Alimony in India: Past, Present and Future

Name of Author: Aditya Kalsait
College: Panjabrao Deshmukh Law College, Amravati

Abstract:

Marriage is a social contract often disguised as a sacred lock wherein Divorce is looked at as a Taboo. But as the times have changed, Divorce is not at bay and Alimony is something that stems from a divorce that holds responsible one spouse, more equipped for the proper maintenance of a less equipped spouse even if the terms of the marriage contract made by law, religion, custom are broken.
The article focuses on Alimony and its Tangents

What is Alimony?

When a Judge hearing a Divorce case is satisfied that both parties don’t want to visit the status quo then before granting an award of Divorce, either of the parties has to subscribe to a monetary amount for its counterpart’s survival.

Why does Alimony exist?

It is believed that the marital alliance coalesces both partners for a lifetime and if anyone does want to exit the alliance, it falls upon him/her to take care of counterpart’s survival needs. Mere breakage of marriage does not dilute the supposed sacredness attached to marriage.

Is there a difference between Alimony and Maintenance?

In India, Alimony is awarded by courts by a financially more equipped partner to a financially less equipped partner. It is generally a one-time amount payable thereafter no claim for financial assistance is to be made by the applicant.
Whereas, Maintenance is a monthly settlement awarded if Alimony is not a reachable and feasible option on the part of the responder.

How is Alimony viewed differently in various Religions?

Personal laws of each religion though vary in muscle but are similar in skeleton. Major religions of the world view Alimony as given below:

Hindu :

Marriages in Hindus are governed under the Hindu Marriage Act, of 1955:

The formula for calculation of alimony is not given here but courts usually follow the convention of fixing the amount of alimony for the stipulated months.
Alimony is of two types: Permanent Alimony and Fixed Alimony

Permanent Alimony:

Respondent ( payer of alimony) has to pay the amount to Applicant ( receiver of alimony) until the applicant remarries or dies or gets into a relationship, whichever is earlier.

Fixed Alimony

Respondent has to pay the amount to Applicant only for a specific period. Normally, it is paid during divorce proceedings till the final verdict is out, it also can be continued till some period after the divorce award is given.

Hindu Adoption and Maintenance Act, 1955

Under this Act, the Wife can solicit financial assistance from the Husband if :

Husband leaves the wife unreasonably
If there is a fear of injury or irretrievable damage to the wife
If the husband has another spouse or maintains relation with the concubine
If he converts to another religion
If the husband lives separately, etc

Islam:

In Muslims, a man must provide for his spouse regardless of any special formal contract.
Kharacha i Pandan is a special allowance received by Muslim wives which means Betal Box expense meaning personal expense.

Muslim women can receive alimony under the Muslim Women (Protection of Rights and Divorce Act) 1986. Under section 3, MAHR is decided during the time of marriage itself which includes maintenance amount, gifts, and assets received by the wife at the time of marriage.
During the Iddat ( waiting period after divorce), the Husband is obliged to pay to wife to support her after the divorce and make the future safe for her.
But to claim alimony under the law, Muslim wives have to make sure that she is discharging their duties as faithful wives and remain chaste.

Muslim women can’t claim divorce if :

If she elopes,
Does not follow reasonable instructions of husband,
If she deserts the spouse,
If she is behind bars,
If she consents to divorce for the second marriage of her husband.

Christian Law :

Under the Indian Divorce Act, of 1869, Christian women can seek alimony. During Divorce proceedings, the court has the power to fix the amount of alimony and maintenance and also child support.
Upon failing which causes, seizure of your income and assets.

Parsi Law:

Under the Parsi Marriage and Divorce Act 1936, Parsi women can ask for legitimate and illegitimate alimony i.e Alimony pendente lite ( during divorce proceedings) and Permanent Alimony meaning after the divorce award also, the husband has to pay a fixed amount to the wife as a one-time settlement.

Sikhs, Jains, and Buddhists are governed by Hindu Personal Law.

If people from distinct religions marry, then their marriage is registered under the Special Marriage Act and it also provides for Divorce and Alimony.
Alimony pendent lite and Permanent Alimony is also provided here. If the wife can’t bear the legal fees due to financial constraints, the husband has to pay the fees of divorce proceedings of the wife.

The formula of Alimony fixation:

There is no hard formula to determine the amount of alimony but usually, it is set at 20 – 25% of the husband’s income. It forms part of revenue receipt and it is a case of monthly installment. That is taxable And ⅓ or ⅕ of the husband’s total net worth in case of a permanent lump sum settlement. It forms part of capital receipt and thus is not taxed.

What are the factors that drive the fixation of Alimony by Family courts?

If the duration of marriage is more than 10 years, then huge alimony can be solicited.
The income and assets of both parties are weighed in properly.
The environment of living conditions during marriage is taken into account so that the less equipped spouse can have the same environment of living conditions after divorce too.
The contribution of both parties financial, mental, and physical is also taken into account whereas sacrifice of the carrier, child-rearing, and homemaking is not overlooked while determining the Alimony amount.
Proper balance is aimed at between the financial needs of a receiver spouse and the financial strength of the payer spouse.
The age and Health of both parties are also noted as they can impact earning capacity.
Future Earning opportunity is also checked while examining education, skills, and employment prospects.
Spousal misconduct, Degree of faultiness of spouse in marriage.
Child support if involved, is also to be factored in which impacts alimony determination.

Do men receive Alimony?

As per Hindu Law, there are instances of men getting alimony but here men have to prove that they are financially, and physically unwell, unstable, and less earing than the wife. But there are also instances of Male applicants getting rejected on the same grounds. Muslim, Parsi, and Christian men have had rare occurrences of men receiving alimony. But as per the Special Marriage Act, only women are entitled to alimony, not men.

What are the conditions in which women are held ineligible for Alimony?

What are the relief points for men before commencing marriage and following the award of Alimony?

Before commencing:

Setting Divorce stipulations before marriage.
Negotiation with ex-spouse.
Carefully mentioning marriage expenses and gifts received and their respective monetary sum.

After Divorce award:

The wife can’t claim dividends, investment in real estate, or jewelry the of husband.
The wife can’t claim insurance benefits when the husband is the payer of installments under his name.
Gifts and other Contributions given by the husband to wife husband can claim reimbursement.
If the wife moves in with another partner or remarries then alimony is halted.

Recent Trends regarding Alimony:

Alimony laws are not static, they evolve with societal evolution. But recent trends suggest the modernizing of alimony laws but also a strong reaction to it. California lawyer Kelly Clarkson says

High-earning women find it absurd to pay out to men, they still think it is not their responsibility. Also, fictitious cases of domestic violence like Zoravar Singh’s famous case ( brother of Yuvraj Singh ) are being filed by women to solicit financial gains and gain alimony. Also, an RTI reply by the Karnataka High Court said that only around 5% of claims by wives are found to be true in such cases.

Mention must be made of the Jeff Bezos and Bill Gates divorce case wherein both were compelled by courts to dole out around ¼ % of their assets which translates into billions of dollars. Both married middle-income girls, the question to be pondered over is Do they deserve such a huge amount in alimony?

Why can’t we think of skill-building activities and related expenses by husband or wife post-divorce so that they can take care of themselves?
Courts have also awarded 4 lakh Alimony to an Asst. Director in the Finance Ministry where her husband was a private employee earning less than her. Why the due process of law is often overlooked there is also evidence of women not asking for alimony if both are earning at par with each other which is commendable on their part.

Way forward :

Gender-neutral legislation is a need of the hour
Follow examples from 1st world countries wherein they stress spousal maintenance rather than just maintenance to wife.
Custody of children must be looked at unbiasedly as occurrences of sexual exploitation of male children by mothers are also seen
Coercing the media to attentively look at such issues without any gender bias
Formation of Purush Aayog on lines of Mahila Aayog and giving it Constitutional status.
Sensitization of men towards changing aspirations of women and society.
Stringent punishment to women labeling charges of false domestic violence cases.
Skill Arbitrage of women and men seeking alimony so that they could fend for themselves and eventually alimony can be stopped.
Carefully examining and also factoring in before marriage conditions of spouses and after marriage condition so that both could only receive such amount of alimony as is commensurate to their prior marriage conditions only.
People must be educated about Marriage as a contract and not a sacred deal. Men do not adopt women in marriage rather it is a contract. If women or men fail to meet the terms of the contract, it is not the responsibility of other spouses to provide for them.

Conclusion :

In times of constant variation, we can’t afford to remain stagnant. Now, pre-marriage meetings also stress over liberty to be given to women by men. So on the same lines, above mentioned suggestions also must be discussed during marriage negotiations. We all must remember that the problems of today need solutions of today. Positive gender neutrality in all sectors is to be promoted so that it can have a ripple effect on all stakeholders of society.