The alimony (maintenance) in India is provided under Indian law to the spouse after divorce or separation. In case of alimony, the income assets and property of both the husband and wife are considered.
The concept of maintenance aims at putting the wife back to the same position of comfort and lifestyle as she was at the time when her marriage existed. There is no fixed amount of maintenance 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.
There are many alimony laws in India that gives protection to the spouse as follows:
Section 125 of CrPC provides maintenance to the spouse: Here the spouse can file a case on maintenance before the Court and after considering the income, assets and property of the spouse’s husband the Court will award or provide a proper maintenance to the spouse as per the requirement. An application for interim maintenance can be filed with help of the best divorce lawyers in India for getting interim relief irrespective to religion or caste. According to the circumstances of the case the court may grant maintenance to the required spouse.
Domestic Violence Act, 2005: A relief to stay at father-in-laws house. Under this Act the spouse has the right to take back all the items or things given to her during her marriage and can also seek compensation or damages from the Court for any mental or physical cruelty suffered. For this, the court may appoint an officer to keep a check during the stay of the spouse in her father-in-laws house and report accordingly.
Section 24 of the Hindu Marriage Act allows both husband/wife to claim for maintenance whereas under Hindu Adoptions and maintenance act the women gets an additional option. This act is applicable to Hindus only. The types of maintenance under Hindu laws are as follows:
1. Interim Maintenance: When the wife files a maintenance petition, the court may award her interim maintenance that the husband must pay from the date on which the application was filed by the wife till the date of dismissal through her divorce law advocate. It is also known as Maintenance Pendente Lite and is paid so that the wife can pay for the legal expenses incurred by her.
Interim maintenance is awarded by the court if the wife has absolutely no source of income to maintain herself. There are no laws that lay down the amount of this type of maintenance and it is completely upon the discretion of the court to determine how much maintenance is sufficient for the wife to sustain during the proceedings.
The amount of maintenance to paid depends upon different factors. The courts rely on the provision of Section 23 of the Act while asserting the total maintenance that the husband needs to pay to his wife. The provision lays down the following factors that must be considered to fix a maintenance amount:
• 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:
• She has ceased to be a Hindu by converting to another religion.
• She is guilty of adultery i.e. she is unchaste and indulged in physical relations with another man.
• She has remarried after the divorce.
Accordingly, Muslim women can claim for Maintenance under Dissolution of Muslim Marriages Act, 1939 and the Muslim Women (Protection of Rights of Divorce) Act, 1986. Under this Act a husband may divorce his wife by repudiating the marriage without giving any reason. Pronouncement of such words which signify his intention to disown the wife is sufficient. Generally this is done by talaq. He may also divorce by Ila, and Zihar which differ from talaq only in form, not in substance. A wife cannot divorce her husband of her own accord as She can divorce the husband only when the husband has delegated such a right to her or under an agreement.
In Christians, The Indian Divorce Act 1869 deals with the alimony to be provided to the Christian women. Section 36 of the Act provides for alimony pendente lite similar to the provision of Hindu marriage act. A petition shall be served on the husband; and the court, on being satisfied of the truth of the statements therein contained, may make such order on the husband for payment to the wife of alimony pending the suit as it may deem just:
Provided that alimony pending the suit shall in no case exceed one fifth of the husband’s average net income for the three years next preceding the date of the order, and shall continue, in case of a decree for dissolution of marriage or of nullity of marriage, until the decree is made absolute or is confirmed, as the case may be.
Section 38 of the Act provides that In cases in which the Court makes any decree or order for alimony, it may direct the same to be paid either to the wife herself, or to any trustee on her behalf which is to be approved by the court, and may impose any terms or restrictions which to the Court deems fit, and may from time to time appoint a new trustee, if it appears to the court relevant so to do.
