Meemansha Choudhary
Introduction
The rapid advancement of technology and societal evolution often leaves the law struggling to keep pace. While this lag is understandable, given the gravity of legal decisions and their implications on society at large. However, it becomes imperative to question the relevance and manner of implementation of certain concepts in the modern context. The recent tragic incident involving the alleged suicide case of a Bengaluru techie, reportedly linked to financial and emotional stress stemming from alimony obligations, has brought the spotlight onto the pressing need to evaluate the relevance and implementation of Alimony laws. This has prompted us to ponder multiple questions, primarily why someone should be made liable to sustain the living of their ex-spouse. Further, are the current laws fit for purpose in an era defined by rapid change in gender roles and evolving relationships? Although the Apex Court has clarified that the intention behind awarding alimony is not to penalise the paying spouse, the practical application of maintenance-related provisions raises critical questions about fairness, evolving societal roles, and their unintended consequences.
The present Article delves into the relevance and fairness of alimony provisions in the context of modern considerations. While exploring the historical roots and jurisprudence behind the emergence of alimony, the article analyzes the current legal framework with a gendered lens to identify its lacunae. Finally, the article suggests actionable recommendations for dealing with these systemic inequalities.
Alimony as a Socio-Economic Safety Net for Women
A common critique of alimony provisions lies in their origin, it is argued that the provisions supporting women were introduced at a time when women lacked rights however the contemporary society, guided by the principle of equality as ensured by the Constitution, challenges their continued relevance. The common question directed towards this concept is that when equal rights have been granted to men and women then why is there a requirement for preferential treatment towards women?
The answer to this lies in the prevailing socio-economic realities that exist in complete contrast to what has been mandated by the law. The concept of maintenance ensures that if one spouse lacks financial independence, the other spouse provides support to enable them a feasible and independent life. The Delhi High Court has observed two primary objectives of maintenance provisions, firstly as a step against vagrancy, providing maintenance to ensure that the dependent spouse doesn’t fall into destitution or homelessness due to divorce. Secondly to ensure procedural fairness in legal proceedings, because in the absence of financial support, the spouse won’t be able to represent their side effectively.
The argument against these provisions largely centres on why women are the predominant recipients of alimony. This requires closer scrutiny of Indian societal structures. In India, marriage often transforms a woman’s relationship with her parental home, reducing her position to that of a stranger. It took judicial intervention, such as the judgement passed by the Madras High Court clarifying the right to residence of a daughter at her birthplace. To claim the basic entitlement of an offspring, it took an order by a High Court merely because the daughter was married.
Even today, cultural norms perpetuate inequality, parents often view educating their daughters as a means to secure better marital prospects rather than preparing them for meaningful jobs and financial independence. Researchers have documented this outlook and their research suggests that the rising education levels for women are largely driven by the motive to secure better matches in the marriage market, not to improve job prospects. Furthermore, data highlights that, in India, women spend 297 minutes on unpaid household chores on average, while on the other hand, men spend only 31 minutes. This huge disparity showcases that the huge amount of labour invested by women goes unaccounted for and unrecognised because it is unpaid. Additionally, the “marriage penalty” significantly hinders women’s participation. A study by the World Bank’s research on South Asia found that women face a 12-percentage-point drop in labour force participation post-marriage, which has been termed the “marriage penalty,” whereas men often experience a “marriage premium,” gaining economic and social benefits post-marriage.
This data showcases the systemic inequalities that leave many women financially vulnerable after divorce. Despite the increased access to education due to the attempts of the State, women are often conditioned to prioritize familial roles over career advancement by their own family and society. This dynamic showcases the limitations of the current empowerment strategies.
Hence, education and job opportunities remain a band-aid solution for achieving the desired female empowerment and gender equality in Indian society. This superficial approach fails to address the root cause behind the economic and social vulnerability of women. This data on the marriage penalty illustrates why financial support in favour of women post-divorce becomes crucial, especially when they are being pushed out of the labour force. Alimony, therefore serves as compensation for the sacrifices made by the spouse who prioritized domestic responsibilities, during the subsistence of marriage. Since these contributions lack monetary value, the responsibility is borne by the earning spouse to prevent their former partner from falling into the clutches of poverty after divorce.
Given these socio-economic realities, where generally women are the ones taking care of the household activities, it becomes essential to continue directing financial support towards them even when the relationship ends. In this context, alimony and maintenance laws hold value for addressing these inequalities, meted out due to the combined effect of these multiple social factors.
Forgotten Stakeholders in Existing Legal Framework
The existing framework governing alimony and maintenance is a blend of personal laws and statutory provisions, that is guided by the objective of addressing the financial disparity between the spouses post-separation or divorce. Under Hindu personal law, section 25 of the Hindu Marriage Act administers the aspect of permanent alimony and maintenance. The section stands out for its gender-neutral language that enables either of the spouses to claim alimony based on their inability. This provision is in consonance with the essential goal of alimony that neither of the dependent spouses should suffer at the expense of divorce.
However, other than Hindu personal laws the other existing personal and legal frameworks fall short of explicitly addressing the issue of financial stability in a gender-neutral manner. For instance, Section 37 of the Special Marriage Act, of 1954, which determines the permanent alimony in case of inter-religious marriages, explicitly states the obligation of the husband to pay for the maintenance to the wife but mandates no reciprocal obligation for the wife. Similarly, the Indian Divorce Act, of 1869 regulating separation within Christian couples, adopts the same language as that of the Special Marriage Act, of 1954, showcasing another women-centric stance. Law has only foreseen a situation where the husband is incapable of maintaining his wife, herein the courts have the discretion of suspending maintenance for the time being.
These provisions showcase the broader issue wherein the financial vulnerabilities of male spouses are getting sidelined. Even general maintenance provisions like Section 125 of the Code of Criminal Procedure (now Section 144 of the BNSS) fail to adequately acknowledge the necessity of gender-neutral welfare provisions. However, a modern outlook presented by the judiciary, while interpreting section 125 CrPC offers some hope. In Shikha v. Avaneesh Mahodaya, the MP High Court emphasized that the purpose of maintenance provisions is not to turn well-qualified spouses entirely dependent on the maintenance granted. The judiciary has shown efforts to ensure that maintenance does not convert into a tool of extortion. In Jasbir Kaur Sehgal v. District Judge Dehradun, the Apex Court underscored important considerations for awarding maintenance, which include the payer’s financial capacity, reasonable expenses of the recipient, and existing legal obligations. Likewise, in AJ v. MJ[i], the Delhi High Court emphasized the importance of disclosing the wife’s income while determining permanent maintenance. All these rulings have attempted to collectively strike a balance between ensuring support and preventing misuse.
The gender-neutral approach of Hindu law reflects the ideal situation wherein alimony is inclusive enough to calculate monetary support based on the negative impact suffered by the spouses rather than merely gender. However, the judicial interpretation showcases a tendency to be women-centric yet again. For instance, in Nivya V.M. vs. Shivaprasad N.K., the Kerala High Court observed that maintenance should be awarded to a spouse who is demonstrably incapable of earning a livelihood. However, the court also emphasized a cautious approach by mentioning that allowing maintenance claims without adequate proof of incapacity could inadvertently promote idleness among husbands.
Further, the guidelines provided by the Supreme Court in the recent case of Praveen Jain v. Anju Jain identified the broad factors for consideration while determining the amount of permanent alimony. These factors have a wide scope; however, the pertinent point here is that the factors again explicitly identify the specific requirements of wives but do not lay down the same in a gender-neutral manner. This pattern demonstrates that the legislative framework is explicitly drafted for the welfare of women, which is not the concerning point. The question arises due to the exclusionary stance towards men which reflects the need for recalibration. Although societal norms warrant affirmative action in favour of women, the rights of male spouses should not be disregarded without giving due consideration, which calls for an equitably balanced approach.
Way Forward
At present the pressing need is the introduction of gender-neutral provisions that are capable of accommodating those cases wherein the rights of male spouses are getting overlooked. For the institution of marriage to act as a true vehicle of equality, equitable recognition of rights and protection of all parties is essential. This does not imply treating both spouses identically in all circumstances, rather the provisions allow flexibility to accommodate the requirements of each case. When the judges have a sufficient amount of discretion to order affirmative action in favour of the spouse in need, equality will be achieved without any compromise. However, this discretion must be guided by objective parameters to prevent any inconsistency in the dependent spouse’s need and the grant of award. Such parameters will ensure that the amount and the receiver of the alimony are reasonably justifiable which will result in fairness and unbiased decision-making.
Moreover, the over-reliance on alimony provisions to secure a safe future for the dependent spouse is not sufficient to address the broader challenge. The responsibility of financial security cannot rest solely on the ex-spouse; the state also has to come forward and create opportunities for the financial independence of the receiver. While the provision of interim maintenance serves an essential role in ensuring proper legal representation, the concept of permanent alimony requires re-evaluation. Instead of a lifetime dependence on ex-spouse, attempts at skill-building should be encouraged by the State.
Thus, the current framework requires certain urgent reforms, so as to keep pace with the new-age socio-economic realities. The reforms have to be in the nature of providing sufficient discretion with the judiciary but simultaneously guiding the decision-making by way of objective criteria. Adoption of such balanced approach will ensure fairness towards both the parties and reflect progressive ethos.
The author is a fourth-year student at National Law University, Jodhpur.
[i] AJ vs. MJ (21.02.2014 – DELHC) CM(M) No. 910/2010