A lump sum alimony can be a woman's best strategy, say analysts

A Delhi High Court’s (HC’s) recent ruling stated that a wife cannot be denied maintenance on grounds of occasional acts of adultery. In yet another ruling, the Bombay HC asked a woman to pay alimony to her estranged partner. Although the ruling was specific to the case and can be challenged in a higher court, it is usually men who pay alimony in the event of a divorce in India. There have been exceptions, and it helps to know the basics of maintenance laws.

Simply put, alimony is a monetary compensation granted to a spouse who is unable to support himself/herself. 

Tushar Agarwal, advocate, Supreme Court, says, “It is also referred to as spousal support or maintenance. This alimony is decided based on the earning power of the spouse and it becomes necessary to obtain the right sources of income for both individuals.”

‘Alimony’ and ‘maintenance’ have a thin line of distinction, says Siddharth Jain, co-founding partner, PSL Advocates & Solicitors, “Under Section 125 of the Criminal Procedure Code (CrPC), the court orders maintenance that can also be claimed by parents or children.”

Types of alimonies

According to Kritika Seth, founding partner, Victoriam Legalis — Advocates & Solicitors, there are two kinds of alimony.

“Interim maintenance is given during court proceedings and the amount provided at the final stage of legal separation,” says Seth.

Who is entitled to it?

More often than not, it is the woman who gets alimony.

“Depends upon the applicable personal law. In Hindu law, the husband is also entitled to maintenance and alimony. However, under the Special Marriage Act, it is only the wife who can claim it,” says Jain.

In a recent court case, it was ordered for the working wife to be entitled to alimony as well. 

“It was on grounds that it is the duty of the husband to provide financial support to the wife. In some cases, a jobless husband was ordered to pay alimony to a wife with a stable income,” says Agarwal.

The husband may also be entitled to alimony, albeit rare. A husband can claim maintenance from his wife if he has a permanent disability.

Compensation: The compensation depends upon matrimonial laws specific to religions. Or civil laws like the Special Marriage Act, 1954, and Section 125 of the CrPC (Common Social Welfare Law). The Hindu Marriage Act, 1955, applies to Hindus, Jains, Sikhs, and Buddhists.

“Maintenance to be paid is determined by a court considering various parameters to decide on the amount, including income of the spouse(s), their standard of living, and financial status. Their investments, networth, as well as their financial needs, are also taken into account,” says Seth.

Consequence of non-payment: If alimony is not paid pursuant to a court, an application for execution of an order can be filed under various Sections of the Hindu Marriage Act, the Family Courts Act, Code of Civil Procedure, 1908, as well as protection of women from the Domestic Violence Act. Section 128 of the CrPC can also be filed before a magistrate’s court. Samir Malik, partner, DSK Legal, says, “Section 125(3) of the CrPC provides that if the party against whom the order of maintenance is passed fails to comply, the same shall be recovered by issuing a warrant, and the magistrate may award sentence of imprisonment for a term which may extend to a month or until payment.”

The order of maintenance is to be enforced as a money decree of a civil court and in accordance with the provisions of the CPC, including provisions for civil detention and attachment of property.

Lump sum or frequent: After separation, alimony can be taken either as a one-time lump sum or a fixed payment, which could be monthly or quarterly.

M Barve, founder, MB Wealth Financial Solutions, says, “In case of mutual divorce, the alimony may be mutually agreed upon. Else it is decided by the court.”

Most experts say it ranges between 20 per cent and 35 per cent of the husband’s networth.