Alimony (Maintenance) is one of the most important right under divorce and matrimonial laws. There are about 90 % of divorce cases that are end as a fight about alimony. Under Indian law the alimony is provided to the spouse after separation or divorce. For the case of alimony all the assets, property and the income of both the husband and wife is considerable. Indian society made up of five major communities: Hindus, Muslims, Christians, Jews and Parsi. Each community has their personal laws derived from religious scriptures, traditions and customs. Therefore the grounds for Hindu woman to seek divorce and alimony may not be the same for every community.
Similarly the law on maintenance and alimony also varies from personal law to personal law. Under the Hindu Marriage Act, 1955, both the wife and husband are legally entitled to claim maintenance and alimony. However under the Special Marriage Act, 1954 only the wife is entitled to claim alimony and maintenance. The main concept of maintenance is to putting the spouse/wife back to the same position of comfort and lifestyle as she was before the time of marriage. There is no fixed amount of maintenance/alimony, it is all upon the discretion of a family court to fix the amount of maintenance/alimony that the husband has to pay either on a monthly or quarterly basis or in form of any lump sum amount. When a couple gets divorced by mutual consent the alimony/maintenance is to be paid either of the party is depend upon the agreement held between them. In such cases, alimony/maintenance could be paid by either the husband to the wife or by the wife to the husband. The court will pass the order of divorce on terms agreed between the couple.
Following are the alimony laws in India that gives protection to the wife.
Section 125 of CrPC provides maintenance to the spouse: Under this section the wife can file a case of maintenance before the Court and after considering the assets, property and income, of the husband the Court will award proper maintenance to the wife as per the requirement. An application for interim maintenance can also be filed for getting interim relief irrespective to caste or religion. According to the circumstances of the case the court may grant maintenance to the spouse.
Domestic Violence Act 2005: To stay at father-in-laws house. Under this Act the wife has the right to take back all the things or stree-dhan given to her during marriage and can also seek for compensation from the Court for any mental or physical cruelty. For this purpose the court may appoint an officer to keep a check and report accordingly.
Under Section 24 of the Hindu Marriage Act: It allows both the wife and husband to claim for maintenance where as under The Hindu Adoptions and maintenance act it allows woman to get an additional option. This act is applicable to Hindus only.
Types of maintenance under Hindu laws are as follows:
Interim maintenance
Interim maintenance is awarded by the court where in a husband is required to pay the maintenance costs to the wife along with the expense of the court proceedings. The interim maintenance is payable from the date of petition is filed till the time the final order.
Permanent maintenance
The provision of alimony or permanent maintenance takes effect when a decree of dissolution of marriage is obtained by the wife where by a husband shall be liable to pay his wife any particular amount either monthly or quarterly or in a lum-sum amount fixed by the court.
Facts that needs to be taken into consideration while awarding permanent maintenance to the wife
- The duration of the wedding, for example, if the couple is married for a very long time the entitled person will receive a life-long maintenance.
- The wife’s health and age to the earnings or economic condition of the individual who is to provide the alimony.
- The health of both spouse.
- The spouse that takes child custody would be entitled to either receiving greater amount while the child is a minor.
- The expenditure that can be incurred upon the child’s upbringing and education
- The way of living that the wife was used before divorce.
- The court must check wife’s own income or earning.