Temporary support refers to monetary payments by one spouse to another after or during divorce referred to as alimony. It allows the spouse with less income earning capacity to maintain life within reasonably acceptable standards as during the marriage.
Alimony laws in India also vary with personal laws like the Hindu Marriage Act, the Muslim Personal Law, and the Special Marriage Act.
Overview of Alimony in Divorce
Alimony is obtained by the court depending on the outcome of the divorce, and the financial requirements of the recipient of alimony. Maintenance or alimony in India is, however, not a legal feature of the divorce but is, however, available where certain circumstances occur. Permanent alimony under Indian law is provided under several different personal laws, and all the laws have some provisions to ensure that the spouse does not remain in hardship after the rightful divorce.
What is Alimony?
Alimony is a form of support order granted to a spouse out of the other spouse’s income after the annulment of marriage. It is to provide the recipient of alimony the same standard of living as that enjoyed during marriage and hence deems it proper. Alimony can last for both a temporary period and a permanent base for the duration of the marriage.
Who Can Claim Alimony?
Generally, the spouse who is financially dependent on the other has the right to claim alimony. This typically applies to:
- Women: Most commonly, women are granted alimony, particularly when they have been homemakers or financially dependent on their husbands.
- Men: In cases where the husband is the primary caregiver or financially dependent on the wife, the husband can also claim alimony.
- Non-working spouses: If one spouse is unemployed or has a low income, they may be entitled to receive alimony.
- Disabled or ill spouses: A spouse who is physically or mentally disabled or suffering from illness may also be eligible for alimony.
It is important to note that alimony is not automatically granted in all divorce cases. The spouse seeking alimony must prove that they are entitled to financial support under the relevant law.
Legal Framework for Alimony in India
India has clearly codified laws of divorce where there are two systems – one for the Hindus (Christian /Parsi) and the other for Muslims. Even though these personal laws provide for alimony, they are not similar to each other.
Hindu Marriage Act, 1955
Under the Hindu Marriage Act, which applies to Hindus, Sikhs, Buddhists, and Jains, alimony can be claimed under Section 24 and Section 25:
Section 24: This section enables a spouse to apply for maintenance pending the determination of divorce. It is a short-term relief formula until the end when the aspect of alimony is determined or decided.
Section 25: This section enables Laws of perpetual alimony after the divorce has been granted by the court. These factors include the ability of each party; the standard of living enjoyed by the couple before the marriage; the duration of the marriage; need of the surviving spouse; and the ability of the receiving spouse to support him or herself.
Muslim Personal Law
Alimony being under Muslim Personal Law is regulated by the Muslim Women (Protection of Rights on Divorce) Act, 1986. The law provides that a Muslim husband must support his wife for a period of iddat (which is three months after the divorce) and any other period the wife may require to be on her own. Wife also has an option of being paid a lump sum or a regular allowance depending on the circumstances that surround the marriage.
Special Marriage Act, 1954
Special Marriage Act comes into force when two people from two different religions agree to get married or those who do not wish religious marriage. According to Section 36 of the Act, a spouse has a right to seek maintenance during the subsistence of a divorce. The court is likely to take into consideration factors such as the income earned by the spouse, the duration the couple was married, and anything else relating to the need of the other spouse who seeks alimony.
Parsi Marriage and Divorce Act, 1936
Under the Parsi Marriage and Divorce Act, alimony can be granted if one spouse requests it, based on the financial situation of both parties. The court evaluates the needs of the spouse requesting maintenance and the ability of the other party to provide it.
Christian Divorce Laws
For Christians in India, divorce laws are governed by the Divorce Act of 1869. The Act allows a spouse to seek alimony in cases of separation or divorce. Like the other personal laws, the court considers the financial needs, ability to pay, and other factors when awarding alimony.
Types of Alimony
Temporary Alimony (Interim Maintenance)
Temporary or interim alimony is paid while the divorce is being settled to enable the financially deserving spouse to manage. Before granting a divorce, the court looks at issues like the financial status of the two partners and the period they have been married. This alimony is usually awarded when one spouse is unable to support themselves during the divorce process, and the court early establishes the need to maintain a status quo as the lawsuit unfolds.
Permanent Alimony
The permanent alimony is awarded once a party has been taken through the process of divorce. It gives financial security for the future in the form of cash gifts or regular weekly, monthly or yearly stipends. The court evaluates several factors, including:
- The financial status of both parties: This means, for example, income, property, and debts.
- Standard of living during the marriage: The idea of the court is to enable the receiving spouse to preserve the standard of living.
- Marriage duration: This is likely particularly if one party to the marriage has been out of the work force for a long time or has sacrificed his or her career for the benefit of the marriage.
- Needs of the requesting spouse: This includes matters concerning kids or else people with disabilities.
- Ability of the paying spouse: Affordable means the paying spouse must be able to pay for the alimony without putting him in a difficult situation.
Lump Sum Alimony
Specific relief alimony is a payment made by a paying spouse in a single consolidated sum as against the periodic payment. This is usually applied when the hired spouse is incapable of the regular contributions, and the ton is assessed in accordance to the circumstances of the partners. It may be discussed during a divorce.
Such alimony helps to ensure that the dependent spouse is provided for after a divorce has been granted.
Factors Considered by the Court for Granting Alimony
Some of the key factors considered by the court include:
- The income and financial status of both spouses: The property earning capacity of both spouses is another criterion for deciding alimony. There are, however, certain factors that would cause the spouse with the higher income to pay alimony to his or her counterpart.
- The duration of the marriage: Long-term marriage relationships are deemed to have higher alimony payments owing to the standard of living and perhaps financial dependence over time.
- The health and age of the spouses: Cohabiting older or sick spouse may receive higher alimony because the other spouse has to be assured of the former’s ability to fend for themselves after the divorce.
- The financial and emotional needs of the spouse requesting alimony: The court will consider how much the requesting spouse needs the money and/or emotional support when there are children involved or any other circumstances.
- The conduct of the spouses: Also there is the consideration of the conduct of spouses during the marriage periods as a factor to be taken into account by the court. It is particularly important if a spouse’s behaviour was abusive or otherwise negative in the past: this might matter to the court.
- Any children involved: Whereby there are children, the court may factor the price for the upbringing of those children when awarding alimony.
How to Apply for Alimony in Divorce?
To get an alimony, the spouse must, therefore, seek a petition in the corresponding family court as provided in the Hindu Marriage Act or the Special Marriage Act and so on. The following steps are generally involved in the process:
- Filing the Petition: The spouse seeking alimony must then ask for an application of alimony with the court of the family. The present petition will state the reasons for the financial request and present proof of necessity.
- Court Hearing: The court will have occasions where each party can argue out their side of the story. In the course of the hearings the court is going to evaluate the financial condition of both spouses, as well as the circumstances which can influence the decision concerning alimony.
- Interim Maintenance: If pendent lite support is sought, the court will order rehabilitative alimony until finally determined by the court.
- Final Judgment: In this case, depending on the proofs that will be presented in court and according to the facts presented above the court shall make a final decision of alimony.
Conclusion
Spousal support is one of the most important components of divorce because the financially non-independent party needs to be supported after divorce. Indian law says that husband and wife are entitled for maintenance, and maintenance can be claimed under different laws for different religions and the court considers several factors in decision making. Although this process might take some time and includes many stages anyone can know the legal prerequisites, types of alimony and factors considered by the court.
If you are in need of alimony you should certainly get legal advice to ensure that you are familiar with your position as well as the processes that you should go through. For some couples, a critical element of sound legal representation, post-divorce is guaranteed fair financial support.
