WHAT IS MAINTENANCE?

Maintenance, also known as alimony or sustenance, is the financial support one spouse provides to the other after a divorce. The purpose of maintenance is to ensure that the financially weaker spouse can maintain a standard of living similar to that enjoyed during the marriage. In India, maintenance can be awarded to either the husband or the wife, although it is more commonly granted to the wife.

TYPES OF MAINTENANCE IN INDIA

• Interim Maintenance: This is the temporary financial support provided during the divorce proceedings until a final settlement is reached.
• Permanent Maintenance: This is the final financial support granted after the divorce. It can be provided as a lump-sum payment or as periodic payments, such as monthly or quarterly.

WHO IS ELIGIBLE FOR MAINTENANCE?

Under Section 25 of the Hindu Marriage Act, either spouse can claim maintenance. Factors that determine eligibility include:

• Financial Status: If one spouse is financially dependent on the other, they are eligible for maintenance. Even if the wife is employed, if there is a significant disparity between her income and her husband’s, she may still be entitled to maintenance.
• Health and Age: The court considers the age and health of both parties. If the dependent spouse is elderly or in poor health, this may increase the maintenance amount.
• Marital Conduct: The conduct of both spouses during the marriage may also influence the maintenance decision.

HOW IS MAINTENANCE CALCULATED?

There is no one-size-fits-all formula for calculating maintenance in divorce cases. Each case is unique, and the court takes various factors into account:

1. Income of Both Spouses: The court examines the net income of both parties. For the husband, deductions such as income tax, EMIs, and other liabilities are considered to determine his net income.
2. Social Status and Lifestyle: The lifestyle that both parties enjoy during the marriage is a critical factor. The goal is to ensure that the financially weaker spouse can continue living in a similar manner post-divorce.
3. Duration of the Marriage: The length of the marriage also plays a role. Longer marriages often result in higher maintenance amounts.
4. Dependent Children: If children are involved, the court considers the cost of their upbringing and education when calculating maintenance.

BENCHMARK FOR MAINTENANCE AMOUNT

While there is no strict rule for determining maintenance, the Supreme Court of India has suggested that in cases where maintenance is paid monthly, 25% of the husband’s net salary can be a fair amount for the wife. However, for lump-sum payments, the amount typically ranges from one-fifth to one-third of the husband’s net worth.

Special Considerations

• Working Wife: If the wife is working, her salary is taken into account, but she may still receive maintenance if there is a significant difference in income between her and her husband.
• Disabled Husband: In cases where the husband is unable to work due to a disability, and the wife is financially stable, the court may award maintenance to the husband.
• Change in Circumstances: If there is a significant change in circumstances, such as the wife remarrying or the husband’s financial situation worsening, the maintenance order can be modified.

EVIDENCE REQUIRED FOR MAINTENANCE CLAIMS

To successfully claim maintenance, the dependent spouse needs to provide evidence of their financial situation and the earning capacity of the other spouse. Important documents include:

• Monthly expenses and proof of income or lack thereof.
• The other spouse’s income tax returns and salary slips.
• Medical documents for dependents.
• Proof of children’s expenses, if applicable.

TAX IMPLICATIONS OF MAINTENANCE

• Periodic Payments: These are treated as income and taxed in the hands of the receiver. The payer does not receive any tax deductions.
• Lump-Sum Payments: These are considered capital receipts and are tax-free for the recipient.

CONCLUSION

Understanding how maintenance is calculated in divorce cases can help you navigate the complexities of the process. Since each case is unique, it’s essential to consult a legal professional who can guide you based on your specific circumstances. Whether you’re seeking maintenance or preparing to provide it, knowing the factors that influence the court’s decision can empower you to protect your rights and interests.

Substituted Service

It is seen that sometimes married couple drift apart without even divorce, it happens mostly in young marriages or when the marriage is the only option in a particular situation. Until one of the spouses think to marry again and realize some paperwork needs to be done, none of them bothers where the other partner is. In India, only an unmarried person can marry so in such case also to get married again you have to be unmarried again otherwise you shall be charged bigamy. If you do not have information about the existence of your partner and can’t file a divorce petition against him/her then you can get divorce through a special procedure known as substituted service.

Process

Substituted service is granted in a case where one of the spouses’ whereabouts is not known. In such cases, an application is written to the court asking for the substituted service, generally before the divorce petition is issued. The plaintiff must submit an affidavit in a court of law showing that several attempts have been made to locate the other spouse and measures taken learn about their whereabouts but no clue found. The only method left of serving the petition was substituted service but also, before applying for substituted service you must have to at least:

• Find out the missing spouse’s last known address (court will ask you how, when and from whom you get it).
• Search at that address about the whereabouts of your spouse and ask from people living there or neighbors.
• Contact every relative, friends, past employees and other people you think might be having his/her information because in the court, you need to submit a summary of your efforts made to find your spouse, attached with the affidavit. Mentioning the dates, names, and output of your efforts.
• Try to find him online on social media sites tracing his last activation on a particular social media site.
• Contact a tracing agent, and try your best level to find him/her out.

All of these efforts will be made to show the court that you couldn’t serve the petition to your partner in person and thus, you have applied for substituted service. In a proper case, the court will verify all of your efforts and then, itself try finding out your spouse at first through the newspaper publications, online, e-mail, etc. The method of searching by court will depend upon the facts of the case. The court will also decide the period of time under which the intention to defend will be served.
After the court search and verification is over and your efforts are proven then the court can give orders for the dissolution of your marriage, which will be followed up by the division of property, assets and debts, child custody, etc.

Separation in simple words means two people living apart. In some cases, couple lives apart from each other but either of them doesn’t approach for the divorce, it might be for those couples who see the spark of compromising  and apologizing from each other for whatever happened in past and see the hope of coming back together after giving some separate space to each other for a while. But when the two people are no more able to tolerate each other and stay together then they have the proposal of divorce. But before they appeal for the divorce from the family court they must fulfill the minimum separation period for divorce in India.

Let us tell you, it may possibly take the minimum of three hearings or 6 months to 1 year (in Mutual Consent Divorce) which can also last up to 2-10 years or more, depending upon the case to case.

Divorce with Mutual Consent

In this, both the husband and the wife agrees to all the terms and conditions of the divorce and mutually decides to dissolve their marriage and they file a joint petition in the court. Before this they should have lived up to at least 6 months separately, then only the court will listen to their divorce appeal. After this, court gives them the date of hearing of after six months and it is compulsory for both the parties to get present in the court on the given date otherwise in the absence of either of them the petition will get cancelled. After these terms and conditions the couple still agrees to get divorce then the court passes the decree of divorce.

Contesting a Divorce Case

This can get you the worst phase as it is based on proving unnecessary evidences and facts. The court may give you date after date which can also get postponed. Basically, it is based on the factors of charges on each other, demand of alimony, proof, etc.

Fast Track Court

If you’re fighting for your case for more than 2 years then you may transfer it to the fast track court. This can affect your pocket a little bit but the final judgment will come in 6 months. Fast Track courts were established in the year 2000 in India to eliminate the factor of long pending cases in the courts.

Indian Alimony Act outlines the aspects that the Family Court Judge is supposed to use in deciding if a Wife or Husband meets all requirements for Alimony payment from the other partner.

By and large, Alimony is granted for a particular timeframe, in increments which are generally weekly or monthly. Support could be granted because of a Divorce Settlement. In the event that a party demands alimony or is unwilling to waive alimony off and the parties can’t consent to divorce settlement alimony, at that point support might be granted at the divorce trial.

Spousal Support is generally granted on a temporary basis yet can be granted on an indefinite and (maybe what ends up being permanent) basis if the actualities legitimize indefinite Spousal Support.

Indefinite Spousal Support might be asked for a situation where a party is genuinely handicapped or because of old age can’t work. Indefinite support could likewise be granted in a plenty of various provable conditions.

The Court has to look at the age, health, occupation, the source of income and amount, employability and vocational skills of the parties while making an alimony determination.

Capacity to pay is a significant factor in deciding the amount of divorce settlement and regardless of whether support should be granted. There are numerous cases in which a spouse is in urgent need of divorce settlement alimony yet the other companion does not have the capacity to pay adequate support. In a few cases, the spouse does not have a capacity to pay as a result of a child support responsibility.

The following are the conditions in terms of which divorce settlement is granted by the court:

• The best contender for alimony is the partner who set aside her or his career for several years to take care of the family and the kids. Due to this, the responsibility of fostering the kids and maintaining the housework was on this partner, which allowed the other partner to move forward with her or his career. Hence, he or she has enough money to compensate for the alimony.
• Another kind of spouse who is a great contender for alimony is someone who is momentarily or eternally disabled particularly if it has been a long marriage.
• Another excellent contender for alimony is someone who has terribly disabled kids which doesn’t allow the person to find employment.
• Alimony isn’t granted to the spouse already married to another person. In spite of the fact that the compensation of alimony can be changed on such events considering the disputes for ensuring the backing.
• Only under certain convincing conditions, the court goes on to change the formally encircled help. From time to time the court may even hand over the weight of paying for the support to an open body.
• In the occurrence of a contested divorce, spouses fail to comprehend the idea of divorce settlement or how much amount ought to be paid. In such conditions, the court takes up the undertaking of settling on the amount of alimony to be paid.

It must be considered by the family court judges while announcing the decree that men too are sometimes in an unfavorable situation during the time of divorce. So, they must award the alimony support to the husbands as well because the law is certainly gender neutral.

Once you have determined to take divorce, you need to consider finance related matters as it holds importance in divorce case. Besides, there are some things that should be avoided in the course of taking divorce. Here are some for your reference:

Do Not Make Haste Decisions

Divorce completely changes the situations of your life, especially when you have kids. Therefore, do not make haste decisions. At first, meet an experienced divorce lawyer; discuss your issues with him. He will guide on not only critical matters pertaining to your case but also on financial matters. Divorce papers not sign on divorce papers at an instant, rather, give it a thought, and understand the consequences and possibilities from your attorney.

Make Your Own Decisions

Your lawyer is to guide you, not to rule over your decisions. Therefore, make your own decisions.

Be Clear

Make sure you do not hide anything from your lawyer and take wise decisions at every step. Your lawyer can help you only when you will be transparent to him and tell him each aspect related to your case.

Therefore, once you have made up your mind for taking divorce from your partner, consult a divorce lawyer first and then proceed accordingly.

Why You Should Consult a Divorce Lawyer?

The legal system is complex and difficult to navigate; therefore trying to be your own legal representative can be a bad decision.

If you are going through a divorce, there is practically zero chance that you will get a fair result in a divorce court if you do not have a professional legal representation.

With the divorce rate going high in India, it’s always wise to keep a lawyer in mind and you must get a divorce lawyer the minute you sense a problem in your marriage.

There are things that take place in a divorce trial that could change your life in so many ways–especially mentally and financially. You want a divorce attorney who is experienced enough to take your case and A legal representative who has studied and practiced divorce law will know all the intricacies of the Indian judicial system.

Here are 4 Reasons That You Should Hire a Professional Divorce Lawyer

So that he can help you handle the process in the most effective way possible.

Legal Expertise

Divorces can get messy, so having a professional by your side during this especially hard time in your life will provide you a sense of safety, security, and confidence. They know the in-&-outs of the courts and the expected result for each type of divorce case.

Less Hassle

Divorces are one of the most traumatic times in a person’s life and it becomes even more complicated when children are involved. Having a divorce attorney alongside yourself will allow you to take care of the other important things in your life that require your complete attention. The legal representative will handle the intricacies for you and the complex court trials.

Save Yourself From The Mess Of Documents

Any legal proceeding essentially involves a high amount of paperwork that is impossible to understand for most people. Lawyers are trained to reason through this paperwork and see the minute details that someone naive with these situations would possibly fail to notice. By hiring a divorce lawyer, you will save yourself from drowning in the ocean of bureaucratic court files.

Expedite The Process

The only thing worse than a divorce is a divorce that drags for an eternity. You will want the case to be resolved as fast and hassle-free as humanly possible. Having an attorney will make sure that you do not do things that can drag the process. If kids are involved, you will want the process to finish as early as possible, so that they don’t have to go through all that comes along with a divorce.

Therefore, once you have decided to get a divorce from your spouse, the best thing you can do is consult a divorce lawyer first and then go ahead accordingly.

However, remember that your lawyer is just there to guide you, not to take decisions for you. Never hide anything from your lawyer; it will be beneficial for you at every step. Your lawyer can do the best when you tell him each aspect associated with your divorce case.

Sikh marriage ceremonies are commonly known as ‘Anand Karaj’ which means “blissful event”. However, Sikh community has established the fact that the people of their community face major problems abroad since their marriage certificates are issued under the Hindu Marriage Act. They face issues abroad because they identify themselves as Sikhs but their marriages are registered under the Hindu Marriage Act.

The Anand Marriage Amendment Bill 2012

The revisions made in the Anand Marriage Act (1909) were inadequate and does not completely resolve the identity crisis that Sikhs face. The Anand Marriage Amendment Bill 2012 has been passed by the parliament of India. However, the absence of the provision for divorce in the amended Bill has sparked a huge debate in the Sikh community, with some section of people against it and others supporting it.

While one school of thought believes there is no place for divorce in the Sikh “Rehat Maryada” and hence the marriage Bill should not have any provision for divorce in it, the other section feels that the Anand marriage Act must have divorce provision so that Sikhs don’t have to rely on the Hindu Marriage Act again to get a divorce.

Sikh Ideology Does Not Support Divorce

Although Sikh ideology does not support divorce, but harsh truth is that just like other communities, divorce is a social reality for Sikhs as well. The act should have the provision for legal separation. Due to the absence of divorce provision, Sikhs have to fall back on the Hindu Marriage Act for annulling their marriages.

The fastest way of getting a divorce in India is by mutual consent. The married couple has to file a petition seeking divorce in the Court, on the grounds that both the wife and the husband have been living separately for a time period of one year or more, thus failing to take care of their marital duties and wanting to dissolve their marriage.

You can also read these blogs for more information:

• How to Get A Divorce Under Anand Marriage Act in India?
• Lt. Governor Approves to Notify Anand Marriage Act for Sikh Community
• How to Get Mutual Consent Divorce in India?

How Long The Couple Will Have To wait for Divorce?

6 to 15 month of time is given to the married couple for reconciliation and reconsidering their decision for seeking a divorce. However, if they are not able to reconcile and divorce petition is not withdrawn during this time period, the parties have to present themselves again to the court for making a second motion confirming the mutual consent filed earlier. The Court after having heard both the parties would grant a verdict of divorce.

In case either of the spouses is not ready for the mutual divorce, then one can file a petition under any of the grounds mentioned under Section 13(1) of the Hindu Marriage Act. Divorce petition has to be filed in the district court of the city where both the partners lived together for the last time, which was their matrimonial home.

Spousal support can be temporary, for example when an ex-spouse requires time and money to brush up her/his skills, complete a degree or certification in order to get back into the job market. Or it could be permanent if an ex-spouse has no probability of becoming financially independent due to age or disability.

If you have been the main financial provider for your family during your married life, it is quite likely that you will have to pay divorce alimony. The techniques and ways for determining whether alimony is appropriate and/or how much alimony an ex-spouse is supposed to pay may vary from court to court.

Let’s Look at a Typical Instance :

The Husband and the Wife met while they were in college. Both graduated from different colleges with bachelor’s degrees in Engineering and bachelor’s degrees in Architecture respectively. Both of them started working immediately after graduation. They got married after completing graduation when the husband and wife both were 24 years old.

The wife stopped working when their first child was born and has been at home taking care of the kids since then. The husband is now 34 years old and earns a handsome salary, while the wife stays at home with their two kids.

Will The Husband Have to Pay Divorce Alimony?

In this case, will the husband have to pay divorce alimony? The simple answer to this question is yes. The Husband will probably have to pay alimony but how much alimony or for how long may vary depending on a number of factors.

The Court Will Usually Consider The Following Factors for Divorce Alimony :

• Marriage duration.
• Financial resources of each spouse.
• Each party’s earning capacity.
• Time needed to obtain training or education to re-enter the workforce.
• Contributions to the family during the marriage.

In today’s market scenario, it is extremely hard to find job, even if you stopped working only a few months ago. If the wife stopped going to office after marriage or after the birth of a kid, the husband has to support her until she is earning enough to support herself. The courts also consider the complexity in getting a job or freelance work while deciding the alimony.

In the scenario above, the wife has the ability earn well as she has a bachelor’s degree in Architecture and some work experience. However, she definitely does not have the same earning capacity as the husband, considering that the husband now has a work experience of many years and he already has a job with a company. The wife had to compromise on her career to take care of the family and kids. Therefore, the husband has to pay alimony until she is financially independent.

A court may order temporary alimony while the divorce is still pending. Most divorce alimony is awarded for a particular period of time.

So, if you have been the primary bread winner for your spouse and children and your spouse is not able to support himself/herself financially, it is mandatory for you to pay some kind of spousal support.

The standard of living of the marriage’ is basically how you lived while you were married and how much it cost to live that way. It will vary for each family. If you don’t earn at all, or if you earn much lesser than your spouse, you have to figure out how much money would you require per month to support the lifestyle you had while you were married. Whatever the amount is, you may be entitled to that much in divorce alimony.

There are four types of divorce alimony:

Permanent divorce alimony:

Like the name suggests, permanent alimony is supposed to continue for an indefinite period of time or at least until there’s some major change of situation.

Term divorce alimony:

Term alimony is supposed to be paid for a particular period of time. It usually applies to short duration marriages and where there is reasonable likelihood that the spouse getting the alimony will be financially self-sufficient to the point of being capable of maintaining the same standard of living while they were married.

Reimbursement divorce alimony:

This kind of alimony reimburses one spouse for the time and the money provided to the other spouse who acquired an important certification or degree, with the expectation of sharing the benefits of that degree once it is completed.

Rehabilitative divorce alimony:

Similar to the term alimony, rehabilitative alimony is paid for a certain period of time. The alimony amount and the duration depend on a particular plan for the spouse getting alimony to become financially independent.

When deciding whether divorce alimony is appropriate or the type of alimony, Judges consider the following factors:

• The genuineness of the need and ability of the parties to pay alimony.
• Duration of the marriage.
• The standard of living of the marriage and the possibility of both the spouse maintaining their previous lifestyle.
• The age and the health of the parties.
• The absence period from the job market of the party asking for alimony.
• The responsibilities and education for the children.
• The education, professional skills, employability and earning capacities of the parties.
• The record of each party’s non-financial and financial contribution to the marriage. It also includes the care, education of the kids and how it disrupted their personal career.
• The time and expenditure required to obtain adequate education or vocational training to facilitate the party seeking alimony to get a suitable job.
• The reasonable, unbiased and fair distribution of property.
• The earnings obtained through investments or assets by either party.
• The taxes and consequences of the alimony to both parties. It may include the designation of the entire alimony or a part of the alimony as a non-taxable payment.
• Any other aspect that the court deems appropriate.

If your spouse refuses to pay after court’s alimony order, you can consult your divorce lawyer and take an immediate legal action to implement the court’s order. Orders to pay monthly alimony is same as any other court order and it will ensure that you are getting regular payments. If required, a court may even jail a hesitant alimony payer to make him realize that it means business.

So, if you were the sole/main bread earner for your children and spouse and your spouse is unable to support himself/herself, you perhaps will have to pay some form of alimony/spousal support.

Under both circumstances the law enforces certain decrees such as

1. Child Custody,
2. Alimony (support of the spouse)
3. Visitation
4. Division of the property etc.

The matter will be handled and preceded by a divorce attorney and hence you will be guided with the pros and cons of Legal Separation and Divorce. After a period of time, if the couple eventually resolves for a divorce, they can proceed for the same while the provisions of legal separation will serve as basis of the divorce. The grounds of legal separation is same as that of a divorce such as

1. Adultery
2. Cruelty
3. Desertion
4. Insanity
5. Apostasy
6. Leprosy
7. Infectious Diseases etc

So, why Legal Separation and not Divorce when every aspect of the marriage is being split and discussed?

Judicially, a legally separated couple adheres to more benefits than a divorced couple. They are;

1. It acts as a decider. The couple will be legally married but living with enough space and time to reconsider; therefore it will be easier to revoke the separation if they choose to.
2. They are entitled to access joint accounts (if any), savings, credit accounts and other joint financial credits.
3. Couples will be eligible for government benefits of the each other such as social securities.
4. They may also enjoy tax benefits such as claiming tax deductions if one spouse continues to support the other.
5. Also, couples will still be eligible in getting covered in each other’s medical insurance policy.

The above benefits will be forfeited once a legal divorce proceeding is carried forward.

There are two categories of divorce in Muslim Law

1. Extra Judicial Divorce;

• Talaaq, Ila and Zihar (by Husband)
• Talaaq-i-tafweez, Lian (Wife)
• Khula and Mubarat (mutual agreement)

2. Judicial Divorce: Right of the wife as per to the Muslim Marriage Act 1939

1. Talaaq is widespread and the most primitive form of divorce in Islam. It is most powerful and the husband has all the rights to pronounce it unilaterally and without the consent of the court. Expressing Talaaq is also important according to the Shia Law (School of Sunnis). And Talaaq can also be revoked in accordance with the dictates of Mohammad Prophet and rules of Iddat.
2. Ila is when the husband declares not having a sexual relationship with his wife and if the claim is intact for 4 months, the marriage is dissolute irrevocably.

• Zihar is when the husband compares his wife to a blood relative (mother or sister) and thereafter does not cohabit with his wife for a period of 4 months. After the expiry of 4 months, Zihar is attained.

1. Khula is when the wife files divorce and after the consent from husband, the wife has to part a portion of her dowry or property as compensation.
2. Mubarat is completed when both desires for a healthy divorce.
3. If the husband makes aggressive charges of adultery against his wife, she is entitled to seek divorce according to Lian.

• Talaaq-i-tafweez is a practice where the husband delegates the power of pronouncing divorce to his wife unconditionally or for a period of time during the prenuptial agreement.

The above points highlights the categories of Muslim Divorce Concept and not portrays an in depth knowledge.