ALIMONY- (Article)
INTRODUCTION
” When there is a mutiny in the
beginning,
there arises a Alimony at the end ”
The term Alimony is derived from the Latin word alimonia, means sustenance. It means maintaining someone or something in life or existence. In general, Alimony means an allowance or amount the court orders one spouse to pay for the other spouse for a sustain, while and after undergoing a divorce. In India, it is generally the husband to pay the wife for her sustenance. In India there are many laws to govern divorce depends upon the community. The various laws were created to provide individual treatment to different communities and these have evolved through case laws over the past few decades.
FACTORS INVLOVED IN CALCULATION OF ALIMONY
Ø INCOME
Husband’s and Wife’s income and other properties if any existed at the time.
Ø PERIOD
OF EXTEND OF MARRIAGE
If the marriage existed more than 10 years are entitled to be granted a lifetime alimony.
Ø AGE
OF THE PARTIES
Age of the parties is taken into consideration while awarding alimony. If the court is of the opinion that the parties (he/she) is of young age and can get good financial resources in upcoming days.
Ø HEALTH
The health of the parties is considered while granting Alimony amount. If one of the spouse is suffering from any greatest form of illness then the other spouse is subjected to pay higher amount of alimony depending upon the factual statement of the case.
Ø SOCIAL
STATUS
When there arises any physical disabilities for either of a spouse because of which he or she could not find a job to lead a normal and decent lifestyle, then the other party is supposed to pay the amount in a frequent intervals as ordered by the court.
Ø JOB
SECURITY
If the women is working and there is a substantial difference between him and her in the net income, then she will be granted alimony for the same standard of living as of her husband also the law says if she is not working but well educated and qualified to do a job as equal or more than of her husband’s then the alimony will be awarded until the period of her search for a job.
Ø CONDUCT OF THE PARTIES
If the ex-wife is in relationships with other man or she is planning for a wedlock then she is not entitled to get any form of alimony benefits.
Ø DEDUCTIONS
While considering net income of the husband’s earning , the Income Tax, EMI, any loan repayments should be taken into account.
Ø CHILD CUSTODY
The
spouse who maintains child custody will be entitled to receive a greater amount
of expenditure Though alimony does not
cover the children ,both the spouse should equally contribute for the benefit
of the children if in case both the spouses are working.
ALIMONY UNDER VARIOUS LAWS
l UNDER HINDU LAW
The law which governs alimony for Hinduism are the Hindu marriage Act,1955 and Hindu Adoptions and Maintenance Act, 1956. Under sec.24 of the Hindu marriage act,1955 says both husband and wife are entitled to claim maintenance from their spouse it does not differentiate the gender. While under sec.25 says about permanent alimony is provided by the court to the both husband and wife depending on the factors like husband’s and wife’s earning , assets, deductions, financial status , job security etc. Under section.18 of the Hindu Adoptions and Maintenance Act,1956 the wife also got additional option to claim maintenance on the following grounds:
i.
If
the husband treats her cruelty.
ii.
If
the husband has another wife.
iii.
If
the husbands suffer from a virulent form of leprosy.
iv.
If
the husband abandons her, without any justified reason or without her consent.
v.
If
the husband converted into another religion.
vi.
If
he has concubine in the same house.
vii. If there is some other reason for the wife to live separately.
Section 23 of the Act, which says that it shall the discretion of the court to award maintenance if any and what amount be awarded.
v Amit Kumar vs Navjot Dubey, 2016
Held that wife is entitled to enjoy the same amenities of life as she would have been enjoying had she been staying in the matrimonial home. The fact that wife is drawing more salary than the husband is not a ground to deny her claim of maintenance in view of sky rocketing of prices of basic necessities of life, expenses on education of children besides their needs to grow well and face pressure,
v Shailaja & Anr. Vs Khobbana , 2018[1]
It was held that the wife whether capable of earning are two different requirements . Merely because the wife is capable if earning is not sufficient reason to reduce maintenance.
v Sanjay Kumar vs Bhateri, 2013
Held that disobediance by wife cannot create a legal bar to claim maintenance by a destitute wife who has no income to maintain herself. Disobedience of a decree for restriction of conjugal rights is not a ground in terms of section 24 of the HMA to deny claim for maintenance to a party who otherwise satisfy the ingredients of the said provision.
v Jasbir kaur vs District Judge [2], Dehradun, (1997)
It was held that “considering the diversed claims made by the parties one inflating the income and the other suppersing, an element of conjecture and guess work does enter for arriving at the income of the husband.
l UNDER MUSLIM LAW
The Muslim women can avail alimony under the Muslim women (protection of rights on Divorce) Act,1986. In sharia laws, the Muslim women are given absolute right to maintenance and this right remains unprejudiced irrespective of financial status of the wife. Under this Act, it lays down the provisions for the maintenance/alimony. They are entitled to a following benefits of the Act :
i.
reasonable
and fair amount to be paid during the Iddat period,
ii.
an amount equal to the dower or Mehr,
iii. a title to the property given to her either before or after marriage.
The Act further states that the State Wakf board functioning in the area is bound to pay when there is no person to pay the maintenance to the Muslim women. Morever the Muslim women is entitled to pay only if she is not remarried or is she has a children where she is unable to perform her duties or not being able to maintain herself after the period of Iddat.
l UNDER CHRISTIAN LAW
Section 37 of Indian Divorce Act, deals with the matter of permanent alimony, the court may order the husband to pay a weekly or monthly sum for her financial support as the court may seem reasonable . while granting alimony these factors has to keep it in consideration: conduct of parties, nature and source of husband’s income, wife’s own fortune if any. Section 38 of the act deals with the rules regarding payment off alimony. The alimony amount can be given to the wife herself or to any trustee on her behalf.
l ALIMONY UNDER PARSI LAW
Under section 40 of Parsi Marriage and Divorce Act,1988 deals with permanent alimony and maintenance. It authorizes the court to grant any alimony for the spouse without exceeding the husband’s own life by considering the conduct of the parties and the merits of the case.
THE CRIMINAL PROCEDURE CODE , 1925
Section 125 of Crpc deals with any follower of any religion can apply for maintenance without any restrictions. It lays down provisions for a husband to maintain his wife, parents and children if they do not have adequate means to maintain themselves financially or suffer from any disabilities. As per the circumstances and merits of the case the income, assets, liabilities, property of the husband should taken into consideration. There is no such requirement for a wife to divorce her husband to get maintenance under this section.
v Shamim Bano vs Asraf Khan[3]
It was held that the petition under Section 125 of CrPc would be maintainable before the family court as long as the appellant does not remarry and the amount of maintenance to be awarded under section 125 of CrPC cannot be restricted for the Iddat period only.
CONCLUSION
Till now there is no formulas or fixed determination to calculate alimony but the Supreme Court of India has set 25% of the husband’s net monthly salary as the benchmark for one time settlement , but usually, the amount ranges from 1/5th to 1/3rd of the husband’s net worth. This is determined on the basis of a range of factors, which depends on the specific circumstances and facts of each case, the amount of alimony or maintenance to be awarded and is completely discretion of the court. The amount of alimony varies from case to case depending upon the factual and the circumstances. However the Indian laws made secured and decent codified provisions for the betterment of spouse living.
INDIAN LAWS WHICH GOVERNS ALIMONY
l THE HINDU MARRIAGE ACT, 1955
l DIVORCE ACT, 18
-A. Jai Shree Shivamaithy
School of Excellence in Law.
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