Divorce is an expensive affair, which is evident from the reported alimonies provided in high-profile cases, from Hrithik Roshan-Sussanne Khan (Rs 380 crore), Aamir Khan-Reena Dutta (Rs 50 crore), and Saif Ali Khan-Amrita Singh (Rs 5 crore). Karisma Kapoor got Rs 14 crore from her then-husband Sanjay Kapur, along with his house in Mumbai.
Although an average person may not have to shell out crores in divorce settlements, it is often a sizeable chunk of a person's net worth. The delay in getting financial support or not getting a fair financial support is the risk which the other spouse has to bear with.
Being mindful of interim maintenance and final alimony
The financially vulnerable spouse has the right to seek financial support from the higher earning spouse. In a majority of the cases, it is the wife who receives this support. "If the wife has insufficient or no independent income to support herself and the expenses of the proceedings, the court may on an application by the wife, order the husband to pay the expenses of the proceeding and also a monthly allowance during the course of the proceeding," says Bharat Chugh, former judge and lawyer, Supreme Court. He adds that this allowance is determined with regards to the income of both the parties.
The Hindu Marriage Act, 1955, Hindu Adoption and Maintenance Act, 1956, Domestic Violence Act, 2005, and Section 125 of the Criminal Procedure Code, 1973, provide for maintenance as one of the rights which a wife can claim. The reasoning behind this provision is that until a couple of decades ago, women were financially reliant on men and had no choice but to stay in miserable matrimony.
There are two types of monetary support which the higher earning spouse usually has to give to the other one -- interim maintenance under which the amount is given during the pendency of court proceedings and the second is the permanent alimony, which is given at the time of the passing of the final decree. "Sections 24 and 25 of the Hindu Marriage Act provides for interim and permanent alimony," says Supreme Court lawyer Preeti Singh.
"To claim alimony, the wife needs to submit not only evidence of her income and assets before the court but also evidence of monthly expenses and which she ought to make in order to maintain the same standard of living which she would have enjoyed had she been at her matrimonial place," says Singh.
In case of mutual consent divorce, both spouses decide the maintenance and alimony together. However, in contested matters, the court intervenes and decides the issue of alimony or maintenance on the merits of each case. "The power of the court to grant alimony is not limited to cases where the decree is obtained by the wife. Courts have powers to grant alimony to the wife even where the husband is granted a decree. It is quite possible that no alimony or maintenance is awarded based on the facts and circumstances of the case," adds Singh.
There is no fixed formula as different courts have adjudicated differently, keeping in mind the unique circumstances of the case at hand. "While granting permanent alimony, no arithmetic formula can be adopted as there cannot be mathematical exactitude and one set formula cannot be applied in all cases blindly," says senior Supreme Court lawyer Geeta Luthra.
A study conducted by Shubhada Maitra and Gayathri K.R. for the Tata Institute of Social Sciences, with the support of the Bombay High Court, titled 'Divorce Trends and its Implications for Children's well-being: A study of Family Court in Mumbai', analysed divorce cases in Mumbai family courts in the decade of 2000. It was found that in most of the cases, men initiate custody for minor children. In an overwhelming number of cases, the court has declared the mother to be the custodial parent. "While significant time has passed, the findings of this study more or less reflect the status quo," says Chugh.
Similarly, another trend observed was that it is the husband who is ordered to pay maintenance for wife and children both during and after the proceedings.
Courts have approached section 27 of the Hindu Marriage Act, 1955 through different perspectives. It has been reasoned that any relief under section 27 is subject to the discretion of the court. The law provides an intriguing avenue for relief to a wife in addition to alimony.
The section states: "In any proceeding under this Act, the court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife."
This means that based on the facts and circumstances of the case, the court has the power to decide on the distribution of assets held by both man and wife, including streedhan, joint property and other possessions which the couple had possessed before and during their matrimonial journey. "The court may also make provisions in the divorce decree with respect to any property belonging jointly to the husband and wife," says Chugh.
Are 'mutual consent divorce' or 'out-of-court settlement' better options?
In mutual divorce, the settlement amount is fixed consensually by both the parties. "When a couple gets divorced by mutual consent, the decision on whether any alimony or maintenance is to be paid is a matter of consensus between them. In such cases, alimony or maintenance could be paid by either husband to the wife or vice versa. The court passes the decree of divorce on terms agreed between the couple. The decree binds the couple and is enforceable by the court," says Singh.
"In the absence of the marital property law in the country, matrimonial settlement and alimony payments have too strong an element of uncertainty and lack of clarity. However, it is in an out-of-court settlement, mostly fixing a one-time alimony, that substantial justice seems to happen, particularly in business families," says Luthra. She adds that the amount ranges from a paltry sum of Rs 25,000 to several crores or hundreds of crores depending on sensitivity and fairness of both sides.
If both sides are accommodating and flexible, then a mutual consent divorce or out-of-court settlement saves precious time and a lot of effort.
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