The compensation depends on matrimonial laws specific to specific religions. Or, civil laws like the Special Marriage Act 1954 and 125 CrPC Common Social Welfare Law." The Hindu Marriage Act, 1955, applies to all marriage and divorce, for Hindus, Jains, Sikhs and Buddhists.
Alimony is a monetary compensation granted to the spouse who is unable to support himself/herself.
The Indian Christian Marriage Act, 1872, and the amended Indian Divorce Act apply to Christians. For Parsis, there is the Marriage and Divorce Act for Parsis. Shariat Law and the Dissolution of Muslim Act, 1937, apply to Muslim marriages.
According to Mumbai-based family lawyer Mrinalini Deshmukh, there are two types of alimony. "When it's given during the time of the court proceedings, it is a maintenance amount. The second is when it's given after the legal separation," she explains.
After separation, alimony can be taken either as a one-time lump sum amount or a fixed payment, which could be monthly, quarterly and the like, depending on the requirement of the spouse.
Who is entitled to it?
More often than not it's the woman who gets the alimony from the husband. However, there have been cases where the court has ordered the wife to pay her husband. In July 2014, a Gandhinagar family court ordered a woman, Rajvinder Kaur, to pay alimony to her husband Dalbir Singh, who had accused her of physical and mental torture. Vaidya says, "Though the law is not changing, the interpretation of the law is changing over time."
Sometimes, the odds appear to be stacked against one party. In June 2014, a Pune magistrate ordered a jobless husband to pay alimony to his wife, who had a steady income. As far as the stree dhan is concerned, a woman has exclusive rights over it. Assets she received from her family and her husband's family during the course of the marriage remain hers.
How much to pay
The court decides the amount of alimony/maintenance which is too be paid by the respective spouse after examining various parameters.
The income of the spouses, their standard of living and financial status are the factors considered. Both spouse's income, investments and net worth, as well as the financial needs of the individuals are taken into account. "Though there isn't a fixed formula to quantify the amount, generally it is in the range of one fifth to one third of the gross earnings of the spouse who has to pay alimony," says Deshmukh.
The number of years the couple has been married, the number of children and the kind of emotional investment made are also considered. The husband can request stopping of payment or reducing the amount, if the wife manages to get another source of income.
While choosing the mode of payment, the lump sum is a preferred option. Lump sum gives certainty. A regular fixed pay out can stop after a while due to reasons like the supporting spouse losing his or her source of income or death. "The lump sum amount is not taxable as you get it as capital receipt.
However, if investments made from this amount earn returns, the return is taxable," says Deshmukh. The monthly payment route is taxable to the spouse who gets it.
Once the court passes the order, the supporting spouse has to pay alimony till the receiving spouse remarries. If payments are not made on time, there are consequences. "The court has in the past ordered a husband's employer to deduct an amount equivalent to the alimony from his salary and pay it directly to the wife," says Deshmukh. In 2014, filmmaker Gaurang Doshi faced contempt-ofcourt for not standing by his undertakings to the Bombay High Court in a case filed by his wife Madhuri.
Another extremely disturbing query that often crops up is the failure on the part of the husband to pay up the maintenance amount decided upon by the Court. In the event of such an occurrence, the Court dismisses any relief that he is entitled to. For example, his divorce petition can be dismissed; or his right to custody and access of the children too can be affected.
Another cause for worry is the refusal of maintenance by the Court, itself. Such illustrations being very few; however, the Court can refuse alimony if proved that the wife has a good source of income; or if found that she has been living in adultery. From recent times, the laws in India have become very strict. The Court has taken a very firm stand as regards the status of the wife. Only the lawfully wedded woman is considered as the wife. Certain recent judgments pronounced by the Court have very clearly indicated that no mistress or second wife is entitled to maintenance. However, children from the second marriage are entitled to maintenance from the father.
Hence, the term "maintenance" has varied theories to it, and depends upon the circumstances of each and every single case. Thus, the quantum of maintenance cannot be assumed in advance. It is like a dreaded monster, especially for the one who wants to initiate a divorce, but is apprehensive that he may be asked to pay a huge amount as alimony to his wife; which he may not be in a position to afford. Nevertheless, whatever may be the amount of maintenance asked for, by the wife, the Court is usually very judicious and kind. It takes into consideration all the liabilities of the husband, with due regard to the requirements and necessities of the wife and children. Accordingly, it issues an appropriate maintenance order rendering justice to each of them. Nonetheless, the doors of appeal in the Court of Law are open to one and all, who are dissatisfied with the order passed.