Capacity of wife to earn is a relevant factor for determining alimony in matrimonial proceedings #indianlaws

Wife’s capacity to earn after separation is also a relevant factor to be kept in mind in determinig alimony. Similarly the responsibility which the wife would have bourne had the relationship continued is also a relevant aspect to be kept in mind. 

In the present matter quantum of permanent alimony was challenged by the Husband Petitioner. The Husband, a handicapped person, had filed a petition under Section 13(1) of Hindu Marriage Act, 1955 against the wife seeking decree of divorce on the ground of cruelty. The Wife, during her stay once had fallen ill and during treatment it was found that she was suffering from Polycystic Ovarian Syndrome (PCOS). 

In the written statement Wife denied the allegations made by the husband and stated that the income of her husband is Rs.1,50,000/- per month and he was also alleged of demanding dowry at the time of marriage which was fulfilled and when additional demand was not fulfilled, she was subjected to physical and mental torture by her in-laws. 
The Family Court held that husband successfully proved he was taking utmost care of the Wife but she was treating him and his family members with cruelty. It was further held that the marriage between the parties had broken down irretrievably and the husband was held to be entitled to the relief of dissolution of marriage. On the issue of maintenance it was held that considering the social status of the parties, their income and present price index, permanent alimony of the wife would be fixed and accordingly directed the husband to pay a sum of Rs.16 lakhs to the wife towards her permanent alimony.

The order of divorce was not challenged further however the wife challenged the findings arrived at by the family court in regard to ground of divorce i.e. cruelty. 

The Court held that the marriage between the parties has been irretrievably broken down and it had remained for name sake. A marriage which is dead for all purposes cannot be revived by the court’s verdict, if the parties are not willing. 

On the issue of maintenance as permanent alimony, it was held that considering the economic status of the parties, their respective needs, the capacity of the husband to pay and the amount of permanent alimony fixed for the wife should be such that she can live in reasonable comfort and simultaneously it should not be excessive and affect the living condition of the husband and also the age of the wife.

It was further held that in a lis, where marriage has been broken down irretrievably with extinct possibility of any reconciliation and both the spouses hanker final snapping of marital relationships, the only maiden and most viciously contested issue is the amount of alimony to be paid to the wife while not challenging the decree of divorce. Every single aspect of life is touched with most vociferously hankered contentions to deny each penny by the husband who is duty bound to pay alimony whereas the wife resorts, with the same vigour, to all submissions for a bullish amount. It was further observed that life is not a straight jacket formula of incidents to be calculable through mathematical precisions. It is too complex and collection of unthinkable innumerable unforeseen circumstances. What is destined and what will be future life is impossible to predict and therefore to determine amount of alimony to be paid so that the entitled spouse lives a dignified life according to the standard of the other side is an upheaval and arduous task left with the courts to decide more especially because there is no written Law on the subject and this makes the decision making process even more complex since the balancing act consists of unperceivable circumstances. Therefore the wisdom lies in deciding each case on its peculiar facts and surrounding circumstances without even attempting to fix any formula of universal application.

While determining permanent alimony factors like length of marriage, time since the spouses are living separately, age of the parties, relative income of both the spouses, financial prospects of the parties, health of the parties, and fault in breaking down of the marriage are to given relevant consideration. Alimony is no alms. It is entitlement of a wife for a decent living. All relevant factors affecting fiscal expenses have to be considered. It is not the home take salary alone which is of significance. Capacity to earn and actual earning has also to be reckoned with. Savings made by the husband for securing his future life is also significant and has to be counted while determining the amount of alimony. Wife requires a reasonable amount to meet all her basic needs for a life which she would have enjoyed had the marital tie would have continued. The amount of money received at the time of marriage has also to be counted. While fixing alimony, all essential future expenses of all kinds have to be considered.

The contention that take home salary of the husband is the only relevant criterion is illogical and faulty. Wife’s capacity to earn after separation is also a relevant factor to be kept in mind. Similarly the responsibility which the wife would have bourne had the relationship continued is also a relevant aspect to be kept in mind. Residence, future possibility of maintaining oneself alone, clothing, fooding, biological requirements of a female and many further aspects are other significant points which have to be kept in mind.

The author of the article is Anupam Srivastava who can be reached at anupam@tcl-india.net

[Dipak Bash vs. Smitarani Bash]
(Orissa HC, 16 .03.2015)
(MATA Nos. 14 and 26 of 2013
And RPFAM Nos. 127 of 2011
And 97 of 2012)