Introduction
India is a country with rich cultural value systems. Every cultural practice has its special feature. One such practice is marriage. Since ancient times, society has considered marriage a sacrament.
It is an unbreakable bond that subsists till 7 births. Husband and wife live together under one roof and spend their married life. It is the husband who is responsible for maintaining the household. He earns money for the family.
But what if they decide to dissolve their marriage? How will a dependent spouse maintain herself? Will the other support her? Here, we will try to find out answers to these questions.
Meaning and context
Alimony
Another name for alimony is spousal maintenance/support. Alimony is a periodic sum that a court awards to the former spouse following separation/divorce.
When the court finalizes divorce, it orders the high-earning party to maintain the other for a lifetime/till remarriage. This provides spousal support so that he/she continues to live the same lifestyle even after divorce.
The court orders one party to pay alimony either in lump-sum or periodical payments. Alimony is a kind of maintenance that the court awards after dissolving a marriage. We can say that alimony is a kind of permanent maintenance.
Development of the concept of alimony
Once married, the parties have to carry out spousal/marital duties for their lifetime. They cannot deny it, even if there is mental or physical disparity/separation between the spouses. The husband has to support his wife despite sharing an estranged relationship.
Hence, the concept of alimony and permanent maintenance after the dissolution of marriage has emerged.
Who pays whom?
Earlier women were not financially independent. They had to depend upon their husbands for sustenance. That’s why, earlier, the husband had to pay maintenance before and after marriage to wife.
But today, even women are earning. So, if the husband is unable to sustain himself, he can ask for maintenance/alimony.
Who decides the payment of maintenance and alimony?
The husband and wife take their matter to court to seek remedy. Hence, it is the court that decides the amount of maintenance/alimony that a party should pay. One spouse has to maintain another until his/her lifetime.
The court takes into consideration the following conditions to order the grant of alimony:
Financial conditions of both spouses
- Income of the applicant
- Income of the respondent
Other conditions:
- Age, educational qualifications, and ability to earn
- Health conditions- one spouse suffering from a health ailment can claim maintenance from another.
- Conduct of the parties
The court has the power to alter/rescind the decree of the grant of alimony. The court can do so when the applicant has remarried or indulged in adultery.
Amount and duration of alimony
The partners whose marriage lasted more than 10 years get lifelong alimony.
Custody of child/children- Section 26, Hindu Marriage Act, 1955
A party can claim maintenance of children in custody. The respondent has to support minor children and look after their education.
Section 25
Permanent alimony-
Either the wife or the husband can apply to the court for alimony. The court can order alimony while passing any decree or after it. It can be either a gross or monthly or periodical sum, for the lifetime of a plaintiff.
The court can vary, modify or rescind any such order if:
- circumstances of parties, change
- the party has remarried,
- one becomes unchaste or has sexual intercourse out of wedlock.
Section 37 of the Special Marriage Act, 1954 states the same.
Code of Criminal Procedure, 1973
Section 125
A person having enough means who neglects or refuses to maintain
- wife (unable to maintain herself), who has not remarried,
- legitimate or illegitimate minor child, whether married or not,
- legitimate or illegitimate child (not being a married daughter) who has attained a majority, but is physically or mentally abnormal
- father or mother, unable to maintain himself or herself,
Then, the court orders the person to provide a monthly allowance for them.
No wife shall receive an allowance from her husband under this section if:
- she is living in adultery,
- without any reason, she refuses to live with her husband,
- they are living separately by mutual consent.
If not complied, imprisonment of one year.
Judicial decisions
Rani Sethi v/s Sunil Sethi
- The court ordered the respondent-wife to pay maintenance of Rs 20,000 to her husband. Also, she had to pay Rs.10,000 as litigation expenses.
- She had to clear all the dues in installments within three months from the date of judgment.
Kalyan Dey Chowdhury v Rita Dey Chowdhury
- The amount of alimony must fit the parties’ status and the capacity of the spouse to pay maintenance.
- It held that 25% of the net income of the husband is a “just and proper” amount as alimony.
Rosy Jacob v. Jacob A. Chakramakkal
- The wife managed her school successfully. She purchased a mini-bus and had wet land in her village.
- The husband was not getting on well in his profession. He mortgaged his house and had sold everything except one-and-half acres of land.
- The court held that it was unnecessary for the husband to pay any alimony to the wife.
Chand Dhawan v. Jawaharlal Dhawan
- Section 25, HMA makes provision for the grant of permanent alimony in the future after any decree.
- The court passes any decree under HMA affecting the marital status of a wife.
- At this time, the Court invokes its ancillary or incidental power to grant permanent alimony.
Rajnesh vs Neha
- Granting alimony ensures that the failure of the marriage does not turn the dependent spouse into a destitute.
- The court has to consider the marriage duration to determine the permanent alimony.
- If custody of children is with the wife, the husband has to give her reasonable alimony.
Conclusion
Hindu law considers marriage to be a sacrament. Persons tied together in marriage have reciprocal responsibilities. They continue even after the dissolution of marriage. This is reflective of the fact that Hindy law provides for the provision of alimony.
A spouse maintains the other spouse regardless of their marital status. Judiciary has played an important role in determining the quantum of alimony. Obviously, one cannot deny the responsibility once one is out of the marriage.
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