Divorce is a bitter war if things are not settled mutually. It is not only a breakdown of marriage but brings along other insecurities, including financial risks. Alimony or maintenance are heard by many but the exact legal reference is understood by a few. Explore what exactly it is and know how to avoid alimony in India on this page. Alimony in general can be understood as the amount of money payable to a person’s husband or wife after divorce. There is another term ‘maintenance’ which denotes the amount payable for basic expenses of any person. Maintenance may be paid to the spouse before finalising divorce as well if the other spouse is totally dependent for life support financially.
Does India Have Alimony?
The rules related to marriage and divorce are dealt with through personal/ religious laws in India. Under section 25 of Hindu Marriage Act, 1955, there is a provision for permanent alimony and maintenance for hindu couples. The provision does not differentiate husband and wife as receiver of alimony. It solely provides for payment of maintenance by one spouse to
another. Hence, if ‘Can a man get alimony in India?’ is a question that popped in your mind, the answer is yes!!
On the other hand, section 36 and 37 of the Special Marriage Act, 1954 also provides for rules regarding alimony and maintenance. The provision particularly gives rights to the wife who may through application require the court ordering her husband to pay maintenance sufficient for her support and necessary expenses of the proceeding. This makes the alimony rules women centric.
It is clear that couples married as per hindu rituals enjoy the right to maintenance against each other. However, those married under the Special Marriage Act (Court Marriage), only the wife gets the right to alimony and maintenance. If I am to look for legal assistance regarding divorce, alimony and maintenance, lawyers near me may clarify whether the marriage will be governed by Hindu Marriage Act, 1955, or the Special Marriage Act, 1954.
How is Alimony Calculated?
The amount of alimony payable to spouse depends upon the financial status and ability to pay as well. In case of payment of alimony on a monthly basis, the hon’ble Supreme Court has laid the 25% salary benchmark. It means that a husband may be liable to pay 25% of his monthly salary as alimony towards his wife after divorce. On the other hand, if it is a lump sum alimony in India, it will be calculated based on the spouse’s net worth and the standard of living of the spouse seeking alimony. For better understanding of alimony after divorce in Kolkata city, one may seek professional advice from a divorce lawyer in Kolkata. Now the question arises, can you avoid alimony?
How to Avoid Alimony in India?
People who are going through the rough patch of legal separation often worry about maintenance/ alimony. Mostly, the sword hangs around men in India since courts by default assume the wife to be financially unable to bear her expenses since she married a man as a dependent. Men also bear responsibility for children, parents, and other obligations. All of this
burdens men financially while they are suffering emotionally as well due to the collapsing marriage.
Points on How Alimony can be Avoided
● Working Spouse
The law for alimony requires a spouse to pay for maintenance of another spouse in case he/ she ‘has no independent income sufficient for her or his support’. If such spouse seeking maintenance is self-sufficient to maintain his/her own expenses, it can be a strong ground to avoid alimony in India.
● Professionally Qualified Spouse
If you are looking for answers on ‘how to avoid giving alimony in India?’ while your highly qualified spouse is sitting idly enjoying leisure time, this may benefit you. It is important to prove before the court that the spouse applying for maintenance/ alimony is educationally qualified enough to earn and support himself/ herself, but is not willing to.
● Contrasting Salary
The above two scenarios depict situations where either the other spouse is working, or is qualified to work. But even if both the spouses are working, but the one seeking maintenance is earning way more than the other against whom an application for alimony is filed, the tables may turn. If the applicant has a salary higher than the respondent, or there are other means of income available, the respondent may bring this fact in the knowledge of court. Even if a
noticeable difference is missing between the salaries, the respondent may show his/ her liabilities like maintenance of parents, home loans, etc.
● Separation Without Reason
Sometimes one spouse withdraws from the society of another, i.e. has stopped living together with the spouse in their matrimonial home. If the other spouse is still willing to continue the marriage while staying together as man and wife, this can be used as a defence to avoid giving alimony in India. Hence, if you are the husband whose wife has left for her maternal home and seeking maintenance from you, without holding any charges of cruelty under 498A or domestic
violence, the husband can suggest before the court that he is willing to stay with the wife and bear all her expenses. If she does not return, husband can rightfully avoid alimony in India.
● Mutual Consent
If the husband and wife have agreed for a mutual consent divorce in India, conditions of divorce are usually pre-decided. If one of those conditions already contains clarity regarding nonpayment of any maintenance by either spouse before or after divorce, that becomes a defence. The spouse against whom maintenance or alimony is being sought can claim that the same has been mutually settled between the divorcing couple.
When a married person makes physical relations with someone other than the legal spouse, this is called adultery. Although adultery is no longer a criminal offence, it remains one of the grounds for divorce in India. So, if the spouse seeks maintenance or alimony from another while he/ she is indulged in an adulterous relationship with someone, this turns into a definite answer on how to avoid alimony in India.
● Renunciation of Religion
The alimony laws in India are strictly applicable as per personal laws if the couple married as per rituals of that religion. Hence, if the spouse seeking alimony has renounced that religion and converted to another, the other spouse can avoid lump sum alimony in India.
● Prior Divorce Faulty
This is a rare scenario but may prove beneficial for someone. If your spouse had married earlier, the divorce was not obtained legally but by mutual understanding or mere separation, such a divorce is not valid. In such a case, marrying again does not give such marriage a legal status. Hence, if the facts match and you are looking for an answer to ‘how to avoid alimony in divorce in India?’, validity of marriage is the answer. You can prove before the court that your marriage is not legally valid due to faulty divorce in the first marriage. Thus, you will not be legally required to pay maintenance to your spouse.
● Invalid Marriage
There are certain conditions of validity of marriage provided under the Hindu Marriage Act, 1955 as well as other marriage laws. If one of these conditions has not been fulfilled in your marriage, you can avoid alimony in India questioning the validity of such marriage. Examples include marriage without consent, or within prohibited or sapinda relationships. Bigamy, i.e. marrying someone while spouse from prior marriage is still alive and the couple continue to be married (are not legally divorced), is another such example.
The laws of alimony in India may allow monthly or periodical maintenance to the spouse after divorce. However, the provision is conditional until the spouse enjoying such maintenance does not marry another person. Hence, if you have been paying maintenance to your spouse and recently got to know regarding his/ her remarriage, it is your solution to how alimony can be avoided.
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