Last week, the Supreme Court set the benchmark for the maintenance to be paid by a husband to an estranged wife at 25% of his net salary, stating that this constituted a "just and proper" amount.
This order was for a man's plea challenging a Calcutta High Court order asking him to pay his former wife a sum of Rs 23,000. The Supreme Court reduced the amount by Rs 3,000 to Rs 20,000, since he had remarried and had a child from the second marriage.
Though this isn't a permanent ruling, and the court will take other factors into account, it has been called low and unfair to women by several legal experts, because it excludes allowances, benefits and components such as the provident fund, as well as other assets.
Mumbai-based divorce lawyer Vandana Shah says that Indian laws on maintenance often reflect social biases that it isn't acceptable for a woman to get the father's or her husband's property. Alimony continues to be seen as a dole rather than an entitlement.
"There is this bias that a woman should be happy with whatever she gets, rather than what is her right," Shah said. "We don't have the concept where we calculate the invisible employment of women. Women get married, have children and don't have time to come back to work. If you come back after a five year gap, you come back a rung lower, or if you're lucky at the same level."
"Law is India is very social so there is this bias that a woman should be happy with whatever she gets, rather than what is her right."
In addition, the law in India does not specify the quantum of the spouse's income that should be given as maintenance and depends on the specific situation, unlike in the US where by and large, the percentage is defined. This is where the Supreme Court order is significant in specifying a percentage.
Further, the law puts the onus on the wife to prove the husband's financial status and it often becomes difficult for estranged wives to furnish proof, especially in the informal economy. "In the end, it boils down to what your lawyer argues in court and whether you are able to prove your husband's wealth in court," Shah says. "A lot of women don't know anything about their husband's income and property because it is considered in poor form"
The wife cannot be a parasite on the husband's earnings.
In March, a Delhi court refused to increase the monthly interim maintenance awarded to a woman in a domestic violence case, saying she was "not supposed to sit idle at home" and "be a parasite" on the husband's earnings. "The appellant herself is a well-educated lady having a post-graduation degree: MA, B.Ed and LLB, and is reported to be more qualified than the respondent (husband). She can earn herself. She is not supposed to sit idle at home and be a parasite on the earnings of the respondent," the judge said. The women who had appealed sought to enhance the monthly interim maintenance of Rs 5,500 awarded to her in 2008 to Rs 26,000.
Not all educated people get jobs.
However, also in March, a Delhi sessions court awarded an interim alimony to a woman after rejecting her husband's claim that she was a graduate and thus qualified enough to earn a living. "Being qualified is one aspect but based upon the qualification, a person being able to secure a job is another aspect. Just because a person happens to be educated does not necessarily mean that he would be able to secure a job." the court said. The woman had alleged that she was tortured and beaten by her husband and in-laws for insufficient dowry.
Man told to pay wife who quit work after marriage
Also in March, a sessions court in Mumbai ordered a man to pay his wife an interim maintenance as she had quit her business after marriage in a domestic violence case. Taking note of the challenges that the wife may face in restarting her business, the court said. "It is not that she has left the job after separating from the appellant (husband). It is quite natural that she may find it difficult to start the business again and this fact differentiates the case in hand." It also refuted the husband's argument that the woman was qualified as a fashion designer and could not sit idle and ask for maintenance.
'Law does not help the lazy, who are waiting for a dole'
In March 2016, a family court in Mumbai rejected a woman's plea for interim maintenance by arguing that the law does not help the lazy, who are waiting for a dole. "A lady who is fighting a petition filed for divorce can not be permitted to sit idle and to put burden on the husband, demanding alimony from him during the pendency of the petition. Section 24 (relating to maintenance) is not meant to create an army of persons who will sit idle waiting for a dole to be awarded by her husband," the court said. The woman had complained of cruelty by her husband and failure to provide for her basic needs. In turn, the court rules that the woman was not entitled to maintenance as she was "well-qualified" and "working prior to marriage", and had failed to prove her husband "good financial condition".
Maintenance should be enough to enable the wife to live a life of dignity, and not mere survival.
In April 2015, the Supreme Court ruled that a man must pay enough alimony to his estranged wife to let her live a life of dignity and not just for survival. "Be it clarified that sustenance does not mean and can never allow to mean mere survival. A woman, who is constrained to leave marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband," a bench said. The court went to add that the husband would have to pay the maintenance to the wife even if he had no job. "If the husband is healthy, able bodied and is in a position to support himself, he is under legal obligation to support his wife, for wife's right to receive maintenance under Section 125, unless disqualified, is an absolute right," it said.
A woman living in adultery cannot claim maintenance
In August 2015, the Madras High Court ruled that if a husband had obtained divorce on the ground of adultery committed by the wife, then he was exempted from the obligation to pay her maintenance under Section 125 of the Code of Criminal Procedure (CrPC). "Just as a man has an obligation to maintain his divorced wife, the woman also has an obligation not to have illicit relationship with another man," the judge said. "The divorcee would suffer disqualification from claiming maintenance if she had relationship with another man. She was entitled to get maintenance from the person with whom she had relationship and not from the ex-husband," he said.
If the wife is highly qualified, she is not expected to remain idle.
In June 2015, a Mumbai family court rejected an estranged wife's application for maintenance saying she was highly qualified. The woman had argued that she was forced to leave her job in 2013, and had no source of income. "If the spouse is well qualified, she is not expected to remain idle... The law does not expect an increasing number of such idle persons who by remaining in the arena of legal battles, try to squeeze out the adversary by implementing the provisions of law suitable to their purpose," the court said.
Second wife can claim alimony
In 2013, the Supreme Court ruled that a second wife in a Hindu marriage could claim alimony in cases where the man had kept the woman in the dark about his first marriage. In such cases, the man was legally bound to provide maintenance for her and her children.
If the wife is capable of working, she cannot be considered a dependent.
In 2014, a sessions court in Delhi denied alimony to a woman saying that she was capable of working as before marriage. "Wherever the wife is capable to work and had been working, she shall not be considered dependent upon the husband for her survival, there is no apparent error in the order of trial court," it said. It added that since the couple did not have a child, the woman was as "independent" as the man to work and maintain herself.
Women are expected to have an economic contribution in running a household
In August 2015, a Delhi court denied interim monthly allowance to a woman in a domestic violence case, saying that she had done a beautician course and so had the skills and qualifications to find work. "In today's scenario, even women are expected to contribute economically in running the house,"it said. "Admittedly, complainant is having such professional skill and qualification that she may not find any difficulty in searching suitable job for herself." The court added that the fact that the woman had no experience as a beautician was not a justification "as to why she is sitting idle".
Husband must pay maintenance even if wife earns well
In August 2015, the Bombay High Court ruled that a man had to pay maintenance to his wife even if she earned well. The man had argued that the maintenance sum was exorbitant and that his wife earned enough money. "There is no running away from your responsibility of paying for your daughters and wife. The expenses of internet, cable etc. are mainly of your daughters and you have to pay. The maintenance amount is bifurcated towards the expenses of your wife and daughters, and is not at all exorbitant," the court said.
Wife cannot be allowed to sit idle and be a financial burden on her husband.
In March 2016, a court asked an estranged wife to look for a job, arguing that since she was qualified enough to to earn, she shouldn't be allowed to sit idle.
"The respondent (woman) admitted being more qualified than the appellant (man). She admitted to being able-bodied and having capacity to earn. As such, she cannot be allowed to sit idle at home to put financial burden on the appellant," the judge said. The woman had argued that though she was more qualified than her husband, she had married young and never had a job. Though the court asked the husband to pay her maintenance for a year, it eve asked the woman to seek his help in finding a job.
Wife's job isn't ground to escape maintenance
In October 2016, the Gujarat High Court questioned the argument that a working woman should not be entitled to maintenance and added that it should be used as a reason to not pay maintenance. The litigant had argued that his estranged wife had a job that earned her enough income to maintain herself. "If wife is doing some job work on contract basis and earning, the petitioner husband on the contrary should be happy that she is trying to maintain her affairs even in his absence," the judge said, noting that the woman only had a contractual job. "Therefore, to make the wife comfortable in her living and to bring up the child, the husband must be saddled with some responsibility to pay reasonable amount."