While the principles underlying alimony and child support laws are commendable, their practical application often sparks controversy.
Published Dec 16, 2024 | 10:16 AM ⚊ Updated Dec 16, 2024 | 12:55 PM
Understanding Alimony, Maintenance, and Child Support in India.
The recent suicide of a Bengaluru techie, allegedly due to harassment over demands of hefty alimony, has sparked a nationwide discussion on the legal ramifications of divorce proceedings.
The dissolution of a marriage is often a deeply emotional and complex legal process. In India, the financial aftermath of divorce is governed by laws around alimony, maintenance, and child support.
These provisions aim to ensure fairness and financial stability for both parties involved, especially in cases where one spouse is economically disadvantaged.
While the laws are intended to be just, their application often leaves room for varied interpretations and personal struggles.
Alimony and maintenance are often used interchangeably, but they have distinct meanings. Alimony is a one-time or periodic financial settlement that one spouse pays to the other after divorce.
It is intended as compensation to help the financially weaker spouse maintain a standard of living similar to that during the marriage. Maintenance, on the other hand, is broader and includes financial support during the separation period as well as post-divorce.
Samartha Srinivasa, founder of JK Legal in Bengaluru, explained, “Maintenance encompasses interim support provided during the court proceedings and subsequently, for day-to-day maintenance and living expenses of the spouse, ensuring the dependent spouse can sustain themselves while the divorce or maintenance proceeding is finalised. Alimony, however, comes into effect post-divorce and is either a lump sum or recurring payment.”
The amount and duration of alimony are determined by various factors, such as the duration of the marriage, the income and earning potential of both parties and the financial needs of the dependent spouse.
For instance, courts tend to favour alimony settlements in cases where one spouse has sacrificed career opportunities for the family — a reality that often affects women disproportionately.
The legal provisions for alimony, maintenance, and child support in India are governed by various laws, including:
Hindu Marriage Act, 1955: Provides for maintenance and alimony in Hindu marriages.
Muslim Personal Law: Offers provisions for maintenance under Sharia law.
Special Marriage Act, 1954: Governs interfaith and civil marriages.
Criminal Procedure Code (CrPC), Section 125: Allows dependent spouses, children, and parents to claim maintenance.
Bharatiya Nagarik Suraksha Sanhita (BNSS), Section 144: Maintenance of dependents
The process of claiming alimony can be challenging, as Sukesh and Anjana (names changed), a couple who divorced post-Covid, discovered.
Married for four years and raising a young child, Anjana sought alimony to support herself and her child. “Sukesh was willing to provide support, but the process was lengthy, and we struggled to navigate the legal system,” Anjana said. “The guidelines were clear, but implementing them was complicated and expensive, especially when you’re emotionally and financially strained.”
Despite mutual agreement, the couple faced hurdles such as multiple court hearings and high legal costs. “The divorce process itself was exhausting. Adding the financial negotiations made it even more difficult,” Sukesh added.
In contrast, Atul (name changed), an IT professional from Chennai, faced a different challenge. After six years of marriage, he found himself paying a significant alimony amount despite alleging that the breakdown of the marriage was his wife’s fault.
“The law doesn’t account for who is to blame,” he said. “It’s simply about financial responsibility, and as the sole earner, I bore the brunt. The settlement drained my savings and left me jobless.”
Child support is a separate legal obligation that ensures the welfare of children post-divorce. Unlike alimony, which can be waived under mutual agreement, child support is almost always enforced by the courts. This financial support typically covers expenses like education, healthcare, and daily living needs.
Pia, a single mother running a small online business, recounted her struggle to secure child support from her ex-husband. “He was initially reluctant to pay,” she said. “It took a lot of convincing and legal intervention to ensure he fulfilled his responsibilities. The court prioritised the child’s welfare, which was reassuring.”
Despite facing resistance, Pia found the legal system supportive. “The court’s stance on child welfare was clear. They emphasised that the child’s needs come first,” she said.
However, the process still took a toll on her emotionally and financially, especially as a small business owner balancing work and caregiving.
The determination of alimony and maintenance in India takes into account several aspects. Courts evaluate the financial standing of both parties, including their incomes, assets, and liabilities.
The duration of the marriage also plays a significant role, with longer unions often leading to higher or extended alimony obligations. Additionally, the supported spouse’s standard of living during the marriage is carefully considered, ensuring that post-divorce financial support aligns with their prior lifestyle.
In cases involving children, their welfare takes precedence, influencing decisions on both alimony and child support.
The court’s primary goal is to ensure fairness. “Judges consider multiple factors, including the income disparity between spouses, the financial needs of the dependent spouse, and the welfare of children,” Srinivasa noted. “The process is designed to balance responsibilities and protect the rights of all parties involved.”
Prenuptial agreements, common in many countries, are neither recognised nor enforceable under Indian law. This is deeply rooted in cultural and social perceptions of marriage in India.
Samartha Srinivasa explained, “Indian marriages are seen as a sacred institution, a religious bond built on trust and commitment. The idea of a prenuptial agreement, which anticipates separation even before the marriage begins, does not align with the ethos and fabric of Indian society.”
He further elaborated that while there has been a rise in divorce rates, particularly in metropolitan cities like Delhi, Mumbai, and Bengaluru, prenuptial agreements remain incongruous with the traditional Indian view of marriage.
“Introducing enforceable prenups could undermine the very fabric of marriage. It might turn marriage into a commercial transaction, fostering a mindset of having an ‘exit plan’ rather than working through challenges.”
Interestingly, even couples where one partner is a foreign national often seek legal advice about prenuptial agreements. However, if the marriage is conducted under Indian laws, such agreements remain invalid.
Despite modernisation and changing relationship dynamics, the consensus among many legal professionals is that enforcing prenups could inadvertently lead to an increase in divorces, as the agreements offer a perceived “cushion” for easy exits.
While the principles underlying alimony and child support laws are commendable, their practical application often sparks controversy.
Many argue that the system exhibits a gender bias, favouring women even in situations where the fault may not lie with the husband. A classic example would be, separation due to the ground of adultery.
Affordability is another significant challenge. Furthermore, the emotional toll of navigating these prolonged and contentious legal battles can leave individuals drained, particularly in cases where animosity runs high between the parties involved.
Alimony, maintenance, and child support are critical tools to ensure financial justice during and after divorce. While the legal system provides a framework, the real-world application often depends on the individual circumstances of each case.
As India’s societal dynamics evolve, so too must its laws and systems, ensuring they remain fair, efficient, and accessible for all.
Legal expert Samartha Srinivasa suggested, “We need greater awareness and mediation options to help couples reach amicable agreements. Courts should also streamline processes to reduce delays and have a balanced approach while deciding the interests of the parties.”
“In cases involving children, their welfare takes precedence, influencing decisions on both alimony and child support. The judicially evolved principle of ‘best interest of the child’ is accepted in all countries and gives ample scope for the court to go beyond the strict framework of laws and ensure children are safeguarded,” he added.
(Edited by Muhammed Fazil.)
