Is the SC benchmark of 25pc of the man’s salary in maintenance to ex-wife a fair deal?

Though the Supreme Court benchmark on alimony is likely to help resolve divorce cases faster by bringing in a fixed percentage of alimony, there are some questions that need to be answered to further bring clarity and reduce acrimonious courtroom battles.

The Supreme Court directed a West Bengal resident earning a salary of Rs 95,527 to pay monthly alimony of Rs 20,000 to his ex-wife and 18-year-old son. The couple has been battling it out in court over maintenance since 2003 when the district judge fixed the amount at Rs 4,500. The high court later awarded maintenance at 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.

The man had argued that since his ex-wife was a trained beautician and Montessori teacher earning Rs 30,000 while their son was now an 18-year-old, the alimony amount should be reduced. The ex-wife argued that additional money was required to support the higher education of their son.

The Supreme Court remarked that the amount set by the high court for the alimony to be paid by the husband to his estranged wife, at 25 percent of his net salary, was a "just and proper" amount. However, since the man has since remarried and has a child with his second wife, the court observed that it would be difficult for the man to maintain two families and hence reduced the amount from Rs 23,000 to Rs 20,000.

The bench constituted of Justices R Banumathi and MM Santanagoudar made the observation while passing the verdict on the case of a Hoogly resident. The court said the amount of maintenance or permanent alimony must be sufficient to ensure that a woman lives with dignity after separating from her husband.

I reached out to Mishi Choudhary, a lawyer who practises both in India and the USA, to find out whether she thought the judgment was fair. She said, “The court fixes a maintenance amount that is fair under the circumstances. In making the decision, the court considers a number of factors including the standard of living during the marriage, the income of spouses, etc. A fixed percentage is always easier for the non-custodial parent to calculate, implement, and figure out the expenses and plan for the future and can help avoid litigation and streamline the entire process. In this judgment, the maintenance is for both the wife and the son. It’s similar to the US where child support at a fixed cost should be mandatorily paid to financially support the child until the child turns 18/21 years old.”

To compare, in the USA, the law changes from state to state but spousal support is generally limited to the lesser of $2,500 per month or 40 percent of the payee's gross income.

The apex court had previously passed a ruling to protect claims of women in matrimonial disputes affecting their financial status. "A Hindu woman's right to maintenance is a personal obligation so far as the husband is concerned, and it is his duty to maintain her even if he has no property. It is well settled that under the Hindu Law, the husband has got a personal obligation to maintain his wife and if he is possessed of properties then his wife is entitled to a right to be maintained out of such properties," the apex court had said in a judgment it had delivered in 2016.

Of course, in the practical context, a lot of questions remain. Is 25 percent to be calculated on basic salary or gross pay? Will some men who receive a high amount in perks and benefits be able to wrangle a much smaller amount of maintenance if those benefits are not considered? What about the non-salaried, for example, businessmen, who might not be disclosing their total income in ‘white money’? The honourable court will have to take these questions up so that a transparent and fair system of alimony is worked out.

About the author

Sharika is a self-confessed bookworm whose dream job would be sitting in libraries, poring over dusty tomes. Since nobody was willing to pay her for that, she chose the next best option for a career - writing. An MBA in Marketing & Advertising, she brings her previous work experience with ad agencies to the YourStory team. She can be reached at sharika@yourstory.com and on twitter @sharikanair_k

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