Alimony Laws In India Don’t Look At ‘Duration In Marriage’ Or ‘Fixed Timeline For Maintaining Separated Women’

Delhi High Court has recently directed a modified affidavit disclosing income, expenditure, assets, and every single penny to be listed down by both the spouses to determine their true income for fixing maintenance, permanent alimony, and rights in joint properties as well.

The move is apparently done with an aim to resolve matrimonial disputes accurately and in a ‘swift’ manner. The revisions have been made to the already existing format which had been drafted in the Kusum Sharma Vs Mahinder Kumar Sharma case (full details listed at the end of this article).

Some of the pointers that both parties have to list down include, detailed expenditure, income, assets, even brand of mobile, wristwatch, pen, wages of maids, expenses incurred on functions and festivals to specify their true income. The Delhi high court on Thursday issued a 79-page order that states detailed version of income and expenditure amongst other specifications.

Justice JR Midha stated how jurisdiction in matrimonial litigations deserve special attention, thereby, indicating that the maintenance applications should be decided promptly. The high court has also directed the subordinate courts to fasten the maintenance proceedings. The court has also suggested timelines to be adhered to, while fixing the maintenance amounts.

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In its order the court said,

It is the duty of the court to ascertain the true income of the parties and then pass the appropriate order relating to maintenance. Truth is the foundation of justice. Dispensation of justice, based on truth, is an essential feature in the justice delivery system. People would have faith in courts when truth alone triumphs. Justice based on truth would establish peace in the society.

The court also recommended that mandatory filing of the affidavit which includes assets, income, and expenditure by the parties should be incorporated in the statuses, as in the developed countries and called upon the central government to consider the suggestion.

Considering the formats of the affidavits of assets, income, and expenditure to be filed by the parties in matrimonial litigation in the United Kingdom, United States of America, Canada, Australia, Ireland, South Africa, and Singapore, the court informed that it has included some important questions and documents in the format as well.

Earlier in 2015, the HC had released guidelines and prepared an affidavit of assets, income, and expenditure to be filed by both the spouses in the event of matrimonial litigation. Later in 2017, the earlier issued guidelines were modified in May and December. However, on Thursday, the court has yet again revised the same to make it more comprehensive and detailed.

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This newly modified affidavit directs:

• A salaried person is required to disclose the particulars of his employment including salary, dearness allowance, commissions, bonus, perks, other benefits, and income tax
• A self-employed person has to show the nature of business/profession, share, net worth, number of employees, annual turnover, gross profit, income tax, and regular monthly withdrawal

Other Particulars

1. Moreover, if the parties have income from other sources, like rent, interest on bank deposits, agriculture, investments, particulars of immovable properties, DEMAT accounts, profit on the sale of assets, financial assets including bank accounts, safety deposit lockers, loans, insurance policies, and foreign investments, the same need to be declared as well
2. Motor vehicles, computers, laptops, electronic gadgets, gold, silver and diamond jewelry, mobiles, intangible assets and properties acquired by the family members or inheritance, all these will have to be disclosed under movable assets
3. Standard of living, credit/debit cards, membership of clubs, domestic help and their wages, mode of travel in the city and outside, category of hotels, hospitals for medical treatment, frequency of foreign travel, the brand of the mobile, wristwatch, pen, expenditure those incurred on functions, festivals and marriage of family members
4. Expenses on housing, household and medical, maintenance of dependents, transport, entertainment, and vacations

The filing of affidavits by either parties should not be lessened to a sheer formality, ordered the high court. It also suggested that if the party does not honestly showcase all his/her assets and income, the court may order interrogatories or inspection of documents.

The court also mentioned that it has all the liberty needed to pass appropriate directions to do complete justice between the parties and in cases belonging to the lowest strata of the society or in case of a plaintiff who is permanently disabled, it may dole out with the requirement of filing of an affidavit or modify the information required.

The high court has directed the family courts to send the list of pending maintenance cases that are more than one year old. It also directed that it should contain the name of the case, date of the institution, number of hearings, and everything else that has taken place and also the reasons for the delay.

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The court ordered,

These modified directions/guidelines shall apply to all matrimonial cases including under Hindu Marriage Act, Protection of Women from Domestic Violence Act, Section 125 CrPC, Hindu Adoption, and Maintenance Act, Special Marriage Act, Indian Divorce Act, Guardians, and Wards Act and Hindu Minority and Guardianship Act.

Also, the court further suggested,

List be prepared according to the seniority, that is, the oldest case shall be mentioned first. Principle judge, the family court shall compile the lists of all family courts and send them to the Registrar General of this court by December 31 for being placed before this court.

Our Take:

Any effort made by courts to grant ‘speedy’ justice in matrimonial matters must be appreciated. However, this is not the first time any court has expressed their desire to fasten the maintenance or matrimonial battles in India. On several occasions earlier as well, there had been directions by High Court to expedite and conclude divorce matters within six months, however, as a system we have totally collapsed and failed, where matrimonial battles have been ranging in courts for several decades for many couples. This is primarily due to ego tussles between the couple, most often by the women who misuse the law in their favour, since they are being paid maintenance till the divorce petition remains pending.

Now, coming to making implementations in the affidavit for maintenance, largely citing comparisons with other developed countries, often our lawmakers and the suggestion givers forget to include ‘duration in marriage’ and ‘timelines‘ until when maintenance allowances must be paid. Let us illustrate with few examples below:

New York, USA

Spousal support is court ordered money paid to support a spouse. Maintenance or “temporary maintenance” is support ordered to be paid for an ex-spouse, or while a divorce case is pending in court. Since October 26, 2015, New York has had a presumptive formula to decide how much support or “temporary maintenance” should be paid. On January 25, 2016, a new law took effect setting presumptive amounts and length of time for maintenance after a divorce.

Timelines

The judge can limit how long one must pay maintenance. As of January 2016 there is a formula for this.  For a marriage lasting up to 15 years, maintenance is expected to last 15% to 30% of the length of the marriage.  For marriages lasting 15 to 20 years, maintenance is expected to last 30% to 40% of the length of the marriage. For marriages lasting more than 20 years, maintenance is expected to last 35% to 50% of the length of the marriage.

United Kingdom

1) What is Spousal Maintenance?

This is a regular payment made by a former husband, wife or civil partner to their ex-partner. It’s only paid where one partner can’t support themselves financially without it.

The amount you receive would depend on:

• How much you need to live on;
• How much income you already have; and
• How much you could potentially earn in the future

2) When is Spousal Maintenance Paid?

• If the marriage or civil partnership is short (typically, less than five years), it might not be paid at all or only for a short period through what’s called a ‘term order’
• But where a couple has been together for a long time, or where an ex-partner is unable to work, it can be paid for life
• In legal language, it’s on a ‘joint lives’ basis, which means either until the person paying maintenance or the one receiving it dies
• However, spousal maintenance on a joint lives basis is increasingly rare

Australia

1) What does a court consider when making a decision?

The court considers the needs of an applicant and the respondent’s capacity to pay. The court considers the following about both of you:

• your age and health
• your income, property, and financial resources
• your ability to work
• what is a suitable standard of living, and
• if the marriage has affected your ability to earn an income

The court also takes into account with whom the children (under 18 years of age or adult children who are disabled) live.

2) Timelines

• The duration for paying spousal maintenance is assessed on a case by case basis
• It can be paid on an ongoing basis while divorce proceedings are being finalised. Alternatively it can be paid in one lump sum at the end of a property settlement
• The payment of spousal maintenance can be ordered for an indefinite period of time or it can be ordered for a specific periodic of time with a set end date

Netherlands

The Dutch have framed their latest alimony/maintenance laws as on January 2020, wherein the maximum 12-year alimony period has been further reduced considering the practical aspects of maintenance payable and deserved.

With effect from 1 January 2020, the new rule is as follows:

• The duration of the obligation to pay partner alimony is limited to half the duration of the marriage, with a maximum of 5 years
• Lets say you were married for 2-years, your liability for paying maintenance is limited upto 1-year only, or if you were married for 15-years, you need to pay maintenance for next five years max

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What our judiciary does is handpicks the laws from abroad, conveniently leaving the timelines which are infact most crucial in a country like India. With backlogs and piles of cases in every court, no conviction for perjury, no definite timeline to end divorce matters backed by constant narrative of ‘oppressed women’, leaves men to be tied down inhumanly for the rest of their lives, while women have no responsibility of becoming self sufficient ever.

Secondly, every country includes the term ‘spousal maintenance’ whereas in India, how many women end up paying maintenance to their husbands? The final and most crucial point that our judiciary misses out while framing maintenance affidavits or timelines, is the ‘duration in marriage’. Our laws effectively suggest that a man married for 1-month and separating from wife has to pay similar duration and quantum of maintenance as that of a man married for 20-years and divorcing his wife.

Its time we stop the hypocrisy of taking part shelter under the laws from the west, unless we want to further intend and promote a system, where women are encouraged to make maintenance and alimony as permanent and tax free income business.

ALSO READ –

http://voiceformenindia.com/in-the-social/new-alimony-law-in-netherlands-from-2020/

http://voiceformenindia.com/in-the-law/kusum-sharma-vs-mahinder-kumar-sharma-affidavit-format/

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