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Landmark Judgment: Supreme Court sets alimony benchmark


By John B Monteiro

Mangaluru, Apr 21: According to Delhi-dated report on April 20, the Supreme Court (SC) has set a benchmark for maintenance to be paid by a husband to his estranged wife, stating that 25% of his net salary might constitute a "just and proper" amount as alimony.

A bench of Justices R Banumathi and M M Santanagoudar made the observation while directing a resident of West Bengal's Hoogly, earning Rs 95,527 a month, to set aside Rs 20,000 as maintenance for his former wife and their son, turning down the man's plea that the amount was excessive. The court said the amount of permanent alimony must be sufficient to ensure that a woman lived with dignity after separating from her husband.


Its order came on the man's plea challenging a Calcutta high court order directing him to pay her Rs 23,000 per month. Though the apex court said there was nothing amiss in the high court order, in an apparent case of justice tempered with compassion, it reduced the amount by Rs 3,000 on the ground that the man had remarried and hence needed to provide for his new family.

"Twenty-five per cent of the husband's net salary would be just and proper to be awarded as maintenance to the (former) wife. The amount of permanent alimony awarded to her must be befitting the status of the parties and the capacity of the spouse to pay maintenance, which is always dependant on the factual situation of the case... and the court would be justified in molding the claim for maintenance passed on various factors," the bench said.

While stating that the high court was justified in enhancing the maintenance on the basis of the husband's salary, the SC bench noted: "However, since the appellant has also got married a second time and has a child from the second marriage, we think it proper to reduce the amount of maintenance of Rs 23,000 to Rs 20,000 per month as maintenance to his (former) wife and son," the court said.


The couple has been fighting a legal battle over maintenance since 2003 when the district judge fixed the amount at Rs 4,500. The high court, however, awarded Rs 16,000 per month in 2015 and increased it to Rs 23,000 in 2016 as the husband's salary went up from Rs 63,842 to Rs 95,527.

This is the latest instance of higher judiciary delivering judgments comforting divorced women. Here is another related judgment.

Earning capacity and alimony not related

In another judgment delivered by the Supreme Court and reported in Deccan Herald on January 22, 2017, and related to alimony with which we started this article, it was held that a woman’s capability to earn cannot be a ground to reduce maintenance granted to her by the husband during pendency of their matrimonial dispute. A Bench of Justices Madan B Lokur and Prafulla C Pant set aside a Karnataka High Court order, which reduced the maintenance amount to a woman and her son after finding that she was capable of earning. “Merely because the woman is capable of earning is not, in our opinion, sufficient reason to reduce the maintenance awarded by the family court,” the Bench said.

In the instant matter, the family court had directed for payment of Rs 25,000 to the woman and her son by the husband. Acting on an appeal by the husband, the High Court reduced the maintenance amount to Rs 12,000, after noting that the woman was capable of working.

But the apex court said whether she is capable of earning or whether she is actually earning are two different requirements. “We are not satisfied with the order passed by the high court considering the income of the respondent, husband, which we have been told is more than Rs 80,000 per month since he is a senior lecturer in a college. “It is also stated by the learned counsel for the appellants that the respondent – husband – is also the owner of 26 acres of irrigated land,” the Bench said.

In the latest case of alimony with which we started, the man had assailed the HC order on the ground that his ex-wife was a qualified beautician and a Montessori teacher, earning Rs 30,000 every month. Therefore, the Rs 23,000 maintenance awarded by the HC was on the higher side, he argued.

Apparently, the SC ignored the question about the ability of the divorced woman to earn an income on her own – actually earning or capable of earning.

The man had assailed the HC order on the ground that his ex-wife was a qualified beautician and a Montessori teacher, earning Rs 30,000 every month. Therefore, the Rs 23,000 maintenance awarded by the HC was on the higher side, he argued. The bench upheld the HC decision, saying the net salary of the husband was Rs 95,000 per month since February 2016. 

 

Comment on this article

  • CLARA, mangalore

    Mon, Oct 16 2017

    my fathers age is 61 and living with a lady she is married her age is 46 and her 2 children are there.my mother is with me.This lady depends on my father for everything and my father is rich person. maintenance case Also dismissed.and joint property case is goin on in the mangalore family court. that lady depends on my father and my father is not ready to give maintenance and share of the property..I am working only 5000 salary I will get..from 7 year's case is going on..and my father build a new house for that lady..and her husband supporting to her because he is not working he is not interested but his wife want money..and my father want that lady for his physical affairs..
    can u give me a suggestion or through the mahila Sangha I has to go...hope I will get maintenance... please..give a suggestion

    DisAgree Agree Reply Report Abuse

  • C, Udupi

    Mon, Apr 24 2017

    Why money if she don't want husband. Men should give compensation to wife and child. And Mens life is ruined by paying money and leaving with his child. He has to beg for his child in court even though he loves so much. Time went where girls use to get harassed by husband and family. Only in India husband should give compensation to wife. But why wife shouldn't give compensation fir making him suffer and harass ,etc if she has left due her greedness. Why her parents are nt punished for misguiding

    DisAgree Agree Reply Report Abuse

  • Dr Mohan Prabhu, LL.D, QC, Mangalore (Kankanady)/Ottawa, Canada

    Sat, Apr 22 2017

    The Court is doing a difficult balancing job, trying to be equitable to both parties. The man comes out in the end as the loser on all grounds - a hard lesson for him to swallow, but he made his "bed". To get relief in the future, the man can always seek a readjustment if fortunes of the ex-wife vary, due to re-marriage or steady earnings in a chosen profession; only those who put themselves to pasture can escape.
    As will be seen from the judgements, the court looks also at the assets amassed by the husband (perhaps also by the wife?) before fixing the quantum of equitable amounts.
    In addition, of course, the court looks at the tax aspects of alimony/maintenance. The alimony giver gets a tax break, the recipient has to declare it as income
    There is also some relief if available from the courts fortunes of the alimony giver change for the worse

    DisAgree Agree Reply Report Abuse

  • Jossey Saldanha, Mumbai

    Fri, Apr 21 2017

    What happens if she marries someone else ...

    DisAgree Agree [7] Reply Report Abuse

  • Mangalurian, Mangaluru

    Sat, Apr 22 2017

    Sir,

    She will get ...

    25% from the first husband,

    25% from the second husband,

    25% from the third husband,

    ... and so on.

    So, if she is a smart one , will choose her assets (= husbands) carefully.

    PS: It is near impossible to find a woman who is not smart when it comes to choosing the assets.

    DisAgree [1] Agree [5] Reply Report Abuse

  • Rajesh, dubai

    Sat, Apr 22 2017

    Remarriage could be a basis for ending an alimony award, but alimony does not automatically end if you re-marry. Your ex-spouse would have to ask the court to terminate your alimony. But Jossy why you want answer??? Any future plans????

    DisAgree [2] Agree Reply Report Abuse

  • Jossey Saldanha, Mumbai

    Sat, Apr 22 2017

    Very complicated stuff.
    I am fully confused ...

    DisAgree Agree [3] Reply Report Abuse

  • J.F.D SOUZA, Attavar, Mangaluru

    Fri, Apr 21 2017

    Though he divorced his wife he is bound to pay maintenance to children. The court see all the angles and give judgement of the case. Had he continued to live with wife and children he would have spent more for their maintenance and children education etc. The children are given husbands sirname and wives.

    DisAgree [2] Agree [3] Reply Report Abuse

  • Joseph D Souza, Mangalore

    Sat, Apr 22 2017

    Is this the case also when the woman asks for divorce? What if she decides to part ways with her children and husband wants her..?

    DisAgree Agree Reply Report Abuse

  • Jossey Saldanha, Mumbai

    Fri, Apr 21 2017

    What if she is earning more than him ...

    DisAgree [1] Agree [12] Reply Report Abuse

  • Antony Fernandes, Mangaluru/USA

    Sat, Apr 22 2017

    Jossey,
    LAW IS ONLY COMAS, NO FULL STOPS. CRIMES ARE INCREASING.

    DisAgree Agree [3] Reply Report Abuse

  • John B. Monteiro, Bondel Mangalore

    Fri, Apr 21 2017

    For those who lament the fate of divorcing men in India having to pay alimony, some consolation comes from the West where multiple divorces are common.
    Divorce is expensive. I used to joke they were going to call it 'all the money,' but they changed it to 'alimony.' It's ripping your heart out through your wallet. Robin Williams, American stand-up comedian (1951-2014) in Money, Heart, Divorce.
    Alimony is like buying hay for the dead horse. – Groucho Marx, American comedian (1890-1975).
    You never realise how short the month is unless you pay alimony. –John Barrymore, American actor (b 1983)

    DisAgree [1] Agree [6] Reply Report Abuse

  • Jossey Saldanha, Mumbai

    Fri, Apr 21 2017

    Why maintain a cow when ...

    DisAgree [1] Agree [4] Reply Report Abuse

  • Rajesh, mangalore

    Sat, Apr 22 2017

    First the cow wants to be maintained , then the cow starts snatching all Even the heart. then once you write everything in the cows name it starts kicking you. Then you are broken from inside and outside. The court the law everything stands in their side. Then a throws a net and catches a new house. again Story repeat. But this possiblity the court does not see . It only says poor cow.

    DisAgree Agree [2] Reply Report Abuse

  • Mangalurian, Mangaluru

    Fri, Apr 21 2017

    No one has said that a marriage is compulsory!!!

    A married man gets pounced on by the laws (and the police, society, courts, media) when the unmarried man is happily enjoying life.

    An unmarried man does not have to share his income with anyone. He can do what he likes with his time.

    So, would it not be wise for an unmarried man to remain so at least until his girlfriend turns 40?

    By that time, both would be more interested in their family, and less interested in lawyers, courts and laws.

    As a byproduct, India's population growth might also slow down a little.

    DisAgree [1] Agree [12] Reply Report Abuse

  • flavian dsouza, chik/bengalure

    Fri, Apr 21 2017

    what happens if the husband loses his job !!! or if he is in business and undergoes losses ?? unfortunately in India our laws as well as judgements are applicable only to that particular case.
    Bring a law which details all these rules and millions of court cases will disappear overnight but we don't want to do that want to hear every case and give judegment

    DisAgree [1] Agree [8] Reply Report Abuse

  • Rao, Udupi

    Fri, Apr 21 2017

    Looking at the judgment, some question arises

    1. Is it the male partner alone responsible to provide financial needs of family?
    2. If female partner is earning still male partner has to contribute the entire share for needs of family?
    3. Is Gender equality considered here?

    DisAgree [2] Agree [23] Reply Report Abuse

  • Rao, Mangalore

    Fri, Apr 21 2017

    What if wife has left her husband for over2 years and staying in her mom's place demanding for a separate house and husband is unable to fulfill that demand due to financial problems and he has age old parents.

    DisAgree [2] Agree [24] Reply Report Abuse

  • R Bhandarkar, Mangaluru

    Fri, Apr 21 2017

    Man earning Handsome salary.
    Woman A qualified beautician.
    However ,what's the use?
    A true Handsome man never ditches.
    A really true " Beautiful"'Wife understands.
    If you are not " TRUE" all such problems arise,and you find yourself in the midst
    Of " Landmark Judgements"

    DisAgree [1] Agree [1] Reply Report Abuse

  • Devkumar, Mangalore/New Delhi

    Fri, Apr 21 2017

    never your earnings disclose to your dear and near ones.
    will take lesson from judgement. keep some money safe for future..not aware when needed at what.hour.

    DisAgree [4] Agree [25] Reply Report Abuse

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