Any legal matter involving family members is always an issue of various dimensions and is usually resolved by applying a multi-faceted approach. Property disputes and divorce are such issues where in spite of appropriate laws the evaluation of the circumstances leading to the dispute and the interpretation of the relevant provisions plays a critical role. Similarly, alimony and maintenance are two such issues that are solely ascertained by the courts and the facts and circumstances leading to divorce are crucial factors on basis of which courts ascertain alimony to be paid and the maintenance amount.
These issues related to alimony, maintenance and custody are resolved based on the presented facts and the human predisposition of the judge while he arrives at a legal conclusion for the problem at hand. This irregularity and lack of uniform measure fuels the ongoing debate, over the extent to which family law cases should be resolved by relying on rules and the extent to which they should be decided on a discretionary basis. The wide discretion provided to judges to ascertain each case based on its merits to reach an appropriate solution to a particular case is always contested by at least one party who seems to have got the less profitable bargain, by preferring appeals in higher courts. This not only causes the burden on the judiciary to increase but also leads to a steady string of demands by some members of the society for framing relevant rules to ensure consistency, save costs, and protect the rights of individual family members.
However, this distinction is not very sharp and also less achievable because there is a continuum between wide discretion and inflexible rules.
What is Alimony?
Alimony is the monetary and financial support from the spouse during the divorce proceedings and it is usually a court-ordered financial payment made by one spouse to another. Since now the family dynamics are altered as both the spouses are working and career-oriented, modern couples also move forward with signing a pre-nuptial agreement before the wedding, by which alimony is ascertained beforehand to avoid any future conflict.
In general practice, alimony amounts are paid through regular installments as per the predetermined schedule. However, a one-time settlement by way of diving property and assets (jewelry, cash or business) is also given as alimony.
The Judges are burdened with the duty to evaluate the circumstances leading to divorce and then decide upon suitable alimony so that the divorce does not lead to a burden on the spouses. Thus, the spouse has to financially support the other spouse also even though they are no longer married. Spousal support is intended to help cover the basic needs of a former spouse such as food, clothing, shelter, and transportation and so that one spouse can maintain their lifestyle prior to the divorce, or to allow one of the spouses’ sufficient time to obtain financial stability.
Alimony can either be interim or permanent alimony wherein the former is given during the time of court proceedings whereas the latter is given after the dissolution of marriage or the judicial separation agreement comes into effect. The courts ascertain whether this amount is payable in a lump sum or by fixed periodic payment. The Court also has the jurisdiction to decide the time until which it has to be paid that is the payment continues for a lifetime or until a certain specific date.
What is Maintenance?
Maintenance after divorce is about the husband providing financial support to his wife and paying for her living expenses. In general sense, it is provided not just exclusively to the wife but also the children for their maintenance after divorce and custody matters. Since, Indian Personal Laws are based on specific religions thus, every law has specific provisions for dealing with maintenance issues, however, for preserving the rights of women in a patriarchal society one provision provides the wife the right to claim maintenance from her husband, uniformly irrespective of her religion. Section 125 of the Criminal Procedure Code (CrPC), 1973 provides an effective remedy for neglected persons to seek maintenance, especially for a wife in India.
Historical Context of Alimony & Maintenance
Historically, speaking alimony was Historically speaking alimony was awarded in a limited sense since it was an unwritten law developed by Ecclesiastical Courts in England. During these times the courts, legal system as well as societal structure did not permit divorce since marriage was considered sacramental and instead allowed the legal monstrosity called Judicial Separation that offered a possibility of reconciliation in the future. Thence, the husband was supposed to carry on his legal duty of supporting his wife whose legal rights in money and property were attached to her husband.
Furthermore, divorce is given on the grounds based on fault theory, thence, the wife could collect alimony and support from the husband because of whose fault the marriage was ended. In fault-based jurisdiction, alimony is decided on the extent and degree of fault and the maintenance of status.[1]
Modern View
Earlier, the women had no personal property or financial security and the traditional family structure, it was evident that in an event her marriage ends she will have no money thus the husband provided alimony or maintenance as ascertained by the courts. However, now women are employed and have legal rights over property thus the concept of alimony has been extended to include providing husband alimony too.
Thus, now even the husband can demand alimony since only demanding the husband to make alimony payment was regarded as unequal treatment and hence is unconstitutional. Thus, the Courts balanced out the historical goal of rewarding women since sex-based statutes are inherently discriminatory and limit the means to make a case-by-case analysis of the facts and circumstances at hand.
Laws Related to Alimony & Maintenance
Under the Hindu Law, the husband has a duty to maintain his wife but this view has been expanded by the courts in applications of legal provisions and while pronouncing judgments concerning alimony and maintenance.
Section 24 of the Hindu Marriage Act,1955 entitles both husband and wife to claim maintenance from their spouse irrespective of gender and maintenance solely depends on factors like earning, assets and liabilities, financial standing, employment of either spouse on basis of which spousal support is determined.
However, a wife’s rights are still protected more since the Indian societal structure is disadvantaged to a woman. Thus, Section 18 of the Hindu Adoptions and Maintenance Act,1956. Entitlement of alimony is based on the grounds of divorce through which the courts evaluate the reason which led to a dispute in marriage and the circumstances which brought the couple to the court. Alimony to the wife is available under other Personal Laws also however permanent alimony is available only to the wife under the Special Marriage Act.
However, Section 125 of CRPC provides a tool for justice since regardless of religion a husband has to maintain his wife and there is no requirement of divorce too.
Courts View
- Nivya VM v. Shivaprasad N.K.[2]
This is an important case where the Courts emphasized that during proceedings if it appears that either of the spouse no independent income that is sufficient for bearing basic expenses and even for moving forward with the proceedings itself then the Courts on the application of that spouse will order the other spouse to bear such basic expenses and provide reasonable maintenance in accordance to the income of the spouse.
This paved way for a fair and reasonable understanding of the concept of alimony and maintenance especially where one of the parties is highly disadvantaged especially in monetary terms and is hence forced to endure harsh circumstances since they have no reprieve or safeguard.
- Firdos Mohd. Shoeb Khan Vs. Mohd.Shoeb Salim Khan[3]
Under the Hindu Law, the husband has a duty to maintain his wife but this view has been expanded by the courts in applications of legal provisions and while pronouncing judgments concerning alimony and maintenance.
- Mamta Jaiswal Vs. Rajesh Jaiswal[4]
MP HC in this case took a crucial stand and asserted that the purpose of maintenance and alimony laws is for the benefit of the aggrieved spouse thus taking undue or unfair advantage of either spouse is not permissible. Hence, the wife cannot take advantage of her wrong and simultaneously harass the husband.
- Kalyan Dey Chowdhury Vs Rita Dey Chowdhury[5]
This case served as a revolutionary and a benchmark judgment which the courts all over the nation continue to rely on. In this judgment the court opined that alimony is meant to equalize the conditions of both parties where the spouse with higher income pays the lesser. Here, the court crystallized the law that spouses with less income or no income should get alimony not more than 25%. Through this, they protected the interests of both spouses.
- Shailja & Another v/s Khobbanna
The wife is entitled to alimony even if she is qualified. However, the court added that qualification does not mean that she does not have a right to maintenance or that the amount of maintenance can be reduced since there can be certain circumstances where she is capable but is not earning or no employed. Thus, what the wife is capable of earning and what the wife is earning are two different things that cannot be equated for the purpose of reducing maintenance.
- Alphonsa Joseph v Alphonsa Rose[6]
The purpose behind alimony is to maintain the same standard of thus if the income of the wife is not sufficient to maintain the same standard as she enjoyed during the time span of her marriage. Then she will be entitled to a certain amount of alimony or maintenance however this will be ascertained based on reasonability and the circumstances.
- Rani Sethi vs Sunil Sethi[7]
The wife was directed to pay her husband since she was earning more and the husband was unable to earn due to his disability. Thus, she was ordered to pay an amount of Rs. 20000 as monthly maintenance and an additional amount of Rs. 10000 as litigation expenses.
The wife left the matrimonial house without any reason and refused to reconcile even when the husband was willing and later demanded maintenance. The claim was rejected since there was no rationale behind leaving and hence, she was not entitled to seek the benefit of welfare legislation.
However, these cases are few in number since more often than not wife are given at least little alimony or maintenance by the courts either because of them being non-earning members or because of custody issues. Thus, even a faulty spouse gets benefit since courts are a little biased towards women when it comes to custody or maintenance issues.
· Abdul Rahim Raheman Shiakh vs Saida Abdul Rahim Shaikh[9]
Both husband and wife were earning senior citizens where the husband was earning Rs. 1700 whereas the wife was earning Rs. 1800. The trial court ordered the husband to pay Rs. 1000 to the wife as maintenance even though there was a mere gap of Rs. 100 in salary and the wife was earning more this amount was reduced to Rs. 750 by the Bombay High Court. Still, the rationale behind this judgment continued to questionable and debatable since in certain circumstances going beyond the monetary aspect or even the capability to provide relief is against the very law.
The wife was earning Rs. 35000 per month and her husband was earning mere Rs. 5000, still the court rejected to award alimony for the sole reason that the husband was fit to maintain himself. This is a clear bias on parts of the court since had the roles been reserved wife would have been given 25% income as alimony.
Conclusion
The more family law is seen as a set of fixed rights and responsibilities, the more likely it is for a rule-based system to be used; but if family law is seen as being about achieving justice for the particular individuals involved, it is more likely that a discretionary-based system will be employed. Hence, it is evident that issues like alimony and maintenance are dependent on a wide variety of factors hence a discretionary-based system is best suitable since the case is decided on its own special facts after taking into consideration all the relevant evidence even though this creates more costs in both the preparation of and hearing of a case.
However, it is important that there are certain guiding principles that even check the ‘discretion’ of the courts while awarding maintenance or alimony since documentary evidence, special circumstances, rationalistic and reasonable approach, appropriate interpretation of facts and laws as well as adopting an approach that is not gender biased is essential.
[1] Chester G. Vernier and John B. Hurlbut, The Historical Background Of Alimony Law And Its Present Statutory Structure, (April 15, 2021, 9:29 AM), https://core.ac.uk/download/pdf/62558423.pdf
[2] Nivya VM v. Shivaprasad N.K.[OP (FC) No. 26 of 2015 (R)]
[3] Firdos Mohd. Shoeb Khan Vs. Mohd.Shoeb Salim Khan, Family Court Mumbai,PETITION NO. 119 OF 2013
[4] Mamta Jaiswal Vs. Rajesh Jaiswal, II (2000) DMC 170
[5] Kalyan Dey Chowdhury Vs Rita Dey Chowdhury, Civil Appeal No. 5369 Of 2017
[6] Alphonsa Joseph v Alphonsa Rose, OP(Crl.).No. 274 of 2018
[7] Rani Sethi vs Sunil Sethi, CM(M) 169/2009
[8] Anil v. Mrs. Sunita, Criminal Revision No.829 of 2014
[9]Abdul Rahim Raheman Shiakh vs Saida Abdul Rahim Shaikh, criminal writ petition NO.681 OF 2017
[10] Narender v. Minakshi, C.R No. 6709 of 2012
