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Alimony, also known as maintenance, refers to the financial assistance provided by one spouse to the other after divorce or during pendency of a divorce petition.

There are two types of maintenance- Interim maintenance also known as Alimony pendente lite, which is provided during the court proceedings, and permanent alimony, which is provided at the end of the legal separation process. Interim maintenance is meant to cover the basic needs and expenses of the court proceedings of the spouse receiving it, while permanent maintenance is a more permanent arrangement intended to ensure that both spouses are financially secure after the divorce.

It is important to note that alimony is not meant to be a punishment for either spouse, but rather a means of helping a spouse who may be struggling financially after the divorce. The amount of alimony awarded will depend on a variety of factors, including the income and financial resources of each spouse, their standard of living during the marriage, and the length of the marriage.

Who can ask for alimony?

In India, the legal requirements for alimony and maintenance vary based on personal laws. For example, under the Hindu Marriage Act, both spouses may request alimony, but under the Special Marriage Act, only the wife may make such request. In general, husbands may be required to provide financial support to their wives after divorce.

Quantum of Alimony

There is no fixed formula or rule for calculating alimony in India. Alimony can be provided as a periodic payment, such as a monthly payment, or as a one-time payment in the form of a lump sum. When alimony is paid periodically, the Supreme Court of India has stated that a benchmark amount of 25% of the husband's total monthly salary is just and proper. When alimony is paid as a lump sum, It may range from 1/5th to 1/3rd of the husband's total worth, depending on the specifics of the case. However, it is important to note that each case is unique and the amount of alimony may vary depending on the specific circumstances.

When determining the amount of alimony to be granted, courts generally consider the following factors:

Ø  The income and assets of each spouse;

Ø  The conduct of each spouse during the marriage;

Ø  Any mandatory deductions such as Income tax, EMI etc that may affect the net income of the spouse;

Ø  The liabilities of the paying spouse, such as the support of dependent parents;

Ø  The social status and lifestyle of both spouses;

Ø  The age and health of both spouses;

Ø  The length of the marriage;

Ø  The expenses associated with the education and upbringing of any children;

Ø  The specific circumstances and facts of each case will be taken into consideration in determining the appropriate amount of alimony to be granted.

Applicability of Income Tax on Alimony:

Periodic alimony payments, such as those made monthly or quarterly, are considered taxable income in the hand of the recipient. These payments are added to recipient's total income and taxed according to his/her tax bracket, while no deductions available for the payer. On the other hand, lump-sum alimony payments are considered a capital receipt and are tax-free for the recipient.

Maintenance in Mutual Divorce Cases:

When a divorce takes place amicably and without legal conflict, alimony may not be required. In these cases, the husband and wife may agree to pay a mutually agreed upon amount of money to each other based on factors such as their respective incomes and assets. This alimony is typically negotiated and agreed upon without the involvement of the court.

Landmark Judgments:

In Kalyan Dey Chowdhury vs Rita Dey Chowdhury, Civil Appeal No. 5369 of 2017, the Hon'ble Supreme Court observed "25% of the husband’s net salary would be just and proper to be awarded as maintenance to the respondent-wife. The amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance. Maintenance is always dependant on the factual situation of the case and the court would be justified in moulding the claim for maintenance passed on various factors."

In the case of Sh. Bharat Hegde vs Smt. Saroj Hegde, 140 (2007) DLT 16, I (2007) DMC 815, Delhi High Court Held that "From the various judicial precedents, the under noted 11 factors can be culled out, which are to be taken into consideration while deciding an application under Section 24 of the Hindu Marriage Act. The same are:

1.       Status of the parties.

2.       Reasonable wants of the claimant.

3.       The independent income and property of the claimant.

4.       The number of persons, the non applicant has to maintain.

5.       The amount should aid the applicant to live in a similar life style as he/she enjoyed in the matrimonial home.

6.       Non-applicant's liabilities, if any.

7.       Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.

8.       Payment capacity of the non applicant.

9.       Some guess work is not ruled out while estimating the income of the non applicant when all the sources or correct sources are not disclosed.

10.    The non-applicant to defray the cost of litigation.

11.    The amount awarded Under Section 125 Cr.PC is adjustable against the amount awarded Under Section 24 of the Act."

References:

https://blog.ipleaders.in/how-to-establish-how-much-alimony-you-should-get-in-case-of-divorce/

https://www.businesstoday.in/magazine/cover-story/story/divorced-how-to-best-negotiate-for-good-alimony-amount-37957-2013-03-25

https://vakilsearch.com/blog/alimony-laws-on-divorce-in-india/

https://www.adityabirlacapital.com/abc-of-money/how-is-alimony-calculated-in-india