In a married couple, when chooses to leave each other’s company and opt for separation, the economically weaker party has the right to seek some monetary consideration for his/her sustenance. The monetary consideration is known as alimony or maintenance. Maintenance is when a weaker party to the marriage receives a monthly allowance from the financially stronger party. Whereas, alimony is a lump-sum payment that is made once and for all to the economically weaker party thereby absolving the financially stronger party of his/her responsibilities that accrue from a marriage. Though it is generally seen that the husband mostly is liable to pay alimony or maintenance to his wife, however, there are multiple cases where wife had to pay alimony to the husband. Therefore, gender does not act as a bar in a petition for alimony or maintenance.
HISTORY
The responsibility to maintain and provide for the financially disabled spouse is not a new concept in our society. The first case where provision obligations were imposed was seen amongst the Hebrews, Egyptian and Greeks. A Mesopotamian husband who left his wife without reasonable cause had to forfeit a piece of silver as per the Code of Hammurabi. The Roman Law under the command of Justinian I also required the forfeiture of a piece of gold from the spouse who was found guilty. The medieval church in England believed that dissolution of marriage did not pardon the spouse from the obligations of marriage. Hence, the husband was required to pay his wife a sustenance allowance. The concept of Alimony, soon, reached different parts of the world, including India where many Hindu Jurists like Yajnavalkya and Manu strongly advocated the responsibility of a husband to support his wife despite any differences that may arise between the couple.
LAWS UNDER WHICH A PARTY CAN CLAIM ALIMONY
Section 37 of the Special Marriage Act, 1954
Section 25 of the Hindu Marriage Act, 1955
Section 36 – 38 of the Indian Divorce Act, 1869
TYPES OF ALIMONY
Temporary: Temporary Alimony is granted during the pendency of the petition of divorce or judicial separation that can be paid by the way of monthly instalments. Temporary Alimony is for a definitive period of time.
Permanent: Permanent Alimony is granted after the judicial separation or divorce proceedings have been concluded. The alimony so granted is for an indefinite period which ceases if the party receiving the alimony dies or re-marries.
Rehabilitative: Rehabilitative Alimony is paid only till the non–earning spouse starts earning or finds a source of income in order to support himself/herself. It is a short-lived arrangement to help the non-earning spouse gain skills or find a stable job for himself/herself.
Reimbursement: Reimbursement Alimony is the payment to the spouse for incurring certain expenses which may include the educational expenses borne or the expenses that helped boost the income of the other spouse.
FACTORS TAKEN INTO CONSIDERATION WHILE DECIDING ALIMONY:
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Financial status of the parties
While deciding the quantum of alimony, one of the most important factors that must be kept in mind is the financial status of both the parties to the marriage. It is extremely vital to understand the ability of the parties to the marriage to sustain themselves. Once that is determined, it is upon the court to decide if the party demanding alimony should be granted alimony at all or not; or the alimony that is to be granted needs to be permanent or just a temporary set up.
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Lifestyle of the parties
The way the parties have been living their lives prior to the initiation of the proceedings is also an important consideration. It must be noted that the alimony so granted should fall in line with the lifestyle of the party demanding the alimony.
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Conduct of the parties
The conduct of the parties to the marriage is a relevant concern in deciding the quantum of alimony. It has to be taken into account if either party is guilty of infidelity or cruelty, then it will be a point of substance while deciding the alimony.
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Years of marriage
If the parties have not been married for a very long time, then generally the alimony so granted is temporary as it is believed that the parties are still young and have the capacity to earn money and sustain themselves. However, if the couple has been married for a long time, then the alimony so granted is mostly permanent and the paying party is expected to maintain the disabled spouse till the death of the receiving party or remarriage. The responsibility to pay alimony simply does not absolve on the death of the paying party. In such a situation, the alimony is paid from the estate left behind.
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Custody of the kid
The party having the custody of the child is deemed to have more responsibility as they are expected to bear all the child care expenses. In this case, the courts have the duty to carefully deliberate upon the quantum of provision ensuring that both the child and the party maintaining the child are financially well taken care of.
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Health conditions of the parties
If one of the parties to the marriage who is demanding alimony is suffering from any physical or mental ailment, the other party is bound by a moral duty to bear those expenses or reimburse the same if the suffering party is unable to do so given their poor health conditions.
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Age of the parties
Age plays a pivotal role in deciding the quantum of the alimony. If the party demanding provision has reached an age where it is extremely difficult for him/her to find work or is physically disabled to do so, then a permanent alimony is granted to the aggrieved party. However, if the party demanding alimony is young and able, a temporary alimony will be granted keeping in mind the other factors as well.
In U. Sree v. U. Srinivas 2012 (12) JT 358, it was observed by the Hon’ble Supreme Court of India that there is no arithmetic formula that is to be kept in mind while deciding the alimony as there are multiple factors that are taken into consideration. However, the court is duty bound to ensure that the wife leads a comfortable life, if not a luxurious one.
In the case of Bandana Kayal Alias Singh v. Arun Kumar Singh (1989) 1 Cal LJ 503, the Hon’ble Calcutta High Court held that if the husband was working at the time of institution of the suit, he would be liable to pay alimony to his wife. Just because he resigned from the job during the pendency of the petition or immediately after would not act as a bar for the wife in claiming provision.
A similar view was taken in Reema Salkan v. Sumer Singh Salkan (2019) 12 SCC 303, where the Hon’ble Delhi High Court observed that the husband’s moral duty to maintain his wife does not get pardoned merely because he is not working at that moment if the husband has educational qualifications and is physically abled.
In the case of Mayurakshi Basu v. Sandeep Basu (2013) 1 ICC 391, the Hon’ble Calcutta High Court stated that the alimony given to the wife should not be more than 1/3rd of her husband’s net worth.
In the case of Manish Jain v. Akanksha Jain (2017) 15 SCC 801, it was held by the Hon’ble Delhi High Court that the financial status of the wife’s parents shall not be taken into account while deciding the quantum of alimony or maintenance.
CONCLUSION
The idea behind the provision of alimony was to support the financially disabled spouse to ensure that he/she is able to lead a life that is comfortable and dignified. However, in my opinion, the provision of provision is grossly misused in our society. It has become more of a lifestyle than a necessity. Spouses want to claim alimony not because they need financial support, but because they want to harass the other spouse. This is extremely unfortunate to see this level of misconduct by the parties. The idea behind providing alimony has taken a back seat and it has gained a different meaning altogether. Our judicial system needs to develop a method of strict evaluation while dealing with the cases of this nature.
Author:
Ameesha Goel