How to Avoid Alimony?

Introduction

The word marriage is not been defined exactly. Different people have different opinion about the marriage. Marriage can be defined as a contract in between two people which give rise to many rights and obligations in between spouses. Marriage is considered as a culture not only in India but also in almost all the countries of the world. But as the days are passing divorce is becoming a common. Divorce is a legal separation in between spouses and as a result of which contract of marriage comes to end. But after the divorce the rights and liability does not comes to end at that very moment. It includes various issues like Alimony, property distribution, child custody etc.

Meaning of Alimony

Alimony is defined as a financial support given to wife after divorce. Alimony is considered as right of relief of women. Now the question arises whether the right of alimony is available only to wife? Why not to husband? Taking example of Hindu Marriage Act, it is a neutral Act and most of the right present there are applicable to both the spouses. But as of now in India no such is found where Husband claims alimony or wife gives alimony to husband. In most of the cases it is found that husband gives alimony to wife.

Also Read – Why is Judicial Separation is better than Divorce?

When Alimony is provided and who decide the amount of alimony?

Right of alimony arises at the time of divorce. Most of the time alimony is decided the by the court. In case of Mutual divorce the Husband and wife negotiate the amount before the lawyer. But in case of consented divorce Wife files an application before court so claim alimony from husband and thus in this case it is the court who decides the amount of alimony.

Factors to be taken into consideration while deciding the amount of alimony

In India, Uniform Civil code is not followed, as a result different religion has different custom in determining the alimony. But if an application is filed before the court to claim alimony, court take into consideration the following factors in deciding the amount of alimony:-

1. The qualification, status, capacity of income of Husband.
2. The qualification, status, capacity of income of the wife.
3. The necessities of wife and whether the wife is capable to earn money so that she could fulfil all her necessity or not.
4. The necessities of minor child or children.

Related laws

Section 25 of Hindu Marriage Act, 1955

This section provides that the court shall decide the amount of monthly allowances by taking into account the income, status, capacity of both the parties.

Section 18 of The Hindu Marriage Act:-

This section provides some of the conditions if fulfilled wife can claim maintenance from his husband even without living with her husband. The conditions are:-

1. The husband is guilty of deserting and abounding his wife for no valid cause.
2. If wife have the enough reason to believe that due to his cruelty, living with the husband may cause harm to his wife.
3. If the husband is suffering from leprosy.
4. If the husband has any other living wife or maintains other relationship.
5. If a husband gets converted to any other religion.
6. If there is any other justifiable cause.
7. Section 37 of Special Marriage Act, 1954:-

This section provides that the court has the power to charge the property of husband if he fails to provide monthly allowances. The court can also change the order the wife remarry.

Sec 125 of Cr. P.C:-

Section 125 of Cr.P.C aims to protect the right of wife and children. According to the section if a person have sufficient means then also he neglects to pay alimony to his divorced wife, minor children or a major child who is unable to incur all expenses due to injury or mental abnormality, then the court may order him to monthly allowances to them.

Now there is a difference between alimony and maintenance, Alimony is one-time payment at higher proportion and maintenance is monthly allowance.

 Ways to avoid alimony

1. If the husband proves that Wife have sufficient qualification and capable to doing income so to fulfil her basic necessities.
2. If the husband proves that Wife at the time of divorce or latter is doing a job or business that gives her sufficient income to fulfil her basic necessities.
3. If the husband proves that Wife have worked before marriage and left her job after marriage or after having children or child but even after her divorce she have enough qualification and capacity to earn and fulfil her necessities.
4. If the husband proves that after divorce wife remarries then husband is not liable to may alimony.
5. If husband proves that the husband is remarried and he have to maintain his new wife and his income is such that he can’t maintain both.
6. If husband proves that he has no income so to provide the alimony.
7. If husband proves that his wages is reduced.
8. If husband proves that if he suffers from any illness or injury as a result he is unable to do income.
9. If husband proves that wife’s income has increased due to promotion or any other reason.
10. If husband proves that the marriage is not valid.

Also Read – Will talaq be considered valid if the husband doesn’t pay the Mehr to his wife?

Case Laws:-

1. In Ajay Bhardwaj vs. Jyotsna and other, DOD 23.11.2016 (P&H), it was held that as there was no marriage between the parties as on the date of petition, there can’t be no dispute about the fact that children born out of this relationship would be entitled to receive maintenance.
2. In Bhuasaheb Sandu vs. Leela Leelabhaia, AIR 2004 (Bombay) 283, it was held that an illegitimate wife has no right of permanent alimony.
3. In Baji rao Ragh roba Tambre vs. Tola bhai , 1980 CriLJ 473 (BOM) question arises that whether the second wife whose marriage is void is entitled to apply for maintainenec under section 125 of Cr.P.C. It was held by the court that until and unless the complainant proves that she is legally wedded wife to the petitioner, Magistrate will have no jurisdiction to pass an order of maintenance in favour of her.
4. In Nalini Prava Bhera and others vs. Akhsya Kumar Behera, 2003 (1) DMC 544, (ORISSA) it was held that while deciding the amount social status, economic condition and standard of living of the parties has to be kept in mind.
5. In Sunita Singh vs. Raj Bahadur Singh, 1999(3) RCR (Civil)66 (All) it was held that wife is not entitles receive permanent alimony because she had a illicit relationship with a person and that is prohibition under sec 25(3) of Hindu Marriage Act.

Conclusion:-

Alimony is a basic right and most of the people try to avoid alimony. After analysis it is found that husband have burden of proof over him. He needs to prove the reasons for not providing alimony. Sometimes it is found that the court held even after wife have sufficient income then also husband need to pay the alimony. However, there are some women who falsely alleged for alimony for harassing purpose. Also, modification can be made in the court order as per the circumstances.

Reference

1. https://easyadvocacy.com/EADigest/How-to-avoid-paying-alimony-in-India
2. http://cja.gov.in/All%20Judgments/Maintenance%20and%20Alimony.pdf

This Article Written by Madhurika De, Student of ICFAI University, Tripura.