Indian Law about Alimony Rights

Divorce Alimony Rights

Whatever be the grounds for divorce, the underlying truth about marriage is that it becomes the obligation of both parties to support each other once they are in this relationship. It continues even after divorce and is known as Alimony. It is a monetary compensation granted to the spouse who is unable to help himself/herself. The right of alimony depends on the earning power of the person and the person who is economically dependent on the marriage. The individual can be a spouse, dependent children, and even poor parents.

There are two types of alimony:

  • Maintenance amount that is given during the time of court proceedings
  • The second one is the money given at the time of legal separation

The alimony can be taken as:

  • a one-time lump sum amount
  •  as a fixed payment – it can be monthly or quarterly or as per the requirement of the spouse

Who is entitled to the Alimony Rights?

It is usually the woman who has the alimony rights. Sometimes, it is possible that the man can prove that he has been harassed and the court would order the female to compensate for that.

The husband can also be ordered by the court to return the ‘Stree-dhan,’ which is all the assets received by the woman at the time of the marriage. This would be all that has been received by her both from her parents and her in-laws.

What is the entitlement during grant of Alimony Rights?

The amount to be paid could vary and is fixed by the court depending on the individual cases and situations.

Factors that impact the amount and duration of alimony are as follows:

  • the length of the wedding, for example, if the couple is married for a decade the entitled person will receive a life-long maintenance
  • the spouse’s age and health  the earnings or economic condition of the individual who is to provide the alimony – also any other property that he/she owns
  • the health of both spouse
  • the general behaviour of the two parties
  • the spouse that maintains child custody would be entitled to either receiving greater amount while the child is a minor or pay lesser maintenance
  • the expenditure that can be incurred upon the child’s education and upbringing.
  • the social standing and the way of living that the wife was used to when she was living with her husband.
  • Other aspects/circumstances of the case, that the court feels need to be considered
  • Other genuine liabilities of the husband, such as wholly dependent old parents, may be duly examined by the court. If the wife is employed/working and has her independent sources of income, the same may also be taken into account

Who gets the alimony?

Wife – there can be three possibilities in this case.

a) when she is earning – in case the man has a very high earning power and has a decent financial status then she would be entitled to alimony.

b) when she is not earning – in this case, the man has to ensure that the woman gets to maintain her standard of living as she has been following all her married life.

c) if she remarries-if the woman remarries, then the man has to pay only for the children and not the woman.

The Hindu marriage act, 1955, is the guiding factor for those who are governed under it – specifically the section 25 of the act. At the time that the divorce decree is finally granted, the section is taken into consideration. If, however, an application is made for this purpose even after the divorce, the court will consider this and grant alimony. In a judgement given by the Supreme Court in the year 2013, it was maintained that:

“… While granting permanent alimony, no arithmetic formula can be adopted as there cannot be mathematical exactitude. It shall depend upon the status of the parties, their respective social needs, the financial capacity of the husband and other obligations. … the court is required to take note of the fact that the amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband. At the same time, the amount so fixed cannot be excessive or affect the living condition of the other party. … it is the duty of the court to see that the wife lives with dignity and comfort and not in penury. The living need not be luxurious but simultaneously she should not be left to live in discomfort. The court has to act with pragmatic sensibility to such an issue so that the wife does not meet any kind of man-made misfortune.”

Further, the court can cancel all alimony rights for the individual if it finds out that the particular person has remarried, or has indulged in other relations outside wedlock.

Grounds for Divorce – The basics of laws

Grounds for Divorce the basics of laws

What really is Divorce?

Divorce means the ending of marriage by a competent court, based on the grounds for divorce that a particular individual puts forward. It gets covered under the family law rules in India. It can be with the mutual consent of both of the parties involved or any one person in the couple seeking the divorce.

Laws governing Divorce in India

Due to the presence of various religious beliefs in India, the Indian Judiciary has executed laws independently for couples belonging to different religious faiths. The acts under which divorce is implemented are as follows:

  • The Hindu Marriage Act, 1955
  • The Parsi Marriage and Divorce Act, 1936
  • The dissolution of Muslim Marriage Act, 1939
  • The Special Marriage Act, 1956
  • The Foreign Marriage Act, 1969

What can be the grounds for divorce to file a petition?

Divorce can be obtained:

  • Divorce by Mutual Consent
  • Divorce without Mutual Consent/Contested Divorce

Divorce by Mutual Consent:

  • When the husband and wife both agree to a divorce
  • For the acceptance of the petition, however, the pair should be living separately for over a year or two years and able to prove that they cannot live together. It does not necessarily mean that the couple should live in a different location but only have to prove they are not living as a married couple.
  • Most of the time the duo agrees to such a divorce as it’s comparatively economical and not as traumatic as a non-mutual divorce.
  • Children’s custody, maintenance, and property rights are some of the matters that have to be mutually accepted.
  • There are three viewpoints concerning which a husband and wife have to reach an agreement.
  1. First one is maintenance issues or alimony. The support does not have any maximum or minimum limit.
  2. The second one is child custody. Child care can be shared or joint or exclusive depending upon the understanding of the spouses.
  3. The third one is property. The duo has to decide how the property will be distributed between both of them. The property can be both immovable and movable property.
  • The duration of mutual consent divorce ranges from 6 to 18 months, depending on the judgment of the court.

Divorce Without Mutual Consent/Contested Divorce:

In the case of a contested divorce, either of the parties involved can ask, but only on specific grounds for divorce. While filing the petition for the divorce, the couple has to state the reason behind the decision. There are various reasons declared by the law which can be indicated as a ground for divorce:

Adultery

Adultery means voluntary or consensual sexual intercourse between a married person and another, whether unmarried or married.

Adultery may be proved by:

  • Circumstantial evidence
  • Contracting venereal disease

Cruelty

Cruelty includes both physical and mental cruelty.
Some Instances of Cruelty are as follows–

  • false accusations of adultery or unchastely
  • dowry demand
  • refusal to have children or marital intercourse
  • impotency
  • drunkenness
  • the threat to commit suicide
  • false complaints by a wife to husband’s employer
  • incompatibility of character
  • unrecoverable marriage breakdown

The following reasons are not considered as cruelty-

  • normal wear & tear of married life
  • refusal by the wife to resign from her job
  • desertion per se
  • outbursts of temper

Desertion

Desertion is the rejection by one individual of all the obligations of marriage i.e. abandonment of one by the other spouse without any reasonable cause and the approval of the other.

The following five conditions must be present to constitute a desertion; they must co-exist to offer a ground for divorce:

  • the factum of separation
  • intention to desert
  • desertion without any reasonable cause
  • abandonment without the consent of another individual
  • legal period of two years must have run out before an appeal is presented

Conversion

A spouse can ask for a divorce if the other spouse converts to another religion.

Insanity/Mental Disorder

A husband/wife can request a divorce on the grounds of insanity if he/she is incapable of performing marital duties due to mental illness.

Communicable Disease/Leprosy/Venereal Disease

The other party can ask for a divorce if the spouse suffers from a contagious disease, such as syphilis, HIV/AIDS, gonorrhoea or an incurable form of leprosy.

Renunciation

A spouse can seek divorce if the other party has waived his/her married life and has opted for sannyasa.

Presumption of Death

A spouse can request for divorce if the other has not been heard of for at least seven years and therefore, presumed dead.

What documents are required to file for divorce?

Before filing the petition for the divorce, the following documents should be assembled:

  • the proof of address of husband
  • the evidence of address of wife
  • the marriage certificate
  • four passport size wedding photographs
  • evidence to prove the living arrangement of the spouses i.e. that they are living separately for more than a year or two
  • proof of the failed efforts of reconciliation, along with the grounds for divorce stated clearly
  • the income tax statements of the last 2-3 years
  • professional details and present pay
  • information about the family background
  • property and other assets details owned by the couple