Alimony in Case of Mutual Divorce in India

Alimony, also known as spousal support, is a legal provision designed to provide financial assistance to a spouse who may be economically disadvantaged after the dissolution of marriage. It serves as a crucial lifeline, ensuring a fair and equitable transition to independent living. 

Join us as we delve deeper into the world of alimony, where financial stability meets the intricate dynamics of divorce, bringing both challenges and opportunities for a new beginning.          

Is Alimony Mandatory in Mutual Divorce?

if both parties in a divorce agreement mutually agree that alimony is not necessary, and both are financially capable of supporting themselves, the court may not mandate alimony payment. In a mutual divorce procedure, the couple agrees to dissolve their marriage amicably and typically works out a settlement agreement that addresses various aspects of the separation, including the division of assets, child custody, child support, spousal support, and alimony. The need for alimony and the amount to be paid are determined based on various factors, including the financial situation and earning capacity of both spouses.

During the negotiation process, the spouses have the opportunity to discuss whether alimony will be a part of their settlement. If both parties agree on the need for and terms of spousal support, they can include it in their settlement agreement. 

The agreement will then be presented to the court for approval. As long as the terms are fair and reasonable, the court usually accepts the agreement and incorporates it into the final divorce decree.

However, if the divorcing spouses cannot reach a mutual agreement on alimony, the court may intervene and decide based on various factors, such as the length of the marriage, the financial resources and earning capacities of each spouse, the standard of living during the marriage, and any other relevant circumstances. 

In such cases, the court may or may not award alimony depending on the specific circumstances and the applicable laws.                     

Legal Provisions for Alimony in Mutual Consent Divorce

The Supreme Court has established a guideline for divorce alimony, stating that it should be set at 25% of the husband's net income. Furthermore, the Court has ruled that the wife should be entitled to receive 25% of the husband's net income to maintain a dignified lifestyle. However, there are no standardized amounts for lump sum payments, but they often range between one-fifth and one-third of the partner's total earnings.

In the case of Gaurav Sondhi versus Diya Sondhi, the Court has outlined a method that Family Courts should follow when determining interim maintenance or maintenance payments. The following is the prescribed method for awarding maintenance:

• The husband is required to make monthly payments to his wife by the 10th of each month. However, if the husband faces difficulties in making the payment by this date, the Court may consider alternative payment dates after considering the facts and circumstances of the case.
• If the wife has a bank account, the husband should make the payment directly into her account by the 10th of each month.
• If it is not feasible to make the payment directly to the wife or child, the husband may make the payment through his counsel. Alternatively, the husband may deposit a draft or crossed cheque in the wife's name in the Court register.
• The Court may excuse a delay in the first payment, but if the second payment is missed without a valid excuse, a penalty of up to 25% of the monthly maintenance may be imposed.
• In the case of default in the third and fourth months, the penalty may increase to 50% of the monthly maintenance fee.
• The Court's responsibility is to ensure that the maintenance order is relevant and that the wife receives the necessary support.
• If interim maintenance is being paid and litigation fees have been settled on behalf of the wife, a written statement should be issued within a reasonable period.
• When imposing a penalty for nonpayment, the Court must consider the nature of the husband's work. Husbands with irregular working hours are more likely to face difficulties in meeting their payment obligations.

Factors Considered in Determining Alimony in Mutual Consent Divorce

The duration and amount of alimony payments are determined by the following factors:

• The length of the marriage is usually the deciding factor for the amount and duration of alimony. Marriages exceeding ten years may qualify for permanent alimony.
• The age of the husband is considered when determining alimony. If the court believes that a young alimony recipient has the potential to achieve financial stability through future professional success, the duration of alimony payments may be shorter.
• Alimony is often used to address the financial disparities between spouses. The higher-earning spouse is required to pay significant alimony to balance their financial situation.
• If one spouse is in poor health, the other spouse may be obligated to provide substantial alimony to cover medical expenses and ensure their well-being.
• In cases where the wife is unable to support herself due to physical impairment or lack of education, the husband is obligated to provide a predetermined monthly or quarterly amount to provide her with the means to lead a respectable life.
• If the wife is not currently employed but possesses high education and qualifications, the court may order her to seek employment and specify a maintenance amount to support her during her job search.
• As per Section 125(4) of THE CODE OF CRIMINAL PROCEDURE, 1973, if the ex-wife enters into a relationship with another man, regardless of her intention to marry him, she forfeits her legal entitlement to alimony.             

Process of Calculating Alimony (In Mutual Divorce)        

The calculation of alimony does not follow a fixed formula or strict guidelines. It can be paid periodically, such as every month, or as a lump sum payment.

Although the following calculation can be used to estimate the alimony amount, it is not entirely accurate.

Depending on the circumstances, you can determine the monthly alimony using either your spouse's or your own salary. You will need to calculate 20% and 25% of this salary because the monthly alimony amount is likely to fall within this range.

To calculate the aggregate alimony, you should know the total income of either yourself or your partner, as applicable.

You need to find 50% and one-fifth of this total income. For instance, if your gross income is 100X, the lump sum payment for alimony could range from 33X to 20X.           

Case Studies and Landmark Judgement        

1. Guru Vikas Sharma v/s Shweta, AIR 2014 Rajasthan, 190

In this case, the court examined the statements made by the appellant (Guru Vikas Sharma) and the respondent (Shweta) before the Family Court. It was clear that both the husband and wife wanted to annul their marriage, and they had been living separately since July 13, 2011. 

The fact that the respondent (Shweta) did not appear in court despite receiving notice of the proceedings further confirmed their desire for an annulment.

To grant a divorce by mutual consent before the usual waiting period of six months, the Supreme Court relied on its special power under Article 142 of the Constitution of India. This power is unique to the Supreme Court and is not available to any other court, including the court in this particular case.

In the case of Anil Kumar Jain v. Maya Jain, the Supreme Court had already clarified that even High Courts do not have the authority to use the doctrine of irretrievable breakdown of marriage, as they do not possess the same powers as the Supreme Court under Article 142 of the Constitution of India.

2. In Re Mittal Ramesh Panchal, AIR 2014 Bombay 80

In the case of Ramesh Panchal, the court observed that the appellants (the parties involved) have no other option but to seek the dissolution of their marriage through mutual consent in accordance with the stipulations outlined in Section 13B of the Hindu Marriage Act.

Since their marriage is still legally valid, the Family Court can consider their petition for divorce under Section 13B.

There is no legal obstacle in accepting the petition for divorce by mutual consent filed by the appellants. Both parties genuinely believed that their marriage had ended when they executed a Deed of Divorce and remarried. 

It would serve no purpose to force them to wait for six months to obtain a divorce decree. 

Given that the appellants have remarried, there is no possibility of reconciliation or reunion between them. The lawmakers did not anticipate such a situation when enacting Section 13B. In such cases, the court can use its inherent powers under Section 151 of the Civil Procedure Code to ensure justice is served.

3. Mandeep Kaur Bajwa versus Chetanjeet Singh Randhawa (AIR 2015, Haryana and Punjab 160)

In the case of Mandeep Kaur Bajwa v/s Chetanjeet Singh Randhawa, the court noted that the parties involved in the marriage had difficulty adjusting to each other's different personalities, which strained their relationship. 

They only lived together as husband and wife for around three months before the appellant (Mandeep Kaur Bajwa) went to Canada. Due to the distance, it was not feasible for her to visit India frequently.

Both parties are of marriageable age, and they have reached a mutual settlement in their case.

Considering the provisions of Section 14(1) of the Hindu Marriage Act, in the circumstances of this particular case, it is appropriate to overlook the usual requirement of waiting for one year before filing for divorce. 

The petition under Section 13-B of the Act was filed on August 12, 2013, and the statements of both parties were recorded during the first motion. 

The statements of both parties during the second motion, as required by Section 13(2) of the Act, were recorded on February 17, 2014. Therefore, the court grants the parties a divorce decree by mutual consent under Section 13B of the Hindu Marriage Act.

4. Shilpa Chaudhary v/s Principle Judge, AIR 2016 Allahabad 122

In the case of Shilpa Chaudhary v/s Principle Judge, the court emphasized the importance of delivering justice quickly and with minimal inconvenience to the parties involved and the witnesses. 

If there is an option to record evidence through video-conferencing, it should be used to avoid delays and inconvenience. 

It is not necessary for the witness to physically come to the court and testify in person; other means of recording their testimony, like video-conferencing, can be utilized to ensure a smooth and efficient legal process.

Conclusion 

Alimony in mutual divorce is a complex and sensitive matter that requires careful consideration. It is meant to ensure financial stability for the spouse in need and maintain a fair standard of living. 

While it can help mitigate the financial impact of divorce, it is important to approach alimony with fairness and balance. 

Open communication, transparency, and empathy are crucial in reaching a mutually agreeable settlement. Both parties should strive for a resolution that respects the contributions and sacrifices made during the marriage, allowing for a smooth transition into new lives while minimizing emotional and financial strain.

If you need guidance or legal advice regarding alimony in a mutual divorce, it is highly recommended to consult with a divorce lawyer. They can provide expert assistance in navigating the complexities of alimony and ensure that your rights and interests are protected.

About The Author: 

Adv. Shivam Laturiya is a skilled advocate practicing in High Court, City Civil, DRT, NCLT, Small Causes courts, Mumbai with an experience of +7 years with expertise majorly in Property, Banking and Family Disputes, Matrimonial matters. He excels at litigation and legal advice in Civil matters.