Know Your Rights: Alimony in India
In Know Your Rights, we simplify the rights you’ve been given, so you know how to exercise them.
Alimony, derived from the Latin word alimonia, means sustenance. It means an allowance or amount the court orders one spouse — in India, it is generally the husband — to pay to the other spouse for sustenance, while and after undergoing a divorce.
It is regarded as one of the most important rights under divorce and matrimonial laws. Therefore, we asked Mumbai-based family lawyer and advocate Mukesh Chhabra to explain a few concepts related to alimony.
I’m confused between alimony and maintenance. What’s the difference?
While the divorce is underway in the court, the money given from one party to another is known as maintenance. Once the two are legally separated, the money paid is known as alimony.
Who can ask for alimony?
The law on alimony and maintenance differs between personal laws. But across all personal laws, husbands can be liable for paying alimony to wives.
For instance, while under the Hindu Marriage Act, 1955, which is applicable to only Hindus, both the husband and the wife can ask for alimony; under the Special Marriage Act, applicable to all citizens of India, only the wife can ask for it.
The reverse is hardly ever practiced.
On what basis does the court decide the alimony amount?
The court considers various parameters to decide on the amount to be given as alimony, including: income of the spouse(s), their standard of living and financial status. Their investments, net worth, as well as the financial needs of each individual are also taken into account.
However, there is no formula that the court follows when deciding an alimony amount; generally, it is in the range of one-fifth to one-third of the gross earnings of the spouse who has to pay alimony. Other factors the court also considers are the number of years the couple has been married and the number of children they have.
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Can I claim alimony all at once?
The alimony amount can be taken either as a one-time lump sum, or as a fixed payment that could be given monthly or quarterly, depending on the requirement of the recipient. Chhabra advises recipients to choose to be paid the entire amount at once so as to avoid potential loss of future payments if, say, the spouse loses their job or dies.
Does the husband have to pay alimony if the wife is earning?
If the wife is working and drawing a salary that covers her living expenses, the court will certainly take that into consideration along with the husband’s income. Based on these factors, it will decide whether alimony/maintenance is to be awarded to the wife and, if yes, for what amount.
Under the Hindu Marriage Act, 1955, the husband is allowed to claim alimony from his wife if he happens to be earning less than she is.
Is the husband liable to pay alimony if the wife remarries?
The husband can request stopping of payment or reducing the amount. However, he will have to continue to pay alimony in support of any children.
What happens if the alimony is not paid on time?
Once the court passes the order, the supporting spouse has to pay alimony within the timeline decided. If payments are not made in time, there are consequences; the court can take further action against the spouse, such as penalties.
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When does alimony not need to be paid?
The husband is not required to pay alimony in case the wife remarries though he would still need to pay alimony in support of any children resulting from their union.
He can also contest alimony on the grounds that the wife is employed, though he cannot deny payment if it’s been ordered. The court will consider the amount she’s making. For instance, if she’s making money enough only to survive, but led a better lifestyle while married, it is possible that the court asks the husband to pay to supplement her earnings in order to maintain that standard of living.
In cases where the wife is earning more than her husband is, it may be difficult for her to get alimony, Chhabra says.
How does alimony differ in cases of divorce by mutual consent and those that are contested?
If a couple is undergoing divorce by mutual consent, the decision of who pays whom is a matter of agreement between them. With mutual understanding, the couple can decide whether the husband has to pay the wife, or vice-versa. The court will pass the divorce order based on terms decided between the couple.
If the divorce is contested, the decision of alimony rests with the court.
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If the person receiving alimony gets richer by creating or inheriting more wealth, can the party paying alimony stop?
It differs from case to case. In case the wife becomes richer, the husband will have to make a case to the court, and the court will look into the evidence provided to show that the wife has become richer compared to the time the alimony was granted to her.
What if the spouse paying alimony or maintenance starts earning more after the income mentioned in the alimony document has been passed?
Just because one spouse’s income has gone up, doesn’t mean that the one receiving alimony is entitled to more. The spouse receiving alimony would have to prove their inability to maintain themselves with the amount they are already receiving.