How alimony is decided in India?

Tripaksha LitigationMarch 13, 20241 Comment

How alimony is decided in India?

The expression ‘alimony’ may be defined as the financial support provided to a spouse post-divorce. Alimony is provided to the spouse not having sufficient means to take care of the basic needs. Either spouse may claim alimony from another however; mostly it is claimed by the wife from her husband. Usually, by the term ‘alimony’ we mean the lump-sum amount awarded to the spouse after divorce.

Types of alimony

There are two types of alimony in India:

Interim maintenance: This is the amount awarded during the court proceedings
Lump-sum amount: Amount awarded at the final stage of legal separation

Provision dealing with maintenance/ alimony

Section 13B of Hindu Marriage Act 1955
Section 24 of Hindu Marriage Act 1955
Section 25 of Hindu Marriage Act 1955
Section 18 of Hindu Adoption And Maintenance Act 1956
Section 125 of Code of Criminal Procedure 1973

Eligibility to get alimony

U/s 25 of the Hindu Marriage Act, permanent alimony is provided to the wife or it may also be claimed by the husband. If the wife is working and if there is a significant difference between her and her husband’s earnings then she can claim alimony for maintaining her lifestyle in the same standard of living as her husband.

If the wife is non-working then the court will consider her educational qualifications and her capability to earn to decide the amount of alimony. If the husband is differently-abled and is not able to earn and the wife is earning well then in such circumstances the court grants alimony to the husband.

Calculating the amount of alimony

The maintenance amount that is calculated is based upon the following factors:

Total monthly home income of both spouses without tax.
Educational background of both spouses.
The number of years of marriage.
Number of children and child custody.

However, there is no straight-fit formula to calculate alimony that needs to be awarded to the wife. It can be awarded as a periodical or monthly payment, or may also be given as a lump-sum amount. The Apex Court has set a limit of 25% of the husband’s net monthly salary as the benchmark amount that should be granted to the wife. However, for a one-time settlement, there is no benchmark and it could range between 1/5^th to 1/3^rd of the husband’s net worth.

In Kalyan Dev Chowdhury v. Rita Dev Chowdhury– Where the wife was working as a teacher and drawing Rs. 30,000 per month. The court awarded approx. 21-25 percent of the husband’s salary to his ex-wife as maintenance.

In another case of Smt. Nidhi v. Shri Nishant Dubey– The court awarded one-time maintenance of Rs. 10 lacs to the wife.

Factors to determine alimony:

Husband’s income and status: The court decides the amount of maintenance or alimony that is to be paid by the husband to his wife based on his status and position, income, assets, and lifestyle. Husband’s income and financial status play very important factors while deciding a justified amount to be awarded as alimony/maintenance.

Liabilities of the husband: While determining the alimony the court considers the liabilities of the husband such as EMIs, loans, dependant members in the family, etc.

Reasonable needs of the wife: The wife’s need is not limited to food and to keep her alive, other conditions are also taken into account such as a child living with the mother, the necessities of the child, etc. The court also considers the qualification of the wife, whether she is capable to earn, etc.

Wife living separately without sufficient cause: The onus of proof lies on the wifeto explain why she is living separately from her husband. In the case of Smt. Teja Bai v. Chiddu Armo, Jabalpur, 2019 the High Court stated that her husband does not work due to illness, and hence she left the house and shifted to her parental home with the child. The court stated that it is not a sufficient ground to live separately with the husband. She is not entitled to maintenance.

Professionally qualified wife-Capable of earning: A wife who is well-qualified and iscapable of earning is not entitled to maintenance. In Smt. Mamta Jaiswal v. Rajesh Jaiswal, a woman was extremely qualified and held a degree of MSc, M.C. M.Ed was not working. A divorce petition was filed and she was awarded alimony of Rs. 800/- as pendente lite. On appeal, the court ordered the wife to find a suitable job and held that the maintenance order is valid for 1 year only.
Wife’s earning: In the cases where the wife is earning well, the court considers that she is not entitled to maintenance. As the maintenance is for those who are dependent and are unable to maintain themselves. In Chaturbhuj v. Sita Bai, 2007: The court held that the test to determine the entitlement of maintenance is that the wife should be capable to earn enough for her survival. The test is whether the wife is in a position to maintain her in the way she was used to in the place of her husband.

Wife remarries: If the wife remarries, then in that case the husband is absolved to maintain her. Also, if there is any change in circumstances such as any financial crisis or wife starting earning and drawing a decent salary. The husband may file a petition for the same and the court shall take into account the facts, and evidence prevailing.

The other conditions that are taken into consideration are the age of the spouse, economic conditions, the health of both spouses, who has child custody, etc.

Duration of getting alimony

The interim maintenance takes approx. 15days to 60days, whereas permanent maintenance can take half a year to one year.

However, no specified period is provided in any law. The aforesaid period is likely to be extended if the order is challenged in the subsequent proceedings. There is no set timeline given or followed while granting maintenance.

Denial of maintenance

Following are the grounds that the court may consider while granting maintenance to a wife:

Wife is living separately from her husband without sufficient cause;
Wife living in adultery;
Wife is professionally well-qualified and she is capable of earning
Couples are separated by mutual consent
My wife is earning well
Wife remarries or there is a change in circumstance

Tax on alimony

The monthly payment of alimony is treated as a revenue receipt and it is taxed in the hands of the receiver. The alimony paid amounts to the total income and is taxed as per the tax bracket. No deductions are offered to the payer. In case of lump-sum alimony is paid then it is treated as a tax-free capital receipt.

To sum it may be stated that in the eyes of law the rules for alimony and maintenance are the same for both the spouses and it considers that the financially stable spouse shall support/take care of a financially weaker spouse. As mentioned above, the term alimony means an allowance or amount which a court orders the husband to pay to the wife for her sustenance. The husband must maintain his wife and this obligation arises in marriage. Such obligations are imposed on him by operation of law.

[i] https://www.legalserviceindia.com/legal/article-6937-maintenance-and-alimony.html

[ii] https://www.taxolawgy.com/alimony-calculator-india/

[iii] https://blog.ipleaders.in/how-to-establish-how-much-alimony-you-should-get-in-case-of-divorce/

[iv] (1970) 3 SCC 129