What is Alimony?

When two people are married, they have an obligation to support each other. This does not
necessarily end with divorce. Under the Code of Criminal Procedure, 1973, the right of
maintenance extends to any person economically dependent on the marriage. This will include,
therefore, either spouse, dependent children and even indigent parents.

The claim of either spouse (though, in the vast majority of cases, it is the wife), however,
depends on the husband having sufficient means. When deciding how much alimony is to be
paid, the courts will take into account the earning potential of the husband, his ability to
regenerate his fortune (in case, say, the property is given to the wife) and his liabilities.

In case either spouse is unable to pay for the divorce, these expenses would also be paid by the
spouse that does have an income.

Factors that influences the duration and amount of alimony

In a contested divorce, the alimony, its amount and tenure, depend upon the length of marriage.
A divorce after a decade of marriage entitles the spouse to a life-long alimony. The other
essential factors that need to be considered are:

1. Age of the spouse (or the person who is entitled to receive the alimony)
2. Economic condition or the earnings of the person who is to provide the alimony
3. The health of both spouse (the failing health or a medical condition of one of the spouses who
is going to receive the alimony may act in favour of him or her. They can claim a larger alimony
on the basis of their failing health).
4. The spouse that retains custody of the child would be entitled to either pay lesser alimony or
be entitled to a greater amount while the child is a minor.

How are property matters settled?

It seldom matters whether you or your spouse own the property. If you are married – irrespective
of the fact that a divorce petition has been filed – you have the right to occupy the property. If
you are also looking after children, the case is much stronger. While the property may be granted
to one or the other spouse in the divorce settlement, until this is done, both spouses have the right
to remain on the property.

What about child custody?

Many assume that the mother always gets custody of her children. This is not the case. While the
courts usually agree to the decision of the parents in a mutual consent divorce, the courts are
expected to see to the best interest of the child. In a contested divorce, the courts will examine
the ability of the mother or father to be a parent to the child, for example. Money is not usually a
matter that is considered. Non-working mothers are regularly given custody of their children, but
fathers are expected to provide financial support.

How much does it cost to get a divorce?

Court fees for filing a divorce are low; the cost of a divorce is mainly in the fees you pay your
lawyer. Lawyers tend to charge fees for appearing in court and doing any other work. Depending
on how intensely it is fought, therefore, a divorce may cost anywhere from the low ten thousands
to lakhs of rupees.

What documents are required to file for divorce?

1. Address proof of husband
2. Address proof of wife
3. Marriage certificate
4. Four passport size photographs of marriage of husband and wife
5. Evidence proving spouses are living separately since more than a year
6. Evidence relating to the failed attempts of reconciliation
7. Income tax statements for the last 2-3 years
8. Details of profession and present remuneration
9. Information relating to family background
10. Details of properties and other assets owned by the petitioner

Annulment of marriage
Marriages in India can also be dissolved by means of annulment. The procedure for annulment is
same as that of divorce, except that the grounds for annulment are different from that of divorce.
Reasons for annulment are fraud, the pregnancy of wife by a person other than the husband,
impotence before the marriage and subsisting even at the time of filing the case.

Once annulment is granted by an Indian court, the status of the parties remains as it was prior to
the marriage.

Void marriage
A marriage is automatically void and is automatically annulled when law prohibits it. Section 11
of Hindu Marriage Act, 1955 deals with:

Any marriage solemnized after the commencement of this Act shall be null and void and may, on
a petition presented by either party thereto, against the other party be so declared by a decree of
nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v), Section 5
of the Act.

Bigamy: If either spouse was still legally married to another person at the time of the marriage
then the marriage is void, and no formal annulment is necessary.

Interfamily marriage: A marriage between an ancestor and a descendant, or between a brother

and a sister, whether the relationship is by the half or the whole blood or by adoption.

Marriage between close relatives: A marriage between an uncle and a niece, between an aunt
and a nephew, or between first cousins, whether the relationship is by the half or the whole
blood, except as to marriages permitted by the established customs.
Voidable marriage
A voidable marriage is one where an annulment is not automatic and must be sought by one of
the parties. Generally, an annulment may be sought by one of the parties to a marriage if the
intent to enter into the civil contract of marriage was not present at the time of the marriage,
either due to mental illness, intoxication, duress or fraud.

The duration for obtaining divorce varies from case to case and place to place. Generally
speaking, contested divorce proceedings take 18 to 24 months. Mutual consent divorce varies
from 6 months to 18 months.