Understanding Alimony And Its Provisions

When a couple decides to get separated by way of divorce, the decision of alimony is the one which needs to be decided and has to be settled between both the parties. Alimony is the financial support provided by the person to the other partner for living expenses. Often spouses fail to conclude the  matter of alimony. In these cases, Lead India experts guide and counsel the partners as and when required.

Types of Maintenance:

  1. Interim Maintenance
  2. Permanent Maintenance
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Overview

A married couple has duties, responsibilities as well as obligations towards each other. They are required to support their partners physically, mentally as well as financially throughout their life. In any uncertain event in a marriage, where the partners want to have a mutual divorce then it is essential for the husband to provide financial support to his wife. However, in case of contested divorce, based on the merits of the case, alimony is granted to the spouse.Each spouse has the right to claim financial support from the other spouse. If the divorce is pending and the spouses are living separately, then also, the spouse in need of financial support may claim alimony from the other spouse. 

Alimony can be categorised mainly to permanent alimony, reimbursement alimony and lump-sum alimony, which has been described below. Alimony cannot be given to every spouse who makes an application for the same. There are certain conditions which make a spouse eligible to get alimony. Like any other income, the payment received through alimony is also taxable.

What Is Alimony

Alimony has been derived from the Latin word ‘Alimonia’ which refers to sustenance. Alimony can also be referred to as maintenance. The legal obligation of a partner towards their spouse for providing financial support after divorce or separation by the order of the court is Alimony.

Types of Alimony

Following are the four types of Alimony.

1. Permanent Alimony- As the name suggests, permanent alimony is paid until the death of the partner, that is, it continues eternally. Section 25 of the Hindu Marriage Act makes provision for permanent alimony. Based on the following two conditions one can claim for permanent alimony

  • In cases where the partner receiving the alimony has no track record of working before marriage or has no such skills to work, can claim alimony under this type. However, the partner has played the role of homemaker after the marriage.
  • If one of the partners is unable to take care of themselve due to physical inability or is differently able and is incapable of supporting themselves, can claim alimony under this condition.

2. Reimbursement Alimony- The act of repayment refers to reimbursement. In this type of alimony, reimbursement of alimony depending upon the circumstances occurs when the court grants to reimburse half or even the whole amount spent by the spouse. Generally, the alimony spent by one spouse for fulfilling the needs of another spouse or their children such as college, school, employment, and further, that increase forms the basis of reimbursement.

3. Lump-Sum Alimony- A lump-sum alimony as the name suggests is a one-time payment where the whole sum of the alimony is calculated and paid at an instance based on the assets gathered by the marriage or property of the spouse. No recurring payment is made to the spouse.

Eligibility For Alimony

Section 25 of the Hindu Marriage Act states that an order for paying maintenance or alimony in the form of a lump-sum amount or periodical payment to the applicant can be made by the court. Here applicant refers to the spouse who has made the application for maintenance and the non-applicant refers to the spouse who shall make payment under the court’s order.

This implies that both a woman as well a man can claim financial support or alimony by the order of the Court. A wife is entitled to alimony for maintaining her standard of living even though she is working but the net income is substantially less than her husband.

The court in case the wife is not working, determines the amount of alimony to be paid to her on the basis of her educational qualification as well as the ability to work. Alimony is also granted by the court to the husband where the husband is not able to work due to physical disability or is differently-abled.

Factors Determining Alimony

There are several factors that are taken into consideration by the Court while determining the payment of alimony to the spouse. Following are some of the factors considered while deciding alimony by the Court.

  • Assets including the properties of both the husband as well as wife
  • Financial condition of the spouse who will be paying the alimony as well as the spouse who is to get the alimony
  • Period of marriage between the husband and wife. The duration of marriage matters as when a marriage lasts longer than 10 years, lifelong alimony can be granted by the court. 
  • Age of the spouse.
  • Health condition of both the spouse
  • Dependent of both the spouses, if any.
  • Education as well as raising expenses of the children
  • Education and skill of both spouses.

Taxability Of Alimony

Alimony is generally paid in a lump-sum amount or it is also paid periodically depending upon the circumstance of the case and the order granted by the Court. No specific formula is mentioned for calculating the amount of alimony to be paid. Based on the above-mentioned factors, the alimony can be decided by the court.

Payment of Alimony in lump-sum- The Income Tax Act 1961 makes no such provision governing the taxability of alimony. The mode of payment of alimony decides its taxability. Alimony is not considered as income, rather it is regarded as a capital receipt to which the provisions of the Income Tax Act 1961 do not apply.

Periodical payment of Alimony- Recurring form of alimony is considered a revenue receipt. Therefore this comes under the provision of the Income Tax Act, and thus is taxable in the hands of those who receive the alimony.

However, the spouse making the payment of alimony shall not claim deductions against the same under the IT Act provisions.

Grounds For Denying Alimony

  1. Adultery/ Infidelity- The husband can deny paying alimony if his wife is accused of committing adultery. The wife is no longer entitled to claim alimony if she is unfaithful towards her husband and the husband proves the wife’s adultery. 
  2. Remarriage- When the wife remarries, he has the right to request for denying payment of alimony to her.
  3. Well-Earning- If the income of the wife is significantly higher than that of the husband, the agreement of alimony can be waived. However, it is at the discretion of the court. If the court finds the wife to be earning well and maintaining her standard of life before their divorce or separation, then the court can deny the payment of alimony by the husband
  4. No source of income- Alimony can be denied on the ground by the husband if he proves that he has no source of income.
  5. Physical Inability- If the husband is physically incapable of earning and taking his own care, he can deny paying the alimony. In some cases, the court may also order the wife to pay alimony.

Consequence If Alimony Is Refused To Pay

In several cases, alimony is refused to be paid by the ex-spouse. Some have even quit their jobs to save themselves from paying alimony. However, if the court has ordered to pay alimony and the spouse refuses to pay, it will be regarded as contempt of court and lead to imprisonment for years based on the case. A hefty amount of fine can also be imposed by the court for compensating their former partner.

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FAQs On Alimony

Both the husband as well as a wife are entitled to get alimony under section 25 of the Hindu Marriage Act, 1955.
When the spouse who is to pay alimony is well earning, then it becomes mandatory for him or her to pay alimony to the other spouse for supporting them financially.
The amount, as well as duration of alimony, usually depends on the period of existence of marriage. Lifelong alimony is granted by the court where the duration of marriage lasts more than 10 years.
Husbands are also entitled to claim alimony by making an application, considering that he is unable to support himself due to any physical disability or other health condition under section 25 of the Hindu Marriage Act.
Yes, a working wife is entitled to claim alimony where there is a substantial difference between the salary of her and her husband.
The court can sentence the spouse to imprisonment along with imposing a heavy fine if the spouse ordered to pay alimony fails to do so.
Alimony that is paid periodically is considered revenue receipt, therefore it is taxable in the hand of the spouse receiving the amount.
Yes, the wife is entitled under section 24 of the Hindu Marriage Act for claiming maintenance without divorce.
It has been set down by the Supreme Court of India in a case that 25% of the net monthly salary of the husband is the minimum amount to be granted to the wife.

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Swati Singh

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