OPINION

Maintenance and Divorce Laws In India

January 30, 2007
Sumanth

Disclaimer: This article is not from an expert in Judicial matters. So, the author or Desicritics takes no responsibility whatsoever for any consequences arising out of following the procedures explained here.
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As I keep talking with many of my friends on the issue of divorce, child custody and alimony, I was shocked to find that most of them have absolutely no knowledge about the laws related to marriage and the court procedures. Many think divorce is just a cake walk and others think the woman gets 50% of the guy's salary or even property if the couple have a divorce.

In India, family courts can pass an interim order on maintenance to a spouse when s/he is separated from the other spouse with minor marital conflict, with a decree of judicial separation or if one of the spouses has applied for divorce. So, a lawsuit for divorce or judicial separation is not mandatory to apply for monthly maintenance.

Interim maintenance order remains valid till the permanent maintenance order is given by the court during the divorce.

The maintenance amount is calculated (approximately) by taking into account the total monthly take home income (ie. without tax) of both the spouses. The educational background of the spouses, the number of years of marriage, number of children and child custody are also major factors, which govern the maintenance amount. Maintenance amount can also depend on who well the lawsuit has been fought by the advocates of both parties. The spouse with lesser income or no income can get a maintenance amount, which will make his/her complete earnings (plus maintenance) to be equal to 20% to 30% of the above total monthly income.

For example, if the husband has a take home income of one lac per month and the wife has a take home income of twenty thousand and they have no children in a marriage of 2 years, then the wife can theoretically get Rs.4000 as maintenance. How? The total take home income is one lac and twenty thousand and twenty percent of it comes to Rs.24,000. So, the woman gets Rs.4000 per month, so that her total income (her income+maintenance) becomes Rs.24,000.

If the couple have a child and the woman has the child custody, then she may get a maintenance amount of Rs.10,000 to Rs.16,000 per month so that her total income becomes Rs.30,000 to Rs.36,000 per month. Apart from that there can also be a judicial order defining the details on how the expenses for high studies of the child are shared. If the child decides to stay with the father after the age of 5, then the maintenance amount to the woman gets reduced accordingly.

If a woman's income is at least half of her husband's income, then most often she may not get any maintenance.

Similarly in a marriage of six months, if the wife is not working, but she has a masters degree and the husband has a monthly take home income of rupees one lac, then she may get a maintenance amount between Rs.8,000 to Rs.12,000 per month. Why? Because the argument would be that she has the capability to work and support herself.

Sometimes, the wife is also ordered to pay maintenace to the husband when the husband has a very small or no income compared to his wife's income. In recent past, such orders are passed by high courts in Cuttack and Lucknow much to the annoyance of some feminists and media. But, laws have to be the same irrespective of gender. Is not it?

So, economically empowered women do not get maintenance or they may even have to pay maintenace to their husbands in case of divorce.

The maintance amount can get higher if its a long marriage. The parents can also claim maintenace from their grown up earning children. Even though, it is not clear, if they can claim maintenance from their earning daughters as today daughters have equal property inheritance rights.

It must be noted that neither the husband nor the wife can make claims on the property(residential or otherwise) of the other during divorce. So, some intelligent men make sure to get residential property registered only in their name, when they apply it through a bank loan. But, most other foolish men (being misguided by the builders) register the property in joint names, while its the man who pays fully for the bank EMIs. In case of marital conflict and divorce, the condition of such men becomes extremely miserable as they are already under a debt of rupees 20 lacs to 30 lacs and the wives make a claim on it apart from the maintenace they may get in the court. I know, some other men asking their working wives to pay for half of the property and loan so that the property can be registered in both names. These wives sometimes start complaining that he is asking dowry as they feel its only a man's duty to provide for the family and the common expenses.

A woman or man stops getting maintenance from his/her spouse once s/he gets remarried unless they have a child. So, often women ask for a one time out of court settlement (or alimony) in stead of divorce. The man may agree to it or he can decline to it saying that he would prefer to give monthly maintenace.

For young guys (say techies within age group of 25 to 30) in marital conflicts, the maintenance amount given to their non working wives can be between Rs.2000. to Rs.7,000 (if they earn a salary between Rs.18,000 to Rs.50,000) provided they have no children.

So, often lawyers advise the women to file false dowry cases, so that the woman can force the guy to pay up a huge settlement/alimony (out of the court) in stead of going for a monthly maintenance. A monthly maintenance of Rs.3000 is in no way comparable to an one time alimony of Rs.10 lacs. But, the guy becomes bankrupt in such a situation as he ends up not only losing all his savings, but also takes loan from family and friends. He not only pays the alimony, but also ends up spending time in jail with his family, loses reputation, may be even the job, pays bribes to the police to stop harassing his family and the huge legal expense for bails and fighting the multiple cases. There is no way he can think of marrying again as he simply has no money to pay for even the marriage expenses. Of course, the painful experience can also keep him miles away from the very word marriage. On the otherhand, the woman's dowry case is fought by the public prosecutor(ie. the lawyer from the State paided by the taxpayer's money).

Its is alleged by some that the lawyers of both sides may also profit from this kind of a settlement. Its not at all surprising, if a husband finds himself cornered by his own lawyer, who keeps on pestering to go for a settlement, pay alimony, marry another girl (immediately) and live happily ever after.

The child is an important factor in a marital conflict, especially when the child is below the age of five. Fathers have natural right to child visitation. But, women can often evade the instructions/law and deny child visitation rights to the fathers. I have seen such fathers being allowed to meet their children once in a week or two just for an hour in the family court complex in Bangalore as in the police keeps dragging chained criminals into the vehicles in the background.

Today, as fathers get sensitive towards their children, it can lead to misery in case of a marital conflict, as there are no shared parenting laws in India and the child visitation rights may not get strictly enforced. This can mean, men may not prefer to have a child for many years in a marriage, if they have doubts on whether the marriage will sustain. They can also think of furthering their professional career in stead of spending time on bringing up the child. If the wife wants to have a child, then it can further escalate the conflict into a vicious circle, finally leading to a situation where the woman starts accusing the guy as being impotent. In year 2002, Media (especially the ToI-Let Tabloid) picked up such situations and presented it as "a lot of male Software Engineers are impotent". God knows, why they are not with that story now-a-days and are in stead focusing on stories of casual sex in parking lots, bathrooms of IT and BPO companies.

Sumanth is specialist in Soft-Computing. He is also a researcher in the area of Cognitive Science, Complex Dynamical Systems, and computational sociology. He manages software projects for enterprise printers in an MNC firm. He blogs at SIF website.
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#1
Righta
URL
January 31, 2007
02:25 AM

The Spouse who walks out of a marriage without a reason, is not fit of maintenance.

#2
A.K.Rathor
URL
January 31, 2007
02:26 AM

Excellent article. Full of knowledge and an eye opener for specially Bachelors...

#3
A.K.Rathor
URL
January 31, 2007
02:28 AM

BTW, can a husband claim maintenance from earning wife? I hope its true ...

#4
Sumanth
URL
January 31, 2007
07:12 AM

A poor husband, who has got a millionaire wife can claim maintenance from his wife. There are 2 judgements from High court in UP and Orissa which rewarded maintenance to husband. In first case, the wife was earning Rs.13000 per month where as the husband had lost his job and was earning only Rs.1000 per month and he was unable to bear the ligiation expenses. The divorce petition was filed by the wife (may be because she did not like a husband who was unable to earn enough).

The maintence laws in India are gender equal.

Legally, the following is not true:

"The person who walks out of marriage is not fit for maintenance"

A woman can walk out of marriage (in a few days up to many years of marriage) and can claim maintenance.

Please note, in India, the courts normally do not ask the employer of the wife or husband to furnish the salary details. The courts also do not insist submission of Income Tax returns and bank statements in case of a divorce, maintenance litigation. This often complicates the divorce battle.

Sometimes, independent working women do not claim maintenance from a high salaried husband fearing that a maintenance decree can bolster the husband's case of child visitation or child custody.

Most women (with child/childen) try to ensure that the husband relinquished the rights (even visition rights) over the child/ren. But, many urban metrosexual Indian men want shared parenting and they show surprising amount of determination while fighting for child visitation or custody during holidays(Summer and winter vacations). This often surprises the patriarchal relatives of the husband and even the judges. The conventional patriarchal mindset is inclined towards the husband getting rid of the messy marriage as quickly as possible with a settlement disowning the child/ren and marry another good, homely nice girl and "settle" in life again.

Unfortunately, the metrosexual urban men are challenging the patriarchal mindsets. It is certain that in a couple of years time, metrosexual men may get shared parenting rights. I know situations, where the men quit their jobs to take care of their infant children.

The divorce and maintenance battle is like a game of chess and it can get very nasty. It has both psychological and legal dimensions to it.

#5
sandeep
February 1, 2007
12:46 AM

wonderful article !!

#6
nuts
URL
February 1, 2007
03:12 AM

Hello Sumanth,
Please suggest solution in the case that:

1 a couple was earlier living in mother's property and the wife forced husband to get separated and move to a rented flat.

2 Now, wife realizes she made mistake that the property might go to husbands siblings and now starts harassing husband to move back to mother's home. files false complaint in police that the in-laws are not allowing her entry to their house.

3 Now technically husband and his brother are living in separate houses. husband doesnot want to move back to mother's family. so can the wife claim residence again in the mother's house?

4 what complications can arise in case
a husband leaves wife to live somewhere else
b husband applies for divorce

#7
murali
URL
February 11, 2007
09:53 PM

I have been fighting my cases. My fighting in courts started 12 years back and since then we are living separately. I asked for divorce and I lost and now contesting again in HC. She asked for Rest-Conj-Rights, now coming up for heraing. There are NO criminal cases so far. She is working as Govt teacher and earning Rs. 12k per month. She already produced her salary certificate in the court. She did NOT file for maintenance so far. That means, she is able to maintain herself, all these years. We do NOT have any kids. Our marraige was short lived - just for 10 months, during that period also, she was at her home for 3 months. Since then, she does not know where i am and also my salary details.

My questions:

1. Can she file maintenance, if she knows that i am earning good salary? (simply becoz, i am getting high salary?). I earn about 70k per month.

2. If she gets RCR in her favor and if I dont accept her back, can she file maintenance, simply becoz, I did not honor RCR?

3. What she can do, if I dont honor RCR, in first place? These lawyers telling me all kinds of things...
My lawyer says, she can never file Maintenance on me. is that right?

4. Can she make a petition saying that she did not request maintenance all these years simply becoz, she does not my earnings?

My lawyer says, she can never file for maintenance. Is that true? Do you suggest me to take up a job, which pays less for sometime, till the case is done?

Please throw some light on this....
Regards,

#8
Hardy
February 12, 2007
10:38 AM

I do not understand, how some people do not feel like being leeches when they ask other person for alimony/maintenance even when they stayed together for less than 3 months. Well here alimony may either be direct request to court or may be indirect in form of 498A/DV act threats.

I do not understand how some courts tend to settle criminal cases by encouraging exchange of money between parties. Money should not be substitute of punishment for offense/crime (alleged or otherwise) committed. May be courts have a humane approach and know that the bone of contention is not dowry/abuse e.t.c but money which is so dear to some females.

Should not there be significant (non linear) time variable in any maintenance/alimony calculations?


I feel marriages which dissolve(for all practical reasons) within a year(the duration may be debatable) should not have any concept of alimony/maintenance or even if they have one such a concept it should be one fixed amount which should be a multiple of the time (in months) spent together.

#9
Ashish
URL
February 12, 2007
03:04 PM

Why ask for maintenance? The theory behind this is that in many cases, when a wife has run the house while the husband has earned money, if they separate, she has no means of providing for herself. But because of financial insecurity, she should not be forced to maintain a bad marriage.
Of course, in many cases, it is true that women have behaved badly, and used the law to their advantage while harrassing men who are genuinely innocent; but I would still argue (atleast from seeing the cases around me) that women still suffer in a majority of the cases.
The objective should be to make a law that will help women, while avoiding misuse.

#10
A.K.Rathor
URL
February 13, 2007
12:09 AM

These laws are not bad but became BAD because the way they are implemented/used or mis-used (?).

The benefit of these laws should go to the real needy male/female and not to the privileged one.


Why equally educated mordern girls deserve alimony/support as per law?

Time has come to define the creamy layer among Women on the same line as reservation who are not equal but have become more than equal.

#11
Hardy
February 13, 2007
07:58 AM

Well as per sumanth's explanation(calculations)( if the one spouse(generally wives) earns anything more than a quarter of other spouse's(mostly husband's) salary (s)he is not entitled for any maintenance.If that was implemented as is stated in principle, it makes quite a bit of sense.

(1 + a)x(HSAL) = 5 x a x HSAL
where HSAL is salary of spouse with higher earnings and 'a' is the variable to be calculated.
=> a = 0.25 = 1/4

Am I right?

#12
null
URL
February 13, 2007
11:43 PM

Hardy

You are wrong to base your calculations on sumanth, coz sumanth is no one. no entitity.does not exist. mulitiple facets cannot get away with multiple roles.
Therefore the rest are suckers and taken for a joy ride. people who sit and do nothing are suckers.
Am i right?

#13
Kishor Goswami/ D.Doshi
February 27, 2007
04:17 AM

good article abt maintenance and permanent alimony.

I would like to know that if i hold below mentioned property.

1. Property joinly with my wife , wherein my wife name is first.
2.shop self acquired stands in my name only
3.Flat self acquired stands in my name only
4.shop self acquired stands in my name only

Now my wife has deserted me since Nov-2003 leaving behind one small note stating that i am leaving your house on my own accord and you are not at fault.i have 2 adult son of which one is married. she has also taken back all her stridhan for which i have taken receipt for the same. both the sons are residing with my wife and earning well and maintain her well. I want to take divorce.I through my Adv. send Notice of Restitution of Conj.Rights.but she throeugh her adv. notice refused to come back to matrimonial house.
Now my que is - ( 1) if i file petition for divorce. what is the amount i have to give to her as a permanent alimony and full and final settlement and on a divorce decree from the court.
(2) is she entitled for 1/2 share from the property jointly held by we both?
(3) can she claim from my other self acquired property ?
kindly advice urgently. may god help me.

#14
sagar
May 13, 2007
04:00 PM

why is this indian law totally biased towards women ? Are all woman godesses and all men demons?
TELL ME IF A WIFE OF 7 months deserts her husband just bcoz he has a glass of beer twice a week,is the wife who knew it before marrying that her husband is a social drinker,justified in demanding that the husband stops drinking,otherwise she wont live with him.The wife has deserted the husband,and the lawyer says the husband canno file for divorce for yet another 5 months ! As indian law does not accept filling for divorce before 1 year of marriage!!!

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