DECLARATION

I Prabhjot Kaur Chalotra, hereby declare that the project report “A

Critical analysis alimony and maintenance laws in India” prepared by me
under the guidance of Ms. Ipsita Acharya, Faculty of SOA National
Institute of Law (SNIL) work is towards the partial fulfilment of the
university examination. I have undergone research various kind of
magazines and new paper and online websites. I further declare that
this report is based on the original study undertaken by me and has not
been submitted for the award of any degree/diploma from any other
university/institution.

NAME:- Prabhjot Kaur Chalotra

CLASS:-1 St Semester LLB(H)
DATE:

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 ACKNOWLEDGEMENT
I express my sincere gratitude to Ms. Ipsita Acharya, whose guidance and
support were invaluable throughout the duration of this project. I am also
thankful to SOA National Institute of Law (SNIL) for providing me with the
necessary resources and environment conducive to research. Furthermore, I
extend my appreciation to all those who contributed their insights and expertise,
directly or indirectly, towards the completion of this project. Their assistance has
been instrumental in shaping this report.

NAME:- Prabhjot Kaur Chalotra

CLASS:-1 St Semester LLB(H)
DATE:

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 INTRODUCTION

Alimony and maintenance laws in India are an integral aspect of matrimonial law,
designed to provide financial support to a spouse following separation or divorce.
These laws reflect the principles of equity and justice, aiming to ensure that a
spouse, who is financially dependent during or after the marriage, is not left
destitute. Given the complexities of marital relationships and societal shifts in
gender roles, alimony and maintenance laws have evolved significantly over the
years. This article provides an understanding of the legal frameworks, judicial
precedents, and practical considerations governing alimony and maintenance in
India.

In simple words, maintenance is an amount which is given in the form of financial

assistance to either of the party.
All the provisions of Hindu law shall apply to Hindus including Sikh, Jains and
Buddhists as defined in Section 2 of Hindu Marriage Act, 1955. According to
Section 3 (b)1 , “Maintenance” includes (i) in all cases, provision for food, clothing,
residence, education and medical attendance and treatment; (ii) in the case of an
unmarried daughter, also the reasonable expenses of an incident to her marriage.

The basic motive of providing the maintenance is to maintain an equitable

standard of living of the spouse or any other dependent personality as it was
before the separation.

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Legal Framework for Alimony and Maintenance in India

Alimony and maintenance laws in India are governed by various personal laws
that apply to different religions. The laws vary depending on the religion of the
parties involved, with specific statutory provisions applicable to Hindus, Muslims,
Christians, and Parsis.
· Hindu Law (Hindu Marriage Act, 1955 & Hindu Adoption and
Maintenance Act, 1956): Under Section 24 of the Hindu Marriage Act,
1955, either spouse may seek pendente lite (temporary) maintenance and
expenses of proceedings during the pendency of matrimonial litigation.
Furthermore, Section 25 empowers the court to award permanent alimony
to either spouse. The amount is determined based on the income and
property of both parties, assets and liabilities of both parties and other
relevant circumstances. The Hindu Adoption and Maintenance Act, 1956,
provides a broader framework for maintenance, extending it to dependents
and covering various grounds such as marriage, old age, and disability.
Under Section 18, a Hindu wife is entitled to be maintained by her husband
during her lifetime unless she is unchaste or converts to another religion.
· Muslim Law (Muslim Women (Protection of Rights on Divorce) Act,
1986): The law governing maintenance for Muslim women was significantly
shaped by the Shah Bano case and the subsequent enactment of the
Muslim Women (Protection of Rights on Divorce) Act, 1986. Under this Act,
a divorced Muslim woman is entitled to a reasonable and fair provision and
maintenance from her former husband, which is to be provided within the
iddat period. Additionally, the Act ensures that if the woman is unable to
maintain herself after the iddat period, she can claim maintenance from her
relatives or the Waqf board.

· Christian Law (Indian Divorce Act, 1869): Under the Indian Divorce
Act, 1869, maintenance may be granted to a wife upon divorce. Section 37
allows the court to order a reasonable provision for the maintenance of the
wife. The quantum of maintenance is decided after considering the
husband’s ability to pay, the wife’s needs, and her conduct.

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 · Parsi Law (Parsi Marriage and Divorce Act, 1936): The Parsi
Marriage and Divorce Act, 1936, provides for maintenance and
alimony in cases of divorce. Under Section 39, the court can grant
alimony to the wife while the matrimonial suit is pending and also
make provisions for permanent alimony upon divorce. The maintenance
amount is determined based on the husband’s wealth and the wife’s
necessities.

· Secular Law (Section 125 of the Criminal Procedure Code,

1973): Section 125 of the Criminal Procedure Code, 1973, provides a
secular provision for maintenance, allowing a wife (or husband in rare
cases), children, and parents to claim maintenance irrespective of their
religion. A spouse unable to maintain themselves can file an application for
maintenance under this provision. Section 125 is a critical provision because
it applies uniformly to all citizens of India, irrespective of personal laws.

The provision aims to prevent vagrancy and destitution, and maintenance can be
claimed without the need for a divorce. The amount is determined based on the
financial capacity of the husband and the needs of the claimant. The courts have a
wide discretion in determining the quantum of maintenance.

(i) Maintenance of Wife: Under S.24 of Hindu Marriage Act, 1955 (herein after
mentioned as HM Act), either the wife or husband can apply for interim
maintenance. The basis of the claim for interim maintenance is that the claimant
has no independent income of his/her own to support himself/herself. The
provision is silent on the quantum of maintenance and it is upon the discretion of
the court to determine the quantum. Similarly, maintenance pendente lite is to be
provided to the claimant who does not have an independent income and the
financial need of litigation expenses has to be provided by the other spouse.

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The interim maintenance is payable from the date of presentation of the petition
till the date of dismissal of the suit or passing of the decree. Interim maintenance
is supposed to meet the immediate needs of the petitioner. And maintenance
pendente lite is for providing the litigation expenses to the claimant.
S. 3(b)(i) of Hindu Adoption and Maintenance Act, 1956(herein after mentioned
as HAM ACT Act) defines maintenance as "provision for food, clothing, residence,
education, and medical attendance and treatment." In the case of unmarried
daughter, it also includes her marriage expenses. The provisions for permanent
maintenance are present in all the personal laws and are substantively similar.
However there are some differences between the personal laws.
Grounds for award of maintenance: Only upon proving that at least one of the
grounds mentioned under the Act, exists in the favour of the wife, maintenance is
granted. These grounds are as follows:-
a. The husband has deserted her or has willfully neglected her;
b. The husband has treated her with cruelty;
c. The husband is suffering from virulent form of leprosy/venereal diseases or any
other infectious disease;
d. The husband has any other wife living;
e. The husband keeps the concubine in the same house as the wife resides or he
habitually resides with the concubine elsewhere;
f. The husband has ceased to a Hindu by conversion to any other religion; g. Any
other cause justifying her separate living;

Quantum of Maintenance: The means and capacity of a person against whom

the award has to be made should be taken into consideration for determining the
quantum of maintenance. In fact, in case of the husband, it is not only the actual
earning, but also his potential earning capacity, which must be considered i.e.
there is a presumption that every able-bodied person has a capacity to earn and
maintain his wife. The income of the husband is a significant factor to be
considered by the court in fixing the quantum of maintenance. It is disposable
income and not the gross income, which is to be considered. Section 23(2) of
HAM ACT states the factors to be considered in determining the amount of
maintenance payable to the wife, children and aged parents, and they are as

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follows – the position of and status of the parties, the reasonable wants of the
claimant, the claimant if living separately is justified or not, the income of the
claimant and the value of the claimant’s property and the number of persons
entitled to maintenance under the Act.
Even if one of these grounds exists in favour of the wife, she will not be entitled
to relief if she has indulged in adulterous relationship or has converted herself into
any other religion thereby ceasing to be a Hindu. It is also important to note here
that in order to be entitled for the relief, the marriage must be a valid marriage. In
other words, if the marriage is illegal then the matrimonial relationship between
the husband and wife is non-existent and therefore no right of maintenance
accrues to wife. However, thanks to judicial activism, in particular cases the
presumption of marriage is given more weight age and the bars to maintenance
are removed.

(ii) Maintenance of Children: Section 20 of HAM ACT imposes an obligation

upon the parents –mother and father, both equally to maintain the children –
both legitimate and illegitimate. This is a unique feature of the Hindu law where
both the parents are equally responsible to maintain the children. S.20(2) of HAM
ACT lays down that the children are entitled to maintenance during their minority.
This right of maintenance for the daughter is extended till she gets married. The
parents are obliged to bear her marriage expenses. However even after marriage
a minor married daughter, if she is unable to maintain herself then she can claim
for maintenance under S.125 CrPC. When an application has been filed under
section s24 and 25 of HM ACT, the children are also entitled to get maintenance if
the claimant has the responsibility of maintaining them i.e. the claimant’s right to
maintenance also includes the right of maintenance of the children. Section 26 of
HM ACT also provides that in any proceeding under the Act the court can from
time to time pass interim orders and make provisions in respect of the custody,
maintenance and education of the minor children.

(iii) Maintenance of Parents: S. 20 of HAM ACT also lays down an obligation of

maintenance o f old and infirm parents who are not able to maintain themselves
out of their own personal earnings and property. The HAM ACT is the first statue
in India, which imposes an obligation on the children to maintain their
parents. The obligation to maintain is not only limited to the sons but it also

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extends to the daughters. Under HAM ACT, both the mother and the father have
an equal right to claim maintenance. The explanation to this section also includes
stepmother in the term parent. However it is important to note that the section
imposes an obligation to maintain only those parents, who are unable to maintain
themselves and therefore the obligation to maintain the parents other than those
infirm and unable, is only moral.

Types of Alimony and Maintenance

Alimony and maintenance can be broadly categorized into three types:

· Interim Maintenance (Pendente Lite): This is a temporary financial

support provided to the spouse during the pendency of divorce or
separation proceedings. The objective is to ensure that the financially
dependent spouse has sufficient means to sustain themselves during the
litigation process. It also covers litigation expenses and expenses towards
maintaining minor children, if any.

· Permanent Alimony: Once the court pronounces a decree of divorce,

permanent alimony may be granted to the financially weaker spouse. This is
a one-time financial settlement or a regular payment that is meant to
provide long-term financial support. Permanent alimony is generally
awarded after considering factors such as the duration of the marriage, the
income and assets of both parties, and their future needs.

· Maintenance During Judicial Separation : In some cases, even when

divorce is not sought, a spouse may claim maintenance during a period of
separation or judicial separation. This is particularly relevant in situations
where one spouse leaves the marital home but has not yet filed for divorce.

Key Factors in Determining Alimony and Maintenance

A recent landmark case where the Supreme Court of India made it mandatory to
consider assets and liabilities when determining the amount of maintenance
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is Rajnesh v. Neha & Anr., (2020) 12 SCC 324. In this case, the Supreme Court
established that both the husband and wife must file detailed affidavits disclosing
their income, assets, and liabilities at the very outset of the maintenance
proceedings. The court introduced a comprehensive format for such disclosure,
ensuring that the financial standing of both parties is clearly established. The
affidavits must include details of earnings, real estate, bank accounts,
investments, and debts. The Court further emphasized that maintenance
proceedings should be completed within a reasonable time, avoiding unnecessary
delays. It further directed that interim maintenance must be awarded at the
earliest stage of the proceedings.
When awarding alimony or maintenance, courts consider several factors to ensure
fairness and justice. Some of the key factors include:

· Income and Property of Both Parties: The most important factor in

determining alimony is the income and financial standing of both the
husband and the wife. Courts assess the husband’s ability to pay and the
wife’s financial dependence on him.

· Duration of the Marriage: The length of the marriage plays a crucial

role in deciding the quantum of alimony. Longer marriages often result in
higher alimony, especially where the dependent spouse has sacrificed
career or educational opportunities.

· Age and Health of the Parties: The age and health conditions of both
spouses are taken into account. A spouse who is elderly or suffering from
health issues may receive higher maintenance due to the increased cost of
living.

· Standard of Living During the Marriage: Courts often strive to ensure

that the dependent spouse can maintain a similar standard of living post-
divorce to what they were accustomed to during the marriage.

· Conduct of the Parties: The conduct of both parties, especially in cases

of cruelty, infidelity, or abandonment, can impact the alimony awarded. A
party guilty of cruelty or desertion may be awarded lower alimony.

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 · Contribution to the Household: A spouse’s contribution to the
household, whether monetary or otherwise, such as taking care of children
or managing the household, is also considered when awarding alimony.

· Judicial Precedents and Recent Trends: Indian courts have delivered

several landmark judgments in the realm of alimony and maintenance,
which have contributed to the evolving nature of the law.

· The Vinny Parmar Case

In Vinny Parmar v. Paramvir Parmar (2011), the Supreme Court expanded the
scope of maintenance by holding that maintenance should be granted to a wife to
maintain the same standard of living that she enjoyed during the marriage .

· Recent Trends in Gender Neutrality

Recent judicial decisions have begun to acknowledge the possibility of awarding
alimony to men in cases where the wife is in a better financial position. This shift
reflects an evolving understanding of gender roles in modern Indian society.

· Tax Implications of Alimony

In India, the tax implications of alimony depend on the nature of the payment:
Periodic payments of alimony (such as monthly payments) are treated as income
for the recipient and are taxable under the Income Tax Act. The payer, however,
does not get a tax deduction.
Lump sum alimony, on the other hand, is considered a capital receipt for the
recipient and is not taxable

What is Alimony?
Alimony is a monetary compensation granted to the spouse, who is unable to
support himself/herself, by the other spouse during or after the divorce
proceedings. The right to receive alimony depends upon the earning capacity of
the person who is economically dependent on the marriage. The recipient can be
a spouse, dependent children, and even poor parents. It can simply be termed as
financial support.
Alimony is mainly categorized into the following two types:
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 · The maintenance amount is given during the court proceedings.
· Amount is given at the time of legal separation.

How is Alimony Calculated in India?

Now, answering the question that “How much alimony does a wife get in India?” ,
the Supreme Court in one of its landmark judgments has set a benchmark for
maintenance to be paid by a husband to his estranged wife, stating that 25% of
the net salary of the husband might constitute a “ just and proper” amount as
alimony. This is suitable for monthly alimony paid by the husband to wife. No such
benchmark has been given for a one-time lump sum amount, but usually, this
ranges from 1/5th to 1/3rd of the spouse's net worth. However, a hard and fast
rule to calculate alimony has not been defined under any Indian law, nor is it
possible as it depends on the facts and circumstances of each case.
In India, alimony is governed as per the personal laws of the individual getting a
divorce as well as under the provisions of the Special Marriage Act. A tour of how
alimony is calculated under various Indian personal laws is given below.
Alimony in India can be calculated based upon the following factors:
1. Monthly Incomes of Spouses (Without Tax): These earnings are carefully
examined by the court to determine each spouse's financial capabilities and
their individual needs for financial assistance.
2. Educational Backgrounds and Possibility of Paying Jobs: When assessing
spouses, their educational backgrounds are carefully reviewed, considering
their qualifications and job prospects. If one spouse has a higher education
and better job opportunities, they may be expected to contribute more to
their financial well-being.
3. Number of Years of Marriage: The length of the marriage significantly
impacts alimony considerations. Longer marriages may lead to more
substantial or permanent alimony awards, while shorter unions might entail
different considerations.

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4. Number of Children and Child Custody: While considering alimony assessing
the financial requirements of the children is crucial. The custodial
arrangement (who has custody of the children) can also affect the alimony
amount. The custodial parent might be granted more alimony to ensure the
children's welfare.
5. Husband's Income and Status: Assessing husband's income, job, assets, and
lifestyle helps ensure that the alimony amount is fair and allows the
receiving spouse to maintain a decent living standard.
6. Liabilities of the Husband: When assessing alimony, considering the
husband's financial responsibilities like loans, EMIs, and dependent family
members are also important. These factors help determine his ability to
pay.
7. Reasonable Needs of the Wife: The court also takes the needs of the wife
into consideration and such which go beyond just the basics. This includes
considering whether she has children living with her and what their needs
are. The court also looks at her qualifications and ability to earn money to
see if she can support herself financially.
8. Wife Living Separately Without Sufficient Cause: If a wife is living apart from
her husband without a valid reason, she may not qualify for maintenance.
In the 2019 case of Smt. Teja Bai v. Chiddu Armo in Jabalpur, the High Court
ruled that Smt. Teja Bai left her marital home with her child on the grounds
of her husband's illness. This however was found to be an insufficient
reason to justify living separately from her husband and denied her claim
for maintenance.
9. Professionally Qualified Wife and Capability to Earn: In some cases, a highly
educated wife who can work may not get long-term financial support. This
happened in the Smt. Mamta Jaiswal v. Rajesh Jaiswal case. Even though
Mamta had impressive degrees like an MSc, M.C., and [Link], she wasn't
employed when they divorced. At first, she received temporary alimony of
Rs. 800/- during the divorce process. But later, the court told her to find a
job and said that the maintenance money would only be given for one year.

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How to Calculate your Probable Alimony / Maintenance
You can calculate how much maintenance is to be given to the wife in India by
using the following formula. However, this is not a sure shot and an accurate
method.
1. For monthly payout: You can calculate it as per the monthly salary of the
spouse or your salary, depending upon the scenario. Now, calculate 20%
and 25% of this amount. The monthly payout sum maybe somewhere
between this range.
2. Lump-Sum Alimony: For lump-sum alimony, begin by obtaining your
spouse's gross earnings or your salary, as applicable. Then, calculate 1/3rd
and 1/5th of this gross earnings amount. For instance, if the gross earnings
are 100X, the lump sum amount for maintenance may fall within the range
of 33X to 20X.

How Is Alimony Paid?

Alimony is often granted to the spouse who earns more to assist the one with a
lower income. This financial help can come in the form of a one-time payment or
regular payments over an agreed-upon period. The determination of alimony
amounts also hinges on factors such as:

Temporary alimony: Also known as "Pendente Lite" alimony, it is financial support

provided to the lower-earning spouse throughout the divorce process. Its purpose
is to assist them in upholding their accustomed lifestyle during the divorce
proceedings.
Rehabilitative alimony: This type of alimony is given to a spouse with a lower
income to help them become financially independent through education or
training.
Permanent alimony: This alimony is provided in long-term marriages when one
spouse has not worked for a significant period.
Reimbursement alimony: This type of alimony is given to one partner for financial
assistance in helping the other achieve education or career goals during the
marriage.

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Lump-sum alimony: This type of alimony is given as a one-time lump sum
payment and not periodically.

In what circumstances will the wife be asked to pay maintenance to

the husband?
Divorce and separation maintenance can get complicated. While people often
assume it's husbands supporting wives, the law recognizes it's not just about
gender. Sometimes, wives might need to support husbands, depending on various
factors and legal considerations. If the husband cannot support himself financially
during the ongoing legal proceedings under the Hindu Marriage Act, 1955, a court
may order the spouse to provide him with Rs. 20,000 per month.

So, it is crucial to remember that decisions on alimony depend on the unique

circumstances of each case and the grounds involved.

Types of Alimony
There can be 2 types of Maintenance or Alimony as per when they are paid. These
are:
1. The interim maintenance amount is provided pendente lite i.e. during court
proceedings.
2. The final amount is paid at the time of legal separation. This is usually a
lump sum amount.

When can an Application for Alimony get Rejected?

If the husband's inability to maintain himself is proven, the alimony application
may be denied. Similarly, vague statements regarding the other party's income
could lead to rejection. Additionally, if it's evident that the party seeking alimony
has sufficient means to support themselves or holds a high-paying job, the

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application might be dismissed. Lack of proof regarding either spouse's income
could also result in application rejection.

Taxability of Alimony
The Income Tax Act does not explicitly deal with the taxability of alimony, but
previous court rulings offer insight. Lump sum alimony payments are deemed
capital receipts exempt from taxation under the IT Act. However, recurring
alimony payments are treated as revenue receipts, constituting taxable income for
the recipient.

Cases where Hindu wives don't qualify for alimony Under the Hindu
Adoption and Maintenance Act:
If a Hindu wife acts unchaste or changes her religion, she will not receive separate
housing or financial support from her husband. However, things does not remain
same when a wife lives alone and raises her children without any help from her
husband, as in the case of Meera Nireshwalia v. Sukumar Nireshwalia, AIR 1994
Mad 168, the court recognized this situation and approved separate housing and
financial support for the wife. It was held that a wife can ask for support from her
husband even if she does not meet all the conditions in section 18(2) clauses (a)
to (f). If she cannot prove all her reasons, she can still get help.

Supreme Court sets alimony benchmark: 25% of ex-husband's net

salary
In the case of Kalyan Dey Chowdhury vs. Rita Dey Chowdhury, the Supreme Court
established a fresh precedent for alimony arrangements in divorce proceedings,
now obligating the husband to allocate 25% of his after-tax income to his former
spouse as alimony.

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Conclusion
Alimony and maintenance laws in India are designed to balance the financial and
emotional needs of both parties in a marriage. Although there are variations in
the law depending on religious and personal considerations, the overall objective
is to provide a fair and just resolution in cases of marital breakdown. Courts have
considerable discretion in determining the quantum of alimony, ensuring that the
financially weaker spouse is not left disadvantaged.
As society evolves, there is a growing recognition of the need for gender-neutral
provisions and more equitable outcomes. It is crucial for parties involved in
matrimonial disputes to understand their rights and obligations under these laws,
as well as to seek legal advice tailored to their specific circumstances.

By virtue of judicial pronouncements and other steps, rights of women has been
restored but it will become fruitful only when under lying thinking are changed,
the women should emancipate themselves educationally, economically and
socially for their well being only and then they can understand their rights and
worth and thereafter the social upliftment of the whole community is possible.
We should always remember that mother is the first teacher and mentor of his
child. It is a historical fact that no society ever lived in peace until their women
folk are at peace.

Although Maintenance should be gender neutral and should be applicable both

for husband and wife respectively for the greater perspective of the society but
still many women are being denied to claim their rights of maintenance. Proper
implementation is necessary to abide by the Law of the Land and ultimately to

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make it a grand success.

Bibliography

1. Dr. Paras Diwan, “Modern Hindu Law”, 20th edition (Allahabad Law Agency)
2. Charles Hamilton, “The Hedaya, or Guide: A Commentary on the Muslim Law”,
2nd Edition (London 1870)
3. Syed Khalid Rashid’s Muslim Law, 5th edition
4. Baillie’s Digest, Calcutta ,1805
5. “Polygamy, Unilateral Divorce and Mehr in Muslim Law as interpreted in India”,
in Tahir Mahmood (ED.), Islamic Law in modern India, ILI, 1972
6. A.A.A. Fyzee, “Outlines of Mohammedan Law”, (3rd edition, 1964)
7. D.F. Mulla, “Principles of Mohammedan Law”, 18th edition(Mumbai, 1977)

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