Marriage is considered as a pious ceremony in India between two individuals but the situation worsens when these marriages result in Divorce. Divorce is not a mentally stressful affair but it can have deep financial repercussions in the form of Maintenance or Alimony. Alimony is the monetary compensation awarded by one of the spouses to the other who is unable to maintain himself/herself. The person who is not able to maintain himself has the right to receive alimony during or after the court proceedings. It is a kind of financial support and can be received by the spouse, children, or parents.
Types of Alimony
There are mainly two types of Alimony based on when they are paid:
- The interim maintenance is paid at the time of court proceedings. It is given in instalments.
- The final amount is paid at the time of legal separation. It is usually paid in a lump sum amount.
Factors determining the duration and amount paid as Alimony
- The duration of the marriage is one of the relevant factors to determine the amount and duration of alimony. If any marriage lasted for more than 10 years then the dependent spouse is entitled to lifelong alimony.
- The spouse who has a great career and has a high level of income is liable to pay a huge amount as alimony.
- The age of the spouse is also a considerable factor while determining the amount of alimony. A young recipient will receive fewer amounts as alimony as he/she has a lifetime to become financially sound and stable.
- If one of the spouses has a high standard of living then the other spouse usually the men have to pay a large amount of alimony so that she could maintain herself and live a stable life.
- If one of the spouses is enjoying a prosperous career the other one is entitled to receive a handsome amount as alimony.
- If any of the spouses are having poor health and suffering from any form of disability the other spouse must maintain the other spouse and the other one is entitled to receive a large amount as alimony.
- If any of the spouses is not working it is the duty of the other to maintain the other with the basic livelihood so that he/she can live a life of dignity. In this case, the husband has to provide a monthly amount so that she can maintain herself properly.
- When one of the spouses, say a wife, is not earning but she is well educated and qualified that she can maintain herself, the husband is liable to maintain her for the time for which she is looking for a decent job.
- If any of the spouses after divorce started a new relation whether married to the other one or not, he/she is not legally liable to claim any amount of alimony from the first spouse.
Alimony under Hindu Law
Hindu Marriage Act, 1955 and Hindu Adoption and Maintenance Act, 1986 have enumerated provisions related to Alimony in India among Hindus. Under the Hindu Marriage Act, any of the spouses can present an application before the court to determine the amount and duration of alimony. The following points are taken into consideration while determining the amount. They are:
- Income of the person who has to give the alimony
- Property of the person against whom it is claimed
- Conduct of the parties towards each other
- The living standard of the recipient
- Income and Property of the applicant
A wife is entitled to maintenance under the Hindu Adoption and Maintenance Act. Under this act she is granted alimony on the following grounds:
- When the husband has deserted his wife without her consent.
- If the husband is treating her wife with physical or mental cruelty.
- If the husband is having an affair with any other woman.
- If the husband has converted his religion.
- If the husband is suffering from any virulent form of leprosy.
Alimony under Muslim Law
Under Muslim law, the husband must maintain his wife and after his death, the father-in-law has to maintain his deceased son’s wife. A muslin female can claim Maintenance either under the Muslim Women (Protection of Rights on Divorce) Act, 1986 of the Criminal Procedure Code. Under Muslim law, a wife is entitled to alimony after the divorce has been granted. She is entitled to maintenance under the iddat period. A Muslim woman is entitled to receive several benefits. They are:
- She is entitled to receive the amount of Mehar which was discussed at the time of marriage.
- She is entitled to a reasonable amount during the iddat period and if she is not able to maintain herself beyond the iddat period, she will receive a certain amount as alimony.
- She is entitled to receive all the property received by her before the marriage or during the marriage by any of the relatives.
- If she is unable to maintain her children, she is entitled to receive a reasonable amount to maintain them and fulfil all her obligations towards them.
How to Calculate Alimony in India?
In India, alimony or maintenance is mainly covered under personal laws. No such uniform statute is present to ascertain the amount of Alimony. The amount of Alimony is calculated based on the following factors:
- Total monthly income of both the spouses
- Number of children and the custody of children
- Educational background of both the spouses
- Number of years the couple was married
- The living standard of both the spouses
The Supreme Court in the case of Kalyan Dey Chowdhury V. Rita Dey Chowdhury held that the alimony amount should not exceed 25% of the income of the spouse against whom the maintenance is claimed. This amount is suitable for the monthly alimony paid by one spouse to the other. If the alimony is given in a lump sum amount it could range from 1/5th to 1/3rd of the spouse’s net worth.
Taxability of Alimony
There are no such provisions for the taxability of Alimony under the Income Tax. Indian courts have given a better understanding of the taxability of alimony. If the alimony is paid one in a lump sum amount it is considered as a capital receipt hence it is not taxable in the hands of the recipient. The alimony amount which is received monthly or repeatedly is considered as a revenue receipt. Therefore, it is taxable in the hands of the recipient.
Conclusion
Alimony is an important element of the divorce proceeding. It is an integral part that helps the dependent spouse to live a life of dignity and fulfil his/her responsibilities and fulfil their needs. The laws for alimony and divorce maintenance are equal for both the husband and wife. It considers that the richer spouse should provide support to the financially weaker spouse. Initially, the right to claim maintenance was not much prevalent among people seeking a divorce. The era of feminism and the spread of education among people have contributed to the growing applicability of alimony in divorce cases.
