Divorce is more than simply the dissolution of a marriage; it will result in huge changes in a person’s daily life, their finances, and their emotional state. The question that most individuals will typically ask when they separate from their spouse is: Who is going to provide financial support after this divorce?
In India the law provides a structured way of providing protection to a spouse, child, or parent who is unable to support themselves following a divorce. By providing this structure, the law prevents a person from becoming financially destitute as a result of a divorce.
If you are looking for a divorce attorney in my area, a matrimonial lawyer to consult with, or want to learn more about what Indian law says regarding maintenance, then this comprehensive guide will give you a good understanding of your legal rights in simple, clear language.
What Does “Maintenance” Mean in Indian Law?
One spouse is providing financial support to the other based on a dependent relationship. Maintenance can be provided monthly, once or in the form of property or through payment of money (through alimony). The primary purpose of maintenance is to:
- Enable the dependent parent/spouse to have the ability to live with dignity
- Provide the dependent spouse with the ability to maintain a level of lifestyle (standard of living) while married
- Facilitate education of children and provide for their daily needs
- Prevent the dependent parent/spouse from going through financial hardship once they separate from their spouse
Maintenance may also include, but is not limited to:
- Monthly payment or allowance
- One-time financial settlement (alimony)
- Monetary assistance towards the education of children
- Monetary assistance towards living expenses and medical expenses
- To cover expenses associated with renting and maintaining a household
A court may award maintenance prior to the dissolution of a marriage if it determines there is a pressing need for financial assistance from a dependent spouse.
Who Can Claim Maintenance?
It is a common misconception that only wives have the right to seek maintenance; however, this belief is inaccurate. According to Indian law, the following individuals have the right to maintenance:
Divorced Wife
A divorced woman has the right to seek maintenance from her ex-husband if she cannot support herself following a divorce.
Divorced Husband
Although this situation is less common than the opposite scenario, a husband can claim maintenance from his ex-wife, provided that he is an individual with a physical or mental disability, or who otherwise does not have the ability to earn a living.
Children
Any minor child as well as an adult child who has a physical or mental disability, or who is still in school, may seek support from his or her parents.
Parents
A parent who is unable to support himself or herself may seek support from his or her working children under Indian law.
Therefore, maintenance is available to anyone, not just women. The courts will evaluate all of these considerations to determine what will best meet the needs of each party in an equitable manner.
Two Types of Maintenance
There are basically two categories of maintenance under Indian law.
Interim Maintenance
Interim maintenance refers to the financial help that is given during the process of obtaining a divorce or maintenance order until the order is issued. Interim maintenance serves to provide the dependent spouse with assistance with day-to-day financial expenses like rent, groceries, utility bills, and necessary living expenses until a final decision is made on their divorce or maintenance case.
Permanent Maintenance
Permanent maintenance is awarded after the court has issued a divorce order and is paid to the dependent spouse either monthly or as a one-time payment. The recipient of permanent maintenance must comply with the court’s order. If they do not, the court may take appropriate action against them.
How Does the Court Decide the Maintenance Amount?
There are no calculators or fixed equations used by the court. The court considers many different factors and then makes a decision based on what is determined to be a reasonable and achievable amount. Some of these factors include:
- Income of both spouses;
- Lifestyle during the marriage;
- Age and health;
- Educational attainment;
- Time needed for dependent spouse to gain independence (financially);
- Responsibilities to children; and
- Expected standard of living.
If one spouse earns substantially more than the other spouse, the spouse who earns less can be directed by the court to make a financial contribution. If both spouses earn equally, then either the maintenance will be lowered by the court or the request for maintenance will be denied.
When Can Maintenance Be Denied?
There are certain circumstances which would warrant the denial of spousal support, these include:
- The recipient has sufficient income from their own employment
- The recipient has sufficient education and/or skills to be able to obtain employment
- The recipient lives in an adulterous relationship
- The recipient left the marriage without just cause
- The recipient has left the marriage and does not have sufficient reason(s) to not return to their spouse
Nevertheless, courts will still make every effort to provide support for all legitimate applicants who require financial assistance.
Maintenance for Children
The Court regards children as the Priority One of their Custodial Rights – Anything and Everything to Support a Child. Examples of Maintenance for Children include:
- School fees
- Tuition costs
- Books and Stationery
- Clothes and Shoes
- Medical bills for a Child
- Additional Services When Disability Exists
The Court will order who pays for what based on the financial condition of each parent, therefore, while the mother may have custody of the child, the father could be ordered to pay much more than her because of his wages.
How Long Does Maintenance Continue?
No two situations associated with maintenance will fit the same formula. Maintenance may be continued:
- Until the dependent spouse gets remarried.
- Until they achieve financial independence.
- Until the child reaches 18 years of age.
- After the child turns 18 if the adult child is disabled or dependent.
- For the life of the dependent if warranted by the circumstances.
Maintenance is not automatically permanent; both parties may petition the court for a modification of the maintenance amount based on their current financial conditions.
How to Apply for Maintenance in India
Maintenance can be claimed through various means legally. You may file for maintenance under the following laws:
- Section 125 CrPC
- Personal Marriage Laws
- Domestic Violence Act (if you have been abused)
- Hindu Marriage Act
- Special Marriage Act
Consult a divorce lawyer or matrimonial lawyer in your area and they will assist you with your particular situation. There are many differences in the types of documents that need to be submitted and the sections that may be applied to each case, therefore it is important to seek out legal counsel to expedite the process of obtaining maintenance.
Importance of Hiring a Lawyer
In maintenance cases, the requirements include financial disclosure, legal arguments, proving income, and providing relevant documentation. A significant number of people struggle in maintenance cases because they do not understand what is required for submission to a court in order to successfully defend themselves. A skilled divorce attorney can provide assistance in:
- Filing & submitting accurate documents
- Presenting accurate records of income
- Providing verification of need
- Obtaining expedited hearings
- Preventing errors in the course of the case
For these reasons, many people who find themselves in situations of needing to file for divorce or maintenance will eventually contact an experienced divorce lawyer or family law attorney in their area to help them with this process. A family law attorney will protect a client’s rights and ensure that they receive an appropriate amount of financial support.
Key Trends in Indian Maintenance Cases
Over the past decade, Indian courts have had a significant change in views on maintenance. The following are a few examples:
- Courts rely heavily on documentary evidence like invoices, bank statements and proof of payment.
- An individual’s education and past work experience are considered while calculating maintenance, and courts may discourage lifelong financial dependency.
- Child welfare is the top priority, and spousal support decisions are made while keeping child support needs in mind.
- Domestic work is recognized as having real economic value, and courts increasingly acknowledge the contribution of managing a household.
When Should Someone File for Maintenance?
Applicable situations where a spouse may apply for maintenance, include:
- If a spouse cannot afford their most basic daily survival needs
- If a spouse has no dependable source of income
- If a spouse was a financial dependent of the marriage
- If a spouse has responsibility for childcare
- If a spouse’s spouse will not provide financial assistance voluntarily
Even though there has not been a divorce petition filed yet, a spouse can request interim spousal maintenance during the period of separation.
Final words
While divorce terminates a marriage, it does not mean that either party will suffer financial hardship. India has maintenance laws in place to ensure that the dependent spouse, children of both parents, and other dependents receive enough maintenance to allow them to live with dignity and stability following the end of a marriage.
In order to either defend or seek maintenance for yourself, the best place to start is to identify your legal rights. If you feel confused or uncertain about how the courts work with respect to maintenance, it is advisable to consult a matrimonial attorney, family lawyer, or divorce solicitor in India who is familiar with the dynamics of your individual case.
Maintenance is not a contest. It is a means of achieving equitable, necessary, and secure means of sustenance. By knowing your rights, you will be empowered to make beneficial decisions and rebuild your future with confidence and personal dignity.