Maintenance and Alimony
in India
Maintenance and alimony are financial issues that may arise during matrimonial disputes, separation and divorce proceedings. Depending on the circumstances and the applicable law, a spouse may seek financial support during the proceedings or after the marriage has been dissolved.
A maintenance and alimony lawyer in India may assist with understanding the relevant legal provisions, preparing an application and presenting the financial circumstances before the appropriate court. Adv. Kanchan Talreja’s experience as a maintenance and alimony lawyer is immense, and this is used extensively to ensure every client gets the due financial support.
The amount of maintenance or alimony is not determined by a single formula that’s applicable to every case. Courts examine the facts, financial standing of the parties and the statutory provisions under which the claim is made.
What Is Maintenance?
Maintenance generally refers to financial support provided to a person who is legally entitled to seek it under the applicable law. In matrimonial matters, maintenance may arise during an ongoing proceeding or in connection with a claim made after separation or divorce. Different statutory provisions provide for different forms of maintenance, and the requirements can vary according to the circumstances.Maintenance may be sought for expenses such as:
Food and daily living expenses
Accommodation
Clothing
Medical expenses
Education-related expenses
Other reasonable needs recognised under the applicable law
The exact scope of a maintenance claim depends on the statutory provision relied upon and the facts of the matter.
01
What Is Alimony?
Alimony is generally understood as financial support provided by one spouse to the other in connection with the breakdown or dissolution of a marriage.Depending on the applicable law, financial support may take the form of periodic payments or a lump-sum amount. An alimony arrangement may also form part of a settlement between spouses.
The terms and legal consequences of an alimony arrangement should be carefully checked before accepting it.
02
Who Can Claim Maintenance?
The right to seek maintenance depends on the applicable law and the circumstances of the parties. A wife may, in appropriate circumstances, seek maintenance from her husband. A husband may also have statutory rights in certain matrimonial proceedings depending on the applicable legislation and circumstances.
Children may have separate rights to financial support from their parents under applicable law. Therefore, questions concerning wife maintenance rights in India cannot be answered solely on the basis of marital status. The relevant statutory provision, financial circumstances and facts of the matter must be considered.
Which Provision Applies to Your Claim?
Maintenance in India is not governed by a single law. Which provision applies depends on your religion, whether a matrimonial case is already pending, and which court you approach. More than one may be open to you at the same time.
Section 24 for interim maintenance and Section 25 for permanent alimony under the Hindu Marriage Act, 1955; Sections 36 and 37 of the Special Marriage Act, 1954; Section 18 of the Hindu Adoptions and Maintenance Act, 1956; Section 20(3) of the Protection of Women from Domestic Violence Act, 2005; and Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
| Provision | Who May Apply | Which Court | What May Be Ordered |
|---|---|---|---|
| Section 24, Hindu Marriage Act, 1955 | Either spouse | The court hearing the matrimonial petition | Maintenance while the proceeding is pending, and the expenses of the proceeding. |
| Section 25, Hindu Marriage Act, 1955 | Either spouse | The court that passed the decree | Permanent alimony and maintenance, as a lump sum or as periodical payments. |
| Sections 36 and 37, Special Marriage Act, 1954 | The wife (Section 36); either spouse (Section 37) | The court hearing the petition | Maintenance pending the suit and expenses (Section 36); permanent alimony (Section 37). |
| Section 18, Hindu Adoptions and Maintenance Act, 1956 | A Hindu wife | Family Court or civil court | Maintenance during her lifetime, including where she lives separately for a cause recognised by the section. |
| Section 144, Bharatiya Nagarik Suraksha Sanhita, 2023 (formerly Section 125 CrPC) | Wife, children and parents | Magistrate | A monthly allowance for maintenance. This provision applies irrespective of religion. |
| Section 20 read with Section 23, Protection of Women from Domestic Violence Act, 2005 | An aggrieved woman | Magistrate | Monetary relief for expenses and losses caused by domestic violence, and interim relief while the application is pending. |
| Section 3, Muslim Women (Protection of Rights on Divorce) Act, 1986 | A divorced Muslim woman | Magistrate | Reasonable and fair provision and maintenance from her former husband. |
In every maintenance proceeding, both parties are required to file an Affidavit of Disclosure of Assets and Liabilities — Rajnesh v. Neha (2021) 2 SCC 324. The same judgment sets out what a court weighs in fixing the amount, and the date from which maintenance runs.
03
Maintenance During Divorce Proceedings
A spouse may seek interim maintenance while a divorce or matrimonial proceeding is pending, where the applicable legal requirements are satisfied.
The purpose of interim financial support is different from a final determination of maintenance or permanent alimony. An interim application is considered while the main proceeding continues.
The court may consider the financial position of both parties, their respective needs and obligations and other circumstances relevant under the applicable law.
04
Permanent Alimony
Permanent alimony refers to financial support that may be ordered or agreed upon in connection with the dissolution of a marriage, depending on the applicable law.
It may be structured as:
The form and amount depend on the circumstances and the legal provision under which the relief is considered.
05
Alimony Calculation in India
The process of getting child custoda
There is no universal percentage or mathematical formula that determines alimony in every case.
When considering alimony calculation in India, relevant circumstances may include:
The relevance and weight given to the above factors can differ from one matter to another.
A person’s salary alone therefore does not necessarily determine the amount of maintenance or alimony.
y after divorce depends on the circumstances and the existing legal arrangements.
A parent seeking custody may need to establish why the proposed arrangement serves the child’s welfare. Relevant information may include the child’s current living arrangements, education, relationship with each parent and to provide care.
Where there is already a custody order, the appropriate legal procedure may involve seeking modification or other relief rather than starting an entirely new proceeding.
06
Financial Disclosure
Financial information can be important in maintenance proceedings.
Courts may require parties to disclose information concerning their income, assets, liabilities and expenditure.
Documents that may be relevant include:
The documents required depend on the nature of the proceedings and the issues in dispute.
07
Maintenance and Earning Capacity
The financial position of a spouse is not always assessed solely by looking at current income.Depending on the circumstances, questions concerning education, qualifications, employment history, earning capacity and voluntary reduction of income may become relevant.
At the same time, the existence of an educational qualification or past employment does not automatically establish a particular level of earning capacity. The court considers the evidence and circumstances before it.
08
Maintenance for Children
Financial support for children is separate from the financial relationship between spouses.
Parents may have legal obligations towards their children concerning education, healthcare, accommodation and other reasonable expenses. When parents separate, or divorce, arrangements for these expenses may be considered along with custody and visitation issues.
The child’s needs and welfare are relevant considerations in determining appropriate financial arrangements.
09
Can Maintenance Be Claimed After Divorce?
Depending on the applicable law, maintenance or alimony may be sought after divorce in circumstances recognised by statute. The right to make such a claim and the nature of the relief available depend on the provision under which the application is made and the circumstances of the parties.
A divorce decree does not necessarily resolve every financial issue between former spouses unless those matters have been dealt with through the proceedings or a legally recognised settlement.
10
Maintenance and Mutual Consent Divorce
Spouses seeking mutual consent divorce may agree on financial arrangements as part of their settlement.
The agreement may address:
The terms should be clearly recorded so that both parties understand what they have agreed to.
Where an agreement provides for a lump-sum settlement, the circumstances and legal effect of the settlement should be considered before it is finalised.
11
Maintenance in Contested Divorce
In a contested divorce, one spouse may seek maintenance or alimony even when the other spouse disputes the divorce or other allegations. Financial applications may be considered separately from the question of whether the marriage should be dissolved. Interim maintenance may also be sought while the main divorce proceeding remains pending.
The court considers the relevant financial information and the statutory requirements applicable to the claim.
12
What If the Paying Spouse Does Not Comply?
Where a court has passed a maintenance or alimony order, failure to comply may have legal consequences. The available remedies depend on the nature of the order, the legislation under which it was passed and the circumstances of non-compliance.
A person who has not received payments ordered by a court may need to take appropriate enforcement proceedings before the relevant court.
13
Can a Maintenance Order Be Changed?
In appropriate circumstances, a maintenance order may be subject to modification, variation or reconsideration where the applicable law permits it. A substantial change in income, financial circumstances, employment, responsibilities or other relevant factors may become material.
Whether an existing order can be changed depends on the statutory provision under which it was passed and the circumstances presented to the court.
14
Maintenance and Property
Maintenance and ownership of property are separate legal issues, although the financial circumstances surrounding property may be relevant in a maintenance proceeding.
Ownership, possession, income generated from property and other financial interests may need to be examined where they are relevant to the parties’ financial position. A claim for maintenance does not automatically transfer ownership of property from one spouse to another.
15
Maintenance Claims Involving NRIs
Where one spouse lives outside India, maintenance proceedings may involve additional procedural considerations.
Issues may include:
The legal and practical issues depend on the countries involved and the applicable law.
Legal Assistance in Maintenance and Alimony Matters
A maintenance or alimony proceeding requires an assessment of the applicable law and the financial circumstances of both parties.
Legal assistance may include reviewing financial documents, identifying the appropriate statutory provision, preparing an application or response, addressing financial disclosures and representing a party before the relevant court.
The amount of maintenance or alimony cannot be determined reliably without examining the facts and financial information relevant to the matter. Adv. Kanchan Talreja and her team help her clients bring all the necessary facts and information to the fore so the court can reach the right decision.
Courts decide financial claims according to the applicable law and the evidence presented. No particular amount, order or outcome can be guaranteed in advance.
