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.