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Supreme Court’s Fixing Of Alimony At 25% Of Ex’s Salary Is A Move To Benefit Women

Never before has a percentage of the husband's income been fixed as maintenance or alimony.

27/07/2017 8:51 AM IST | Updated 27/07/2017 8:51 AM IST
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Divorce recently became fairer for women, thanks to a landmark and progressive Supreme Court judgment on alimony to be paid to the wife.

The facts of the case were extremely interesting. Sanjoy and Mishti got married in 1995 and their son Abhijeet was born in 1996. After the son was born the husband and wife didn't stay together and filed multiple litigations against each other in the lower courts, then High Court and finally the Supreme Court. Although the divorce was granted in 2012 the husband and wife opened up a new round of litigation regarding the maintenance/alimony.

A bench of Justices R Banumathi and M M Santanagoudar who were adjudicating the matter pointed out the provisions of the law:

"Section 25 of the Hindu Marriage Act, 1955 confers power uponthe court to grant a permanent alimony to either spouse who claimsthe same by making an application. Sub-section (2) of Section 25 ofHindu Marriage Act confers ample power on the court to vary, modifyor discharge any order for permanent alimony or permanentmaintenance that may have been made in any proceeding under theAct under the provisions contained in sub-section (1) of Section 25.In exercising the power under Section 25 (2), the court would haveregard to the "change in the circumstances of the parties". Theremust be some change in the circumstances of either party which mayhave to be taken into account when an application is made undersub-section (2) of Section 25 for variation, modification or rescissionof the order as the court may deem just."

They then remarked:

"Twenty-five percent of the husband's net salary would be just and proper to be awarded as maintenance to the (former) wife. The amount of permanent alimony awarded to her must be befitting the status of the parties and the capacity of the spouse to pay maintenance, which is always dependent on the factual situation of the case... and the court would be justified in moulding the claim for maintenance passed on various factors."

The apex court then directed the husband, who was earning ₹95,527 a month, to pay ₹20,000 towards alimony to his ex-wife and son.

This judgement at least ends the suspense and assures the wife about what to expect from her husband in terms of maintenance.

This judgement is important in light of the fact that never before has a percentage of the husband's income been fixed as maintenance or alimony. Usually, whether it is interim maintenance or alimony, there are no mathematical calculations or formulae to determine the maintenance for the wife. The amount granted usually depends upon the discretion of the court, taking into account various factors like the status of both parties, the income and most importantly what are the facts that can be placed on record and brought before the court. This usually increases the dependence on the lawyer and in a way makes the granting of maintenance like a suspense movie where you don't know the ending. But this judgement at least ends that suspense and assures the wife about what to expect from her husband in terms of maintenance. In a way it also eases the pressure on the husband as he is aware of what percentage of his income will be allocated to the wife in case of a divorce. This especially holds true in case of business families where the husband may have a huge income and it puts a cap (limit) on what he will have to give his wife. Of course, as always, the lawyers can help both sides to reach an out-of-court settlement, which may be less or more than the 25%.

The judgment shows a progression towards not only accepting that women are entitled to money to survive but also fixes a certain amount of the husband's income. We are moving more towards a system of proportionate division of income between the spouses much like in the West, where it may range from 45% upwards in the United States and UK.

Are there loopholes by which the men can evade paying the 25%? Sure. The deviant and devious will find a way to twist the provisions but that doesn't deter us from implementing the law and turning the tables back on them.

* All names changed.

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