Introduction
Maintenance, commonly referred to as alimony, constitutes
financial support that one spouse may be obligated to provide to the other
following the dissolution of marriage. Its purpose is to enable the recipient
spouse to sustain a standard of living comparable to that which was established
during the marriage. Maintenance may be classified as either temporary or
permanent, contingent upon various considerations.
Types of Maintenance:
1.
Fixed Term Maintenance: This type of maintenance is
disbursed for a predetermined duration, concluding upon the expiration of that
term.
2.
Indefinite Maintenance: This form of maintenance
lacks a specified termination date; however, it may be subject to modification
or termination under certain circumstances.
3.
Reviewable Maintenance: This maintenance is awarded
for a defined period, with provisions for periodic review to evaluate the
necessity for extension, often applicable in instances where one spouse is
engaged in educational or vocational training.
Divorce Among Hindus in
India
1.
Divorce by Mutual Consent: Under the provisions of
Section
10A of the Divorce Act, 1869,
and Section 13B of the Hindu Marriage Act, 1955, as well as Section 28 of the
Special Marriage Act, 1954, a divorce may be granted when both parties mutually
consent to the dissolution of their marriage. The parties must demonstrate that
they have been living separately for a period of at least one year prior to the
initiation of divorce proceedings. This form of divorce typically facilitates
the resolution of issues related to maintenance, child custody, and property
rights with greater ease, resulting in reduced emotional distress and financial
burden for both parties.
To initiate the process, a
petition must be filed in the appropriate court by the respective legal
representatives of the parties involved. Upon review of the submitted
documentation, the court will proceed with the case. A mandatory waiting period
of six months is imposed to allow for the possibility of reconciliation. Should
the parties still wish to proceed with the divorce after this period, they must
file their request within 18 months from the date of the initial
petition.
2.
Divorce Without Mutual Consent: In instances where one party
seeks a divorce unilaterally, the petitioner must present valid grounds for the
request, as stipulated under Section 13 of the Hindu Marriage Act, 1955. A
decree of divorce cannot be granted without substantiating reasonable grounds.
The grounds for divorce include, but are not limited to, the following:
● Cruelty: This encompasses both
physical and mental harm inflicted by one spouse upon the other, whether
intentional or otherwise. A reasonable apprehension of injury due to the
conduct of the other party constitutes a valid ground for divorce.
● Adultery: This ground applies when one
spouse engages in extramarital relations. While the husband may be subject to
criminal charges for such conduct, the wife cannot be prosecuted for adultery.
Nonetheless, it remains a valid ground for divorce for both parties.
● Desertion: This occurs when one spouse
abandons the other without providing a valid reason.
● Conversion: A party’s conversion from one
religion to another may serve as a ground for divorce.
● Mental Disorder: If a spouse is unable to
fulfill the normal duties and responsibilities associated with marriage due to
a mental disorder, this may constitute a valid ground for divorce.
● Presumption of Death: If one spouse has been missing
for a period exceeding seven years, and the other spouse has not received any
communication from them, the latter may file a petition for divorce based on
the presumption of death.
● Communicable Disease: If one spouse is afflicted
with a communicable disease, the other spouse may seek a decree of divorce on
this basis.
In all cases, the petitioner must provide sufficient
evidence to substantiate the claims made in support of the divorce
petition.
Divorce Among Muslims in
India
In India, a Muslim individual may seek divorce through
two primary processes:
Judicial Process under The
Dissolution of Muslim Marriages Act, 1939 Section 2 of the Act enumerates the
grounds upon which a Muslim woman may petition for divorce, including but not
limited to:
● The husband has been absent or uncommunicative for a
period exceeding four years.
● The husband has failed to provide maintenance to the wife
for a duration of two years or more.
● The husband has been incarcerated for a minimum of seven
years.
● The husband has neglected his marital obligations for a
period of three years without justifiable cause.
● The husband was afflicted with a venereal disease, was
impotent, or was of unsound mind at the time of marriage.
● The husband was married prior to the age of 15 or has
subjected his wife to cruelty.
Extra-Judicial Process:
1.
Divorce Initiated by the
Husband
●Talaq-e-Sunnat:
This encompasses two forms:
●Talaq-i-Ahsan:
The husband pronounces talaq once during the tuhr (the period between two
menstrual cycles), which may be revoked during the iddat period.
●Talaq-i-Hasan:
The husband pronounces talaq three times during three successive tuhrs, with no
sexual intercourse occurring during this interval.
●Ila: The
husband takes an oath to abstain from sexual relations for four months, after
which the marriage is dissolved.
●Zihar:
The husband likens his wife to a prohibited female relative, thereby invoking
divorce.
2.
Divorce Initiated by the Wife
● Talaq-i-Tafweez:
This delegated divorce allows the husband to confer the right to divorce upon
the wife, either temporarily or permanently.
●Lian: If
the wife is falsely accused of adultery, she is entitled to seek divorce.
3.
Divorce by Mutual Consent
●Khula:
The wife consents to relinquish her rights in exchange for consideration to be
freed from the marriage, constituting a mutual divorce.
●Mubarat:
Both parties express a desire to dissolve the marriage, and upon acceptance of
the proposal by either party, the marriage is irrevocably dissolved.
●Triple Talaq or Talaq-e-Biddat: This form of divorce, wherein
the husband pronounces talaq thrice in one sitting, was declared
unconstitutional by the Supreme Court of India in the case of Shayara Bano v.
Union of India, rendering it invalid.
4.
Divorce Among Christians in
India
Under Section 10A of the Indian
Divorce Act, 1869, a Christian may obtain a decree of divorce through two
avenues:
1.
Mutual Divorce: When both spouses mutually agree
to divorce after cohabitation for a minimum of two years, they may petition the
court for dissolution of marriage.
2.
Contested Divorce: Either spouse may approach
the court for a divorce decree on grounds including, but not limited to,
adultery, desertion without reasonable cause, absence for seven years or more
(presumption of death), renunciation of faith, refusal to consummate the
marriage, unsound mind, incurable disease for over two years, cruelty, or acts
of sodomy, bestiality, or other forms of cruelty.
5.
Divorce Among Parsis in
India
Divorce among Parsis is governed by the Parsi Marriage
and Divorce Act, 1936:
●Section 30:
Provides for nullity of marriage if Consummation is not possible.
●Section 31:
Allows for dissolution of marriage if one spouse has been missing or
uncommunicative for seven years or more.
●Section 32:
Enumerates grounds for obtaining a decree of nullity, including:
a.
Willful refusal to consummate the marriage.
b.
Unsound mind of one spouse at the time of marriage, unbeknownst
to the other.
c.
Pregnancy of the wife at the time of marriage, with the
husband being unaware, allowing for divorce within two years of marriage
without consummation.
d.
Grounds such as cruelty, adultery, forced prostitution,
rape, unnatural sexual acts, venereal disease, willful harm, and bigamy, which
permit divorce within two years.
e.
Desertion or change of religion by one spouse.
f.
Imprisonment of one spouse for seven years, with at least
one year having elapsed.
● Section 32B: Provides for mutual divorce, contingent upon
the absence of coercion or fraud in obtaining consent.
Maintenance Laws in India
To safeguard the interests of the wife post-divorce,
Indian courts provide for maintenance, ensuring the wife is restored to a
financial position akin to that which would have prevailed had the marriage not
been dissolved.
1.
Maintenance under Hindu
Law:
Governed by the Hindu
Adoption and Maintenance Act, 1956, and the Hindu Marriage Act, 1955, a woman
is entitled to claim maintenance. The court may grant maintenance to the
petitioner if it determines that either spouse lacks a source of income.
2.
Maintenance under Muslim
Law:
Under Muslim law, maintenance (Nafaqa) is provided to the
wife during the iddat period. If the wife is pregnant during this period, she
may claim maintenance for two year post-birth. If a child exists at the time of
divorce, maintenance is claimable until the wife remarries or the child becomes
independent. The Muslim Women (Protection of Rights on Divorce) Act, 1986
governs these provisions.
3.
Maintenance under Christian
Law:
The Indian Divorce Act stipulates that a woman may be
awarded maintenance, not exceeding one-fifth of the husband’s income,
contingent upon her remaining unmarried and chaste. The maintenance amount is
determined based on various factors, including the wife’s income, the husband’s
property, and his income.
4.
Maintenance under Parsi
Law:
Similar to Christian law, Parsi law allows for
maintenance claims, with the distinction that the husband may also seek
maintenance. However, maintenance ceases upon the death of the payer.
5.
Maintenance under the Special
Marriage Act, 1954:
This Act permits the wife to claim maintenance from the
husband based on his income and property, her income, their conduct, and other
relevant circumstances. The court that issues the decree retains the authority
to modify it in response to changes in circumstances.
Factors Influencing Maintenance Determination:
The court shall evaluate multiple factors in determining
the appropriateness and amount of maintenance, including but not limited
to:
● The income of each party.
● The financial needs of each party.
● The earning capacity of each party.
● The duration of the marriage.
● The standard of living established during the marriage.
● The physical and mental health of each party.
Termination of Maintenance:
Maintenance obligations shall cease upon the death of
either party. Additionally, maintenance will terminate if the recipient spouse
remarries or enters into a cohabit relationship with another individual on a
continuous basis. The statutory duration of maintenance may also dictate its
termination based on the length of the marriage.
CONCLUSION
India, as a secular nation, accommodates individuals from
various religious backgrounds, prioritizing their personal laws in personal
matters. However, the infringement of constitutional rights is not tolerated,
as demonstrated by the Supreme Court’s ruling against triple talaq, which was
found to be Discriminatory against women. Maintenance is often viewed as a
preferential entitlement for women, yet it is crucial to protect their dignity
and needs, with amounts determined based on the financial circumstances of both
parties. Courts may adjust maintenance awards considering the wife’s situation,
and certain laws also allow for Maintenance to be granted to husbands in
specific cases. While mutual divorce tends to be less contentious, contested
divorce can lead to complex issues, including child custody and maintenance
disputes.
