Legal

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This Blog is written by Lakshay Jain from Jagan Institute of Management Studies (JIMS), Rohini. Edited by Lisa Coutinho.

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INTRODUCTION

Relationship is a very precious and sacred thing considered among Indians. These relations are either live-in or marital relations. The “married relations” are considered to be the most sacred relation in India and “live-in-relations” are not given that much priority and there is no law tying them together and consequently, either of the partners can walk out of the relationship, as and when, they will to do so. But these relationships don’t go in the same way they are expected due to personal reasons of partners and make their life unbearable. In “marital relations” the partners can have a divorce which provides a remedy to the individual in these situations. There is always a monetary remedy which is provided to the partner who is financially low by the financially strong one. This compensation is compulsory by law in the majority of countries. Also, in ‘live-in-relationship’ The right to maintenance is decided by the court in accordance with the Domestic Violence Act, 2005 and the individual facts of the case.

WHAT IS ALIMONY?

The word Alimony is derived from the Latin word ‘Alimonia’ which means sustenance. It is also referred to as spousal support or maintenance. The main purpose of providing Alimony is to settle the unfair economic status of the partners that may arise from divorce. It is to improve the financial situation of the partners.

For example, there might be a situation where one of the partners had to stay at home. In this situation, the one partner who don’t earns need some incentive for financial support. In order to settle such effect of divorce, Alimony is awarded.

ALIMONY LAWS IN INDIA

This personal law in India governs the maintenance right of women of different religions. These personal laws deal with marriage, divorce, and maintenance, for which there are various provisions for people who can claim the same.

The different laws for the same are:

Alimony under Hindu Law

In Hinduism, it is considered the duty of the husband to take care of his wife.

Under section 24 of the Hindu Marriage Act, 1955, both the wife and the husband are considered to claim the maintenance from their spouse. This section does not differentiate between male or female. The maintenance depends upon the need and according to the situation of the respective spouse.

Alimony under Muslim Law

In this situation first, the parties have to decide which law should be applied to claim Alimony. In Muslim, women are the one who is given the right to Alimony. The rights remain neutral whether the girl is financially strong and the husband is not. For the Muslim women, The Muslim Women (Protection of Rights on Divorce) Act, 1986 lays down the provisions for the maintenance/alimony.

Alimony under Christian Law

The Christian law deals with the maintenance of wife under Section 36, Section 37 and Section 38 of the Indian Divorce Act, 1869. Section 36 deals with the petition for expenses and alimony pending the suit. Section 37 of the Indian Divorce Act deals with the matter of permanent alimony. In every case, the court may order the husband to pay a weekly or monthly sum for her financial support which the court may seem reasonable. Section 38 of the same Act deals with the rules regarding the payment of alimony. It may be given to the wife herself or any trustee on her behalf.

Alimony under Parsi Law

The maintenance of wife is managed under the Parsi Management and Divorce Act,1988. Section 40 of the Parsi Management and Divorce act, deals with the permanent alimony and maintenance of the wife. It authorizes any court to order the defendant to pay a periodical sum for a term not exceeding that of the plaintiff’s own life.

IMPACT

In the Indian society, women are often provided with the Alimony whether the wife is working or not. Alimony rights are based on the existence that the one partner who is financially more stable will compensate the weaker partner for all the comfort that is taken away. But in the recent judgements, it is mentioned that the wife will get the Alimony whether the wife is working or not. It is based on the grounds that it is the duty of the husband to take care of the wife. Also, a jobless husband was ordered to pay alimony to wife having a stable income. In the case of “Streedhan”, the wife has exclusive rights over the same and the assets she received from her family or the husband’s family are to remain hers.

HOW IS THE QUANTUM OF ALIMONY DECIDED?

The maintenance of the partners is decided by evaluating some parameters. These parameters measure everything of spouse financial situation, net worth and investment as well as their financial needs and investment. There is not a fixed formula for calculating the alimony amount, although it is the one-third of the spouse’s income to pay the amount. But in the recent Supreme Court judgement, 25% of the husband’s net salary was taken as a benchmark to constitute a just and proper amount of alimony.

Certain factors are taken into account that influence the alimony amount as well as duration during which it needs to be paid. They are as follows:-

1) Duration of marriage– marriages that lasted for more than 10 years are entitled to a lifetime alimony.

2) Age of spouse– A young receipt may get it for a shorter duration of time, keeping in mind their prospective career excellence and potential to become financially sound.

3) To equalize the economic condition of both spouses– The higher-earning spouse is entitled to pay heavy amount whereas a lower-earning spouse may be asked to pay an able amount for alimony.

4) Enjoyment of a successful career– Such a spouse may be subject to pay a higher amount of alimony.

5) The health of spouse– If the spouse claiming for alimony is in poor health, the other spouse will be subjected to pay high alimony to ensure proper well-being and medication for the spouse.

6) Child custody– The spouse who maintains child custody will be entitled to receive a greater amount for the expenditure incurred on a child’s upbringing and education.

7) Liabilities of the husband (like taking care of his wholly dependent parents) and flourishing career of the wife (earning sufficient amount comfortably) will also be considered.

MODE OF PAYMENT OF ALIMONY

The alimony can be given through two modes of payment, either as a lump sum, or a regular monthly payment. Usually, the former option is preferred. This is because lump-sum payment gives certainty to the partner receiving it, as monthly payment may stop if the giving spouse loses his or her source of income or due to reasons like death. Also, lump sum payment is not subject to taxes as it is considered a capital receipt, whereas monthly payment is subject to taxes for the spouse who gets it.

STATUTORY PROVISION

Not every spouse is required to pay alimony, which is also known as maintenance. Divorce alimony is granted mostly in cases where a spouse is not able to support herself or himself without any financial help from their former partner. This alimony can be either temporary or permanent. It is temporary when the spouse getting alimony is still young and requires some time to start earning well on their own. It may be permanent if the spouse has no probability of becoming financially sound owing to their age or disability or if the partner is not receiving the same enjoyment and comfort during their married life. If partner claiming the alimony was not the financial provider, and wholly or partly depended upon their spouse, then the financially stronger partner will be asked to pay the alimony. The appropriate amount of alimony and the duration vary based on the court the case is in.

HOW LITIGANTS MISUSE THE PROVISION OF ALIMONY AND WHAT CAN BE DONE?

There have been several cases where the petitioner has misused the provision of alimony for their financial gain without any reasonable explanation. Both, male as well as female, has the potential to earn and to try to earn their own livelihood. This has been more forced on men to get their hard-earned money in comparison to women, and this is due to the gender roles that have been determined by the society. Women are seen as potential child-bearers who need to take care of their families, and can sustain without a job. Even when a woman is efficient enough and young enough with potential, she still finds solace in getting maintenance from her husband, and this should be seen as greed. In a recent case, a highly qualified woman asked for alimony from her husband and quit her job for the same. The court observed that she cannot sit idle, expecting to get the alimony from her husband. There is also another case from such numerous cases where a woman was denied alimony by a court in Pune. She was well educated and had been earning adequate money in a job before marriage.

Therefore, Alimony comes to those who are not willing to make their financial expenses easily after divorce. The courts provide alimony to the spouse who is either financially weaker or totally dependent on one partner.

WHAT IS PALIMONY?

The expression `palimony’ was uttered in the USA by California Superior Court in 1976 in the famous case of Marvin v. Marvin. ‘Palimony’ means a grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying him, and is then deserted by him. This case was related to the famous film actor Lee Marvin, with whom a lady Michelle lived for many years without marrying him, and was then deserted by him and she claimed palimony. In India, it was only in the year 2010 when the Supreme Court of India, for the very first time discussed the meaning of the word ‘palimony’ in the case of Chanmuniya v. Virendra Kumar Singh Kushwaha (2011) 1 SCC 141 and D. Velusamy v. D. Patchaiammal (2010) 10 SCC 469 and came to the conclusion that palimony could be granted in the case of live-in relationship. The court also laid down certain factors to determine whether the relationship is of the nature of marriage or not and thus, applicable for palimony or not. These factors are:

• The couple must be eligible to marry;

• They must come out in society as a couple akin to a married couple;

• They must have moved in together with free consent;

• They must have spent a significant period of time together;

• They must have stayed together in a “shared household”, as defined under Section 2(s) of the Protection of Women from Domestic Act.

In India, alimony is granted under various other provisions like Section 24 of the Hindu Marriage Act, Section 125 of Cr.P.C, Domestic Violence Act 2005 and Section 37 of the Special Marriage Act 1954. But the bone of contention is that no specific provision has been made under any statute of the country regarding ‘palimony’. Therefore, it has become a very debatable topic, whether palimony can be put on par with the provision of alimony or not. And our paper also examines whether palimony granted in violation of Article 21 or not in the case of live-in relationship.

MAJOR DIFFERENCE

BASIS OF DIFFERENCE	ALIMONY	PALIMONY
Meaning	Alimony is awarded in the case where there is marriage, and they want a divorce	Palimony is awarded in the case where there is a live-in-relationship, and the partners are not legally married.
Legal provision	Alimony is governed as per various personal laws that are prevalent in India, namely Hindu personal laws, Muslim personal laws, Christian personal laws, Parsi personal laws along with the circumstances of the case.	There is no specific law that deals with Palimony, it is the Domestic Violence Act 2005 and the facts of the case on the basis of which the cases are dealt with.
Main Requirement	For claiming alimony, the couple requires to be legally married, living together for a considerable time.	For claiming palimony, the couple need not be legally married, rather the couple needs to be ‘in a relationship in the nature of marriage’.

CASE LAWS

Palimony

Tulsa & Ors vs. Durghatiya & Ors, (2008) 4 SCC 520

The Supreme Court provided legal status to the children born from a live-in relationship. It was held that one of the crucial pre-conditions for a child born from live-in relationship to not be treated as illegitimate are that the parents must have lived under one roof and co-habited for a considerably long time for society to recognize them as husband and wife, and it must not be a “walk in and walk out” relationship. Therefore, the court also granted the right to property to a child born out of a live-in relationship.

Khushboo vs. Kanniammal & Anr, (2010) 5 SC 600

The Supreme Court, in this case, dropped all the charges against the petitioner who was a south Indian actress. The petitioner was charged under Section 499 of the IPC. and it was also claimed that the petitioner endorsed pre-marital sex and live-in relationships. The court held that living together is not illegal in the eyes of law, even if it is considered immoral in the eyes of the conservative Indian society. The court stated that living together is a right to life, and therefore not ‘illegal’.

Alimony

Mohd. Ahmed Khan v. Shah Bano Begum 1985 AIR 945

In this case, the Supreme Court held that Shah Bano Begum was provided with the Alimony of 500 Rs. Per month from the part of the salary of Mohd. Ahmed Khan. The then CJI, Y.V.Chandrachud upheld the decision of the High Court that gave orders for maintenance.

ANALYSIS

Alimony and Palimony have their known application and importance. Whereas Alimony is more beneficial in the sense that in case of Palimony, a couple staying together for more than 10 years have a chance of getting lifetime Alimony, however, such is not a case with Palimony. But this does not make Palimony less important for a fact that Palimony recognises the rights of an unmarried couple. Alimony is awarded in the case of a legally married couple, whereas Palimony is awarded in the case of an unmarried couple, cohabitated for a considerable time. Alimony is a recognised legal term which is dealt with under various personal laws. However, Palimony is not a legal term. It is not dealt with under any specific laws however, the cases concerning Palimony are dealt with as per the Domestic Violence Act, 2005.

CONCLUSION

While Alimony is a form of relief that is being extended to a spouse by another spouse during a divorce, Palimony is similar to it with the only difference that the couple included in palimony is not a legally married couple, rather they are people who lived together as a married couple for a considerable time before getting separated. Both alimony and palimony are given with the same purpose of improving the financial conditions of the financially weaker partner, which might have deteriorated as a result of divorce or separation.