Being mindful of interim maintenance and final alimony
The financially vulnerable spouse has the right to seek financial support from the higher earning spouse. In a majority of the cases, it is the wife who receives this support. “If the wife has insufficient or no independent income to support herself and the expenses of the proceedings, the court may on an application by the wife, order the husband to pay the expenses of the proceeding and also a monthly allowance during the course of the proceeding,” says Bharat Chugh, former judge and lawyer, Supreme Court. He adds that this allowance is determined with regards to the income of both the parties.
The Hindu Marriage Act, 1955, Hindu Adoption and Maintenance Act, 1956, Domestic Violence Act, 2005, and Section 125 of the Criminal Procedure Code, 1973, provide for maintenance as one of the rights which a wife can claim. The reasoning behind this provision is that until a couple of decades ago, women were financially reliant on men and had no choice but to stay in miserable matrimony.
There are two types of monetary support which the higher earning spouse usually has to give to the other one — interim maintenance under which the amount is given during the pendency of court proceedings and the second is the permanent alimony, which is given at the time of the passing of the final decree. “Sections 24 and 25 of the Hindu Marriage Act provides for interim and permanent alimony,” says Supreme Court lawyer Preeti Singh.
“To claim alimony, the wife needs to submit not only evidence of her income and assets before the court but also evidence of monthly expenses and which she ought to make in order to maintain the same standard of living which she would have enjoyed had she been at her matrimonial place,” says Singh.
How much alimony needs to be given to spouse?
In case of mutual consent divorce, both spouses decide the maintenance and alimony together. However, in contested matters, the court intervenes and decides the issue of alimony or maintenance on the merits of each case. “The power of the court to grant alimony is not limited to cases where the decree is obtained by the wife. Courts have powers to grant alimony to the wife even where the husband is granted a decree. It is quite possible that no alimony or maintenance is awarded based on the facts and circumstances of the case,” adds Singh.
There is no fixed formula as different courts have adjudicated differently, keeping in mind the unique circumstances of the case at hand. “While granting permanent alimony, no arithmetic formula can be adopted as there cannot be mathematical exactitude and one set formula cannot be applied in all cases blindly,” says senior Supreme Court lawyer Geeta Luthra.
The Supreme Court in Kalyan Dey Chowdhury vs Rita Dey Chowdhury, SLP (C) No. 34653 of 2016, held that a benchmark of 25% of the net salary of a husband was held to be a “just and proper” amount as alimony to his former wife. It has stated that “maintenance is always dependent on the factual situation of the case and the court would be justified in moulding the claim for maintenance passed on various factors”.
In the matter of ‘Annurita Vohra Vs. Sandeep Vohra, 110 (2004) DLT 456, the Delhi High Court was of the view that it must first arrive at the net disposable income of the husband or the dominant earning spouse. If the other spouse is also working, these earnings must be kept in mind. This would constitute the Family Resource Cake, which would then be cut up and distributed among the members of the family.
The risks beyond the control of courts
The real fight begins after documents (including income and asset details) are submitted in the court to decide on alimony for the estranged wife. “The case of corporate or government employees is usually transparent, but the problem emerges with businessmen who show themselves as paupers even if their family holding is in Fortune 500 companies! Would the member of a business family who has no fear of societal inhibitions be subjected to the rigours of ensuring that his wife live according to his status, face the court’s fair adjudication of 1/3rd to 1/5th of his income in real terms and not according to ITRs,” says Luthra.
“Many courts cannot even fathom the standard of living. The income and assets are camouflaged in companies and subsidiaries and corporate credit cards,” she adds.
If a spouse hides his/her income, the onus would be on the affected party to prove it, by way of tax returns or property papers etc. Unless the affected party proves, a fair compensation remains elusive.
Another major drawback of permanent alimony or one-time settlement is the execution of such orders. Mostly orders of maintenance and alimony end up in filing contempt petitions by the aggrieved wives. “Enforcement of orders of maintenance is the most challenging issue, which is encountered by the applicants. If maintenance is not paid in a timely manner, it defeats the very object of the social welfare legislations. Execution petitions usually remain pending for months, if not years, which completely nullifies the object of the law,” adds Luthra.
Recently, in Rajnish Vs Neha (2021) 2 SCC 324, the apex court laid guidelines with regards to quantum and manner of maintenance. Further, this judgment even considered the failure to execute maintenance and alimony orders and the fulfilment of such orders. It further observed that the court cannot be a mute spectator watching flagrant disobedience of its interim orders.
How child’s custody affects the settlement
Maintenance can also be claimed by minor children, physically or mentally challenged adult children, adult unmarried daughters, and by the mother or father of a spouse who are unable to maintain themselves. “In case the custody of child is with the wife, the child’s expense must be included in the alimony,” says Singh.
A study conducted by Shubhada Maitra and Gayathri K.R. for the Tata Institute of Social Sciences, with the support of the Bombay High Court, titled ‘Divorce Trends and its Implications for Children’s well-being: A study of Family Court in Mumbai’, analysed divorce cases in Mumbai family courts in the decade of 2000. It was found that in most of the cases, men initiate custody for minor children. In an overwhelming number of cases, the court has declared the mother to be the custodial parent. “While significant time has passed, the findings of this study more or less reflect the status quo,” says Chugh.
Similarly, another trend observed was that it is the husband who is ordered to pay maintenance for wife and children both during and after the proceedings.
How joint property is distributed
Courts have approached section 27 of the Hindu Marriage Act, 1955 through different perspectives. It has been reasoned that any relief under section 27 is subject to the discretion of the court. The law provides an intriguing avenue for relief to a wife in addition to alimony.
The section states: “In any proceeding under this Act, the court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife.”
This means that based on the facts and circumstances of the case, the court has the power to decide on the distribution of assets held by both man and wife, including streedhan, joint property and other possessions which the couple had possessed before and during their matrimonial journey. “The court may also make provisions in the divorce decree with respect to any property belonging jointly to the husband and wife,” says Chugh.
Are ‘mutual consent divorce’ or ‘out-of-court settlement’ better options?
In mutual divorce, the settlement amount is fixed consensually by both the parties. “When a couple gets divorced by mutual consent, the decision on whether any alimony or maintenance is to be paid is a matter of consensus between them. In such cases, alimony or maintenance could be paid by either husband to the wife or vice versa. The court passes the decree of divorce on terms agreed between the couple. The decree binds the couple and is enforceable by the court,” says Singh.
“In the absence of the marital property law in the country, matrimonial settlement and alimony payments have too strong an element of uncertainty and lack of clarity. However, it is in an out-of-court settlement, mostly fixing a one-time alimony, that substantial justice seems to happen, particularly in business families,” says Luthra. She adds that the amount ranges from a paltry sum of Rs 25,000 to several crores or hundreds of crores depending on sensitivity and fairness of both sides.
If both sides are accommodating and flexible, then a mutual consent divorce or out-of-court settlement saves precious time and a lot of effort.
Right to residence a landmark verdict
A woman can claim ‘right to reside’ in her matrimonial home under the Protection of Women from Domestic Violence Act, 2005. Further, even right of residence has been recently adjudicated by the top court in Satish Ahuja versus Sneha Ahuja wherein it was held that right to residence is paramount for a wife, irrespective of whether she is working or not.
It has repeatedly been held by various courts that one cannot ignore the fact that an Indian woman has been given an equal status under Articles 14 and 16 of the Constitution and she has a right to live with dignity and according to the status of her husband.