be mindful of the interim Maintenance and last Alimony
The financially weak spouse has the right to seek financial assistance from the higher earning spouse. In most cases, it is wife who receives this support. “If the wife has insufficient or no independent income to support herself and the expenses of the proceeding, the court may, on the application of the wife, order husband to pay the cost of proceedings and also a monthly allowance During the proceedings,” says former judge and lawyer Bharat Chugh, Supreme court, He says that this allowance is determined with respect to the income of both the parties.
Hindu Marriage Act, 1955, Hindu Adoption and Maintenance Act, 1956, Domestic Violence Act, 2005, and Section 125 of the Code of Criminal Procedure, 1973, Maintenance as one of the rights that can be claimed by a wife- Provides nutrition. The rationale behind this provision is that till a few decades ago, women were financially dependent on men and had no option but to live in miserable marital lives.
There are two types of monetary support that the higher earning spouse usually has to give to the other – interim maintenance, which is paid during the pendency of the court proceedings, and permanent alimony, which is paid at that time. Are being given. Regarding passing of the final decree. “Sections 24 and 25 of the Hindu Marriage Act provide for interim and permanent maintenance,” says Supreme Court lawyer Preeti Singh.
“To claim alimony, the wife not only has to produce before the court the proof of her income and assets, but also the proof of the monthly expenses that she should have made in order to maintain the same standard of living, Which she used to enjoy. At her matrimonial place,” says Singh.
How much alimony does the spouse need to pay?
In case of divorce by mutual consent, both the husband and wife together decide the maintenance and maintenance. However, in disputed cases, the court intervenes and decides on the issue of maintenance or maintenance on the merits of each case. “The power of the court to grant alimony is not limited to cases where a decree is obtained by the wife. The courts have the power to grant alimony to the wife even where the decree is granted to the husband. It is quite possible that no alimony or maintenance is awarded depending on the facts and circumstances of the case,” says Singh.
There is no fixed formula as different courts have given different verdicts keeping in mind the unique circumstances of the case. “While granting permanent alimony, no arithmetical formula can be adopted as there may not be mathematical accuracy and a set formula cannot be applied in all cases,” says Geeta Luthra, senior Supreme Court lawyer.
The Supreme Court in SLP(c) No. 34653 of Kalyan De Chowdhury v Rita De Chowdhury, 2016 held that a benchmark of 25% of the husband’s net salary as alimony is a “just and fair” amount. his ex-wife. It states that “maintenance always depends on the actual state of the case and the court shall be appropriate in molding the claim of maintenance passed on various factors”.
In the case ‘Annurita Vohra Vs’ Sandeep Vohra, 110 (2004) DLT 456, the Delhi High Court was of the view that it should arrive at the net disposable income of the first spouse or the principal earning spouse. If the other spouse is also doing a job, then these earnings should be kept in mind. This will constitute a family resource cake, which will then be cut and distributed among the family members.
Risks beyond the control of the courts
The real battle begins when documents (including details of income and assets) are produced in court to decide on alimony for the estranged wife. “Corporate or government employees are usually transparent, but the problem arises with businessmen who portray themselves as paupers, even if their family holdings are in Fortune 500 companies! Can a member of a business family be exposed to social barriers? Luthra says, “For the rigors of ensuring that his wife lives according to his situation, 1/3 to 1/5 of his income actually faces an impartial judgment of the court.” , and not as per ITR.”
“Many courts cannot even fathom the standard of living. Income and assets are concealed in companies and subsidiaries and in corporate credit cards,” she adds.
If the spouse hides his income, then the affected party will have an obligation to prove it through tax returns or property papers etc. Unless the affected party proves, a fair compensation remains elusive.
Another major drawback of permanent alimony or one-time settlement is the execution of such orders. Most alimony and alimony orders end in contempt petitions filed by the aggrieved spouses. “Enforcement of maintenance orders is the most challenging issue that applicants have to face. If maintenance is not paid on time, it defeats the basic purpose of social welfare laws. Execution petitions are usually pending for months. lasts, if not years, which completely defeats the purpose of the law,” says Luthra.
Recently, in Rajneesh v Neha (2021) 2 SCC 324, the apex court laid down guidelines with regard to the quantity and manner of maintenance. Further, this decision also considered the failure to execute maintenance and alimony orders and the fulfillment of such orders. It further said that the court cannot be a mute spectator in view of the gross disobedience of its interim orders.
How child custody affects settlement
Maintenance can also be claimed by the mother or father of minor children, adult children with physical or mental disabilities, adult unmarried daughters and spouses who are unable to sustain themselves. “If the custody of the child is with the wife, then the expenses of the child should be included in the maintenance,” says Singh.
A study by Shubhada Maitra and Gayatri KR for the Tata Institute of Social Sciences in collaboration with the Bombay High Court, titled ‘Divorce Trends and Its Implications for Children’s Welfare: An Analysis of Divorce in Mumbai’ to be done. Cases in the Mumbai family courts in the 2000s. It was found that in most cases, men initiate custody for minor children. In a large number of cases, the court has declared the mother to be the custodial parent. “While significant time has passed, the findings of this study more or less reflect the status quo,” says Chugh.
Similarly, another trend was observed that it is the husband who is ordered to pay maintenance for the wife and children during and after the proceedings.
How joint assets are distributed
Courts have approached Section 27 of the Hindu Marriage Act, 1955 from various points of view. It has been argued that any relief under section 27 is subject to the discretion of the court. The law provides a trickier way for relief to the wife apart from alimony.
This section states: “In any proceeding under this Act, the court may make such provisions in the decree as it thinks fit and proper with respect to any property presented at or around the time of marriage, which is jointly Both can be related to the husband. and the wife.”
This means that depending on the facts and circumstances of the case, the court has the power to decide on the distribution of the property of both the man and the wife, including Stridhan, joint property and other property that the couple had before and after their marriage. was during journey. “The court can also make provision in the decree of divorce in respect of any property jointly owned by the husband and wife,” says Chugh.
Are ‘Mutual Consent Divorce’ or ‘Out of Court Settlement’ a better option?
In mutual divorce, the settlement amount is decided by both the parties by consent. “When a couple is divorced by mutual consent, the decision to provide any alimony or maintenance is a matter of consensus between them. In such cases, alimony or maintenance may be paid by the husband to the wife or vice versa. The court passes the decree of divorce on the agreed terms between the couple. The decree binds the couple and is enforceable by the court,” says Singh.
“In the absence of matrimonial property law in the country, an element of uncertainty and lack of clarity in matrimonial settlement and alimony payment is very strong. However, it is in an out-of-court settlement that mostly fixes lump-sum alimony. There seems to be enough justice, especially in business families,” says Luthra. She says the amount ranges from Rs 25,000 to several crores or hundreds of crores depending on the sensitivity and impartiality of both the parties.
If both parties are friendly and flexible, a mutually consensual divorce or out-of-court settlement saves precious time and a lot of effort.
Right to Residence a Historic Verdict
Under the Protection of Women from Domestic Violence Act, 2005, a woman can claim a ‘right of residence’ in her matrimonial home. Moreover, the right of residence has also been decided recently by the apex court in Satish Ahuja vs Sneha Ahuja in which it was held that the right of residence is of paramount importance to the wife, whether she is working or not.
It has been held time and again by various courts that one cannot ignore the fact that an Indian woman has been accorded equal status under Articles 14 and 16 of the Constitution and should be treated with respect and without the status of her husband. have the right to live accordingly.