Alimony also commonly referred to as, maintenance, settlement and spousal support. It can best be understood as the support extended in terms of money, property etc by one’s ex-spouse as ordered by a court in a divorce case.
A peep through into governing laws for Alimony in India
As Alimony germinates from divorce, we will discuss briefly the laws governing divorce in India. In India divorce is governed by different laws for different communities. As in case of Hindus, Sikhs, Buddhists and Jains it is governed by the Hindu Marriage Act, 1955. The Dissolution of Muslim Marriage Act, 1939 governs divorce for Muslims, for Christians is it made possible by way of the Indian Divorce Act, 1869 and Parsi can seek for divorce under the Parsi Marriage and Divorce Act, 1936.
There is a Special Marriage Act, 1954 for inter community marriages and divorces. The various laws were created to provide individual treatment to different communities and these have evolved through case laws over the past few decades.
Existing tenets for deciding Alimony in India & the Indian Scenario
In most cases in India, the fulcrum of divorce litigation is alimony, while in other countries its division of property; mostly in developed countries. This may be as a result of economic independence of women in such countries. It is seen that in developed countries alimony is made available mostly in cases involving wealthy couples or old couples who are ending long marriages.
Whereas in India the alimony is decided on the basis of income and background of the couple. In few cases, alimony paid to the wife is based on the standard of living enjoyed by the couple while married. There is no fixed parameter for deciding the amount of alimony to be provided, law on this aspect is still developing, and it is mostly based on cases and orders already passed and taking into consideration the facts of the case to be decided.
As far as the issue of division of property is concerned, the same is primarily decided on the facts of each case and for this principles of equity are used. This is required because our law is not clear on the concept of common matrimonial property. It is deemed that a property in India belongs to the person in whose name it is bought, even if it has been acquired during the course of marriage. Hence, even if a wife pays for some property and it is in the name of her husband, there is no way to prove during divorce proceedings that it rightfully belongs to her unless the wife produces evidence that she had paid for the said property.
While there have been recent judgment whereby because of social changes where women are no longer dependent on their husbands or other family members, their pleas for alimony need to be looked into with all facts, and it should be ensured that one of the spouses should not be enriched at the cost of the other. The verdict involving a Delhi based couple, where the wife wanted divorce, on account of physical abuse by her husband. She was supporting four children on a monthly income of rupees nine thousand (Rs. 9,000) went to the court to get a divorce and alimony. Instead, this woman has been ordered to pay her husband a monthly alimony of rupees five hundred, on account of the medical certificates that he presented in front of the court proving that he needed medical treatment and that he was without any livelihood. He convinced the court that he needed financial help more than his wife.
It’s an order that has taken many by surprise. A woman being asked to pay her husband alimony is not something that has happened many times in the past and whether it will now set a trend remains to be seen. It is felt by many that this order should be challenged as it will send out a not so positive message.
On the other hand there has been a recent judgement of trial court, perhaps one of its kinds, mentioned below in detail, which is a complete breakthrough perhaps in the history of alimony granted to the wife by the husband.
Recent breakthrough in granting Alimony
We can easily say that this could perhaps be one of the biggest divorce settlements cleared by a trial court in recent times in India. In a recent case where a Delhi-based couple mutually agreed to part ways after 20 years of marriage with the wife been granted full and final alimony of rupees five crore (Rs. 5,00,00,000).
The couple who got married in the year 1992, filed for divorce in February 2012, the husband initially agreeing to pay rupees one crore as the full and final alimony (settlement for divorce) later though the man had to pay rupees four crore more.
The husband has already paid Rs 50 lakh to the wife. The agreement states that out of rupees five crore, the husband has to make a fixed deposit of rupees two crore and fifty lakhs for his minor daughter. The remaining amount will be used by the wife to buy a house of her own.
Counsel for the husband, said that the couple has reached upon an agreement which will allow them to visit their children as and when they want. By way of this settlement both the husband and wife have sorted out their differences and have further undertaken not to interfere in future in each other’s lives. The counsel further said stated, “As such the entire matrimonial disputes at the end of day boil down to payment of alimony and once it is sorted, the couple can withdraw all the litigations against each other and thereafter live happily.”
The couple has two minor children; a boy and a girl, they have agreed upon taking the custody of one child each. While the husband will take care of his son, the wife will raise their daughter.
After the hearing, the family court gave its approval on the basis of the settlement deed, which stated that after the realization of rupees five crore, the right of the wife on the properties of the husband will stand extinguished.
This case is an answer to all questions that have been raised on the deciding tenets for divorce. In divorce cases, the courts must factor in the wife’s status and lifestyle while fixing alimony to ensure that she lives in reasonable comfort considering her status and mode of life she was used to when she lived with her husband, considering in the above mentioned case the husband being a wealthy businessman the amount decided as alimony was not repressive for him.
Therefore the amount of alimony to be paid cannot be fixed by law as it varies from case to case; the most important aspect is to maintain a balance while deciding the same. Should cater the dependent spouse with reasonable comfort as was given during the existence for their marriage and should not be repressive for the other spouse to provide the same. Further it would not be wrong saying that if India faces more divorces in the coming years (and if they involve high profile cases as well),the time is not far when the law in India too just like in abroad will evolve to allow a better sharing of matrimonial property between divorcees.