:27 PM), https://www.mondaq.com/india/divorce/591238/supreme-court-ruling-on-alimony-and-clarificatory-amendment-to-trust-law#:~:text=The%20Supreme%20Court%20of%20India,ruling2%20delivered%20in%201970.
This Article is Authored by Nimish Mundra, 2nd Year, B.Com. LL.B. (Hons.) Student of Institute of Law, Nirma University.
Also Read – How To Get Alimony In India?
