What is Alimony?
Alimony (Maintenance) is a legal obligation on a person to provide financial support to their spouse during or after marital separation or divorce under divorce maintenance rules in India.
The term alimony comes from the Latin word alimōnia (“nourishment, sustenance”, from alhere, “to nourish”), from which also alimentary (of, or relating to food, nutrition, or digestion) and the Scots law concept of aliment, and was a rule of sustenance to provide for the wife’s lodging, food, clothing, and other necessities after divorce.
There are five major communities in the Indian Society: Hindus, Muslims, Christians, Parsis, and Jews. These communities have their own personal laws derived from religious scriptures, customs, and traditions. Hence, the basis of seeking divorce and alimony varies according to their cultural beliefs.
Alimony vs Child Support
Often, people confuse alimony with child support. However, they are two completely different types of financial remedies. In simple terms, the financially weaker spouse receives alimony. Whereas child support is about providing financial assistance by one parent to the other, who has custody of the child. Alimony, in many cases, is awarded alongside child support and at the discretion of the judge presiding over the case.
There are two types of Alimony
As per divorce alimony calculator India the alimony is of two types:
- First is Interim Maintenance amount provided during court proceedings
- Second is the amount provided on final legal separation
It could either be in the form of:
- a one-time lump sum amount
- a fixed payment – which could be monthly, quarterly or as per the spouse’s requirement
The decision to award lump-sum alimony or monthly/periodical payment depends on the court as per the alimony calculator in India.
Who is eligible for Alimony?
If a couple marries under the Hindu Marriage Act, 1955
Under the Hindu Marriage Act, 1955, both the husband and wife can legally claim permanent alimony and maintenance under divorce alimony rules.
Divorced via mutual concern
In case a couple decides to get a divorce mutually, the decision on whether any alimony/maintenance is to be paid by either party is a matter of agreement between them. In such cases, alimony/maintenance could be paid by either the husband to the wife or by the wife to the husband subject to the mutual understanding between the couple. The court then gives directives with reference to the agreement between the couple under divorce maintenance rules. It binds the couple to follow the directives enforced by the court.
Provision of Alimony under The Hindu Adoption and Maintenance Act
As per the Hindu Adoption and Maintenance Act, a Hindu wife whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.
- Under Hindu Marriage Act – 1955, a Hindu wife can live independently from her husband without forfeiting her claim to a maintenance, if the husband:
- He is guilty of desertion or abandoning her without a proper cause. Without her consent or against her wish or willfully neglecting her;
- Has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;
- Is suffering from a virulent form of leprosy;
- Has any other wife living;
- Keeps a mistress in the same house in which his wife is living or habitually resides with a mistress elsewhere;
- Is no more a Hindu by conversion to another religion;
- Creates any other situation that justifies living separately.
Cases where Hindu wives don’t qualify for alimony; Under the Hindu Adoption and Maintenance Act:
- A Hindu wife shall not be granted separate accommodation and maintenance from her husband in case she is unchaste or by conversion ceases to be a Hindu.
- When the wife lives separately and brings up all the children without any support from the husband. In the case of Meera Nireshwalia v. Sukumar Nireshwalia, there was a clear case of seclusion, thus the court granted the wife separate residence and maintenance.
- The plea for maintenance by a wife can also be continued under clause (g) even covered on the basis of one or other clauses i.e. clause (a) – (f) of section 18(2) substantially but not fully. In case the wife fails to rightly prove the specific grounds urged by her, she cannot be denied relief; Meera Nireshwalia v. Sukumar Nireshwalia, AIR 1994 Mad 168.
Quantum of Alimony
When alimony is paid periodically
The Supreme Court in one of its landmark judgments has set a benchmark for maintenance to be paid by a husband to his estranged wife. It stated that 25% of the net salary of the husband might constitute a “just and proper” amount as alimony. However, a hard and fast rule for alimony calculator in India has not been defined under any law. Neither is it possible due to its dependency on the facts and circumstances. As each case differs, the court administers the divorce maintenance rules.
A one-time lump sum amount Alimony
Under divorce alimony rules no lump-sum settlement benchmark exists. Although it ranges from 1/5th to 1/3rd of the husband’s net worth and is a one-time settlement.
Below are some important factors that decide the quantum of Alimony under Hindu Law, and divorce maintenance rules.
If the wife is working and drawing a handsome salary
Under divorce maintenance rules: When the wife is working and drawing a handsome salary, the Court will certainly take the earning into consideration along with the husband’s income. Depending on the facts and situations of the case, the court decides whether the wife will receive alimony/maintenance. And if yes, then they decide on the amount she shall receive from the husband. This is how the alimony calculator in India works.
What if Husband earns less than his wife
Provisions under the Hindu Marriage Act, 1955, allow a Hindu husband to claim alimony from his wife. When he earns less than her or does not earn at all, though this is rare.
Time Period of Alimony
How long Alimony need to be paid by the spouse?
Usually, the husband to maintain his wife until her lifetime.
What if wife remarries?
If the wife remarries, the husband is not responsible for her maintenance. The husband can petition the court for orders to stop the alimony.
What in case of a change in circumstances where the wife started earning more than her husband and the husband is unable to maintain his wife due to financial crises?
Likewise, if there is a change in situations, for example, the husband is unable to maintain the wife due to a financial crisis or any other adverse situation. Where the wife is financially independent earning a decent salary. In this situation, the husband may petition the court to address the changed circumstances under divorce alimony rules. The court may take into account the facts, evidence, and circumstances prevailing at that point of time, modify, vary or rescind the order.
What if the earning of a spouse increases after the award of permanent Alimony?
When the alimony/maintenance paying spouse earns more after the award for permanent alimony/maintenance has been passed. Then the spouse receiving alimony/maintenance may make a petition addressing the court. It will address the issue related to the increase in the husband’s income. But she will have to prove her inability to maintain herself with the alimony already awarded by the court. The court may take into account the facts, evidence, and circumstances prevailing at that point of time to increase the alimony payable. Although, it’s not necessary that a wife is entitled to more alimony in case the husband earns more.
When the person receiving alimony gets richer in the future (creates/inherits more wealth) than the one paying, will the flow of alimony be reversed?
It depends on the facts and situations of the case. In case the wife receiving alimony inherits wealth and becomes richer. Then the husband would have to make a miscellaneous petition to prove the same to the court. The court will again look into the merits of the case, that is, evidence produced. To show that the wife is a richer lady than what she was at the time of grant of the alimony. Also that the husband is incapable of maintaining his wife. So, if the husband claims alimony for his maintenance it will again have the court’s decision. After looking into the parameters for awarding alimony/maintenance as per the divorce alimony calculator in India.
Taxability of Alimony
Periodical payout: Alimony in the form of monthly/quarterly payouts is treated as revenue receipt and taxed in the hands of the receiver. Added to her total income and taxed as per the tax bracket. No deductions are available for the payer.
Lump-sum – Lump sum alimony is treated as a capital receipt and hence is tax-free.
What belongs to a wife after separation?
Factors considered with alimony calculator in India include any type of jewellery (gold, silver, precious stones, alloy), fixed property and other assets like cars, paintings, artefacts, appliances, furniture, etc. Presented to the woman before, after and during her marriage.
To claim alimony in case of a dispute, people can use A list of items with signatures of two witnesses can be given
Gifts from anyone to her is the wife’s property: husband, in-laws, parents, friends, relatives, and acquaintances.
Women’s earnings before or after.
What does not belong to a wife after separation?
- Any jewellery, like a gold chain or ring, and other valuables gifted to the husband by the wife’s parents. Before, after and during the course of the marriage.
- Any asset bought by the husband in the wife’s name without passing it on as a gift.
- The wife’s earnings spent on the household is unclaimable.
The law is equal for both and considers that the richer spouse must support for the financially weaker spouse. It ensures the livelihood and wellbeing of a couple under divorce maintenance rules as per the divorce alimony calculator in India.
How to calculate my alimony?