When two people get married, they have an obligation to maintain each other and it does not necessarily end with Divorce. There is a provision under Criminal Procedure Code, 1973 under section 125, it clearly states that either of the spouse who is unable to maintain themselves entitle for the maintenance in order to maintain themselves and their children if living separately. Maintenance extends to any person economically dependent on the marriage.
In such cases generally wife are the dependent one on their husband. However it depends on the husband having sufficient means. When deciding upon the payment of the alimony, the court will take into account the earning potential of the husband, his ability to regenerate his fortune and his liabilities.
Factors that influence the duration and amount of alimony
There are following factors that need to be followed at the time of Divorce between the parties. It is decided upon the duration of marriage, if it lasts over a decade their spouse has to pay alimony for a longer duration. The other essential factors are as follows-
- Age of the spouse (or the person who is ought to receive the alimony)
- Economic condition of financial condition of either of the spouses.
- The health of both the spouse (The failing health or a medical condition of one of the spouses who is going to receive the alimony may act in favor of him or her. They can claim a larger alimony on the basis of their failing health).
- The spouse that has custody of a child may end up paying a large amount of alimony for his minor child.
When divorce is granted then how property is to be settled?
Sometimes when a spouse is not in a position to give alimony to their wife, and if he is having assets like property with him, then alimony is decided upon the amount of property also. Therefore, the property may be granted to one or other spouse in the divorce settlement, until this is done, both spouses have the right to remain on the property.
Alimony laws in mutual Divorce
Content acts as an important role in both the cases i.e. in starting of their new lives (Marriage) to ending of the same. The mutual consent for divorce does not process easier for legal separation. Particularly in India mutual Divorces are the most easier, fastest and cheapest way of getting divorce. In other words we can say that mutual consent for divorce makes the process of getting legal separation much easier than any other ground for Divorce.
Alimony can be decided mutually between the parties if they want to. We can say that it is the easiest way to end their relationship without creating any hassle. Here no law mandates that the husband has to pay the maintenance to the wife, however it could be the other way round also if needed. The court does not interfere in the alimony fixed by the couple under a mutual understanding and also gives coule the freedom to walk out of the marriage without maintenance under mutual agreement. However assessment of the amount declared by the spouse is the discretion of the court.
Just like marriages are governed by various personal laws, divorce also comes under the ambit of the religious matrimonial and divorce laws that couples opt for-
- Hindus- Couples who are married as per Hindu Law will bet divorce as per Hindu marriage Act, 1956.
- Christians- Couples will get divrce as per Indian Divorce Act, 189 or as per Special Marriage Act, 1954.
- Muslims- Muslims will get divorce as per dissolution of marriage act, 1939 and Muslim women (protection of rights on divorce) Act, 1986.
- Intercaste- Couples who get married in different castes, if they get divorced then Special Marriage Act, 1954 would be governed. However, under this act only a wife can claim alimony and the rights do not extend to the Husband.
Factors for determining Alimony
If Diorce is a contested divorce and not mutual then court come into picture by deciding the amount of alimony for the spouse, and while deciding the alimony following factors are being determined-
- Financial status of the Paying Partner- The court will see the financial status of the paying partner first and only then will decide upon the alimony.
- Requirements of the Partners being maintained- The alimony is provided as per the reasonable needs of the spouse claiming the maintenance.
- Salary of the spouse being maintained- The court also considers the income of the spouse to determine the need of the alimony for them. The court can decide whether to give or not to five the alimony amount to the spouse.
When Alimony need not be paid?
- There is no minimum or maximum limit set for payment of alimony and there are also no laws to substantiate the compulsory payment of alimony, so the partners can mutually decide on non-payment of the maintenance.
- At times where the wife remarries, the husband can pray to not to pay the alimony thereupon.
- If the court finds that the partner claiming the alimony is financially fit to look after themselves and they will not be needing the amount to maintain their lifestyle whatsoever.
Therefore, the main benefit of the consent divorce is the maintenance cost given by the husband to their wife. In general, maintenance is the money given after the divorce by the earning partner to the dependent spouse to maintain them. The couple can fix the alimony under mutual understanding and the court will not interfere in this.
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