28 Aug Alimony – A critical analysis
Alimony is derived from the Latin word alimonia, which means sustenance.
It refers to payments awarded by the court in favour of the spouse or former spouse as per the separation or divorce agreement. The concept of alimony was introduced to provide financial support to the spouse who was dependent and makes a lower income, or in some cases, no income at all.
Alimony can be awarded to a husband or wife; however, in cases where there are children involved, the man is usually the breadwinner and the woman may have given up a career to raise their kids and will be at a financial disadvantage. A divorced spouse has right to live the same quality of life, he or she had when they married. It is regarded as one of the most important rights under divorce and matrimonial laws.
Eligibility of Alimony
The concept of spousal support aims at putting the wife back to the same position of comfort and lifestyle as she had during the marriage. There is no fixed amount of maintenance amount that the husband is liable to pay to his wife, and it is upon the discretion of a family court to fix the amount of maintenance that the husband needs to pay either on a monthly basis or in form of a lump sum.
Under Section 25 of the Hindu Marriage Act 1955, permanent alimony is provided by the court to the wife or even to the husband for her or his support and maintenance.
Following are the cases in which alimony has to be paid:
- In case the wife is a working woman, but there is a considerable difference between her and her husband’s net earnings, she will still be awarded alimony to help her maintain the same standard of living as her husband.
- If the wife is not earning, the court will consider her age, educational qualification and ability to earn to decide the amount of.
- If there is a child [1], Alimony does not constitute child support. Maintenance for children’s needs is to be provided separately by the However, if the mother is earning, she will also have to provide for the child in proportion to her income.
- If the husband is disabled and is unable to earn and the wife is earning [2] then the court grants alimony to the husband.
Method of Calculating
“Alimony” means payment towards the support and maintenance of a spouse, either by lump sum or on a continuing basis. It is paid by the “supporting spouse” to the “dependent spouse”.
The general rule states that a spouse is dependent when he or she makes less money than the other spouse.
However, there is no fixed formula or hard and fast rule for the calculation of alimony that the husband needs to provide to his wife. It can be provided as a periodical or monthly payment, or as a one-time payment in the form of a lump-sum amount. If the alimony is being paid on a monthly basis, the Supreme Court has set 25% of the husband’s net monthly salary as the benchmark amount that should be granted to the wife [3]. There is no such benchmark for one-time settlement, but usually, the amount ranges between 1/5th to 1/3rd of the husband’s net worth [4].
Also, there are certain factors that are taken into consideration by the court while deciding the quantum for alimony [5]. Such factors may be varied and may include the following:
- The position and status of the husband and wife
- Whether the wife has an actual claim for maintenance.
- If the wife is living separately, whether the reason to do so is justified.
- The wife’s total property and income.
- The husband’s total property, income generated from this property, and his other income.
- The total number dependents and their expenses borne by the husband.
- The personal expenses of the husband.
However, the wife is not entitled to claim maintenance in the following circumstances [6]:
- If she has ceased to be a Hindu by converting to another religion;
- If she is guilty of adultery i.e. she is unchaste and indulged in physical relation with another man;
- If she remarried after the divorce;
Conclusion
In light of the above discussion, it can be said that the amount of alimony to be paid cannot be fixed by law since it varies from case to case; the most important aspect is to maintain a balance while deciding the same and should cater the dependent spouse with reasonable comfort as was given during the existence for their marriage and should not be repressive for the other spouse to provide the same. Further it would not be wrong to say that if India faces more divorces in the coming years, the law in India too just like in abroad will evolve to allow a better sharing of matrimonial property between divorcees.
The law is equal for both and considers that the richer spouse must support for the financially weaker spouse. It ensures the livelihood and wellbeing of a couple under divorce maintenance rules as per the divorce alimony calculator in India.
[1]Hormusji M. KalapesivsDinbai H. Kalapesi on 25 February, 1955, Equivalent citations: AIR 1955 Bom 413, (1955) 57 BOMLR 791, ILR 1955 Bom 856
[2]Smt. ChandanaGuha Roy vsGoutamGuha Roy on 26 September, 2003. Equivalent citations: AIR 2004 Cal 36, I (2005) DMC 607
[3]Khaitan& co., Supreme Court Ruling on Alimony and clarification Amendment To Trust Law(04 may,2017), https://www.mondaq.com/india/divorce/591238/supreme-court-ruling-on-alimony-and-clarificatory-amendment-to-trust-law.
In the case of Rita Dev Chowdhury V. Kalyan Dev Chowdhury
The Supreme Court of India held that a benchmark of 25% of the net salary of a husband was held to be a “just and proper” amount as alimony to his former wife.
Vandana shah, Supreme Court’s Fixing Of Alimony At 25% Of Ex’s Salary Is A Move To Benefit Women (July27,2017; 08:51 A.M.), https://www.huffingtonpost.in/vandana-shah-/supreme-court-s-fixing-of-alimony-at-25-of-ex-s-salary-is-a-mov_a_23020343/
[4]Taxolawgy Alimony Calculator India (July 30,2019), https://www.taxolawgy.com/alimony-calculator-india/.
[5]AnubhutiMatta, know Your Rights : Alimony In India ( April 12,2019 )https://theswaddle.com/know-your-rights-alimony-in-india/
[6]PTI, women divorced for deserting can’t claim alimony for desertion period: SC( April 6,2017; 10:30 P.M. ), https://www.financialexpress.com/india-news/woman-divorced-for-deserting-cant-claim-alimony-for-desertion-period-sc/618329/
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