The changes in divorce legislation over the years notwithstanding, Delhi High Court advocate Anil Amrit does not think personal laws adequately protect the woman’s financial rights. Yet she can get more than the maximum amount of alimony set out in the personal laws applicable to her, if the judge considers the facts and circumstances of the case while determining the quantum of alimony, rather than go strictly by the book. To prove his point, Amrit dwells on a Delhi High Court judgement in a high-profile case involving the son of a politician. Edited excerpts of his interview with Livemint.com:
In your opinion do Indian divorce laws adequately protect the woman’s financial interests?
No, they don’t. While there has been a gradual enrichment of the rights of the woman under the Hindu Law since 1956, much still remains to be done to protect her financial interests. According to me it is absolutely incorrect for the legislature to provide for the upper limit of the maintenance to be paid to the spouse when no periodical review of the same has been provided for. Further, under the system of the joint family, it is extremely difficult to ensure that women get their rightful financial dues in the current framework of statutory provisions.
But despite the limit on the amount of alimony by some personal laws, judges have been known to award much higher amounts.
According to me, there is no need to provide for the limit on the amount of the maintenance that a woman is entitled to in any of the statutes. It has to be left to the judicial mind of the judge concerned to decide the quantum in (the light of) the facts and circumstances of each case.
Take for example the case Bharat Hegde vs Saroj Hegde, heard in the Delhi High Court (Bharat Hegde is the son of former Karnataka Chief Minister Ramakrishna Hegde).
Justice Pradeep Nandrajog, who heard the case, determined the amount of maintenance that was finally awarded, on the basis of 11 broad parameters:
1.Status of the parties
2.Reasonable wants of the claimant (Bharat)
3.The independent income and property owned by the claimant
4.The number of persons, the non-applicant (Saroj) has to maintain
5.The amount should aid the applicant (Saroj) to live in a similar life style as he/she enjoyed in the matrimonial home
6.Non-applicant’s liabilities, if any
7.Provisions for food, clothing, shelter, education, medical attendance and treatment, etc. of the applicant
8.Payment capacity of the non-applicant
9.Some guess work is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed.
10.The non-applicant to defray the cost of litigation.
11.The amount awarded under Section 125 of the Criminal Procedure Code is adjustable against the amount awarded under Section 24 of the (Hindu Marriage) Act.
The court rejected Bharat Hegde’s contention that he was unemployed, had no source of income and was totally dependent on his parents. Saroj got Rs25,000 a month as maintenance in a judgement passed on 24 April 2007.
What recourse does a woman have in case her husband / ex-husband refuses to give her alimony or maintenance? On what grounds in a court of law can the husband refuse to give alimony to the woman? What steps must she take to counter his claim?
The women has to take recourse to law and file the case for fixation of maintenance under various statutes depending upon the religion and customs that have attained the status of law. The amount will be required to be fixed by a judicial order depending upon the facts of each case by the court of competent jurisdiction.
A husband can refuse to give alimony to the wife if he is able to prove she is well off and is in a financially more sound position than he. In appropriate cases, the husband can claim maintenance from the wife.
She has to prove the entitlement and the financial dependence on the husband during the period that they lived together including the status and lifestyle that the woman was enjoying during the time spent together as husband and wife.
What must a woman do to get her fair share of assets owned jointly with her husband?
Jointly owned assets are to be divided among the co-owners on the basis of their respective shares. Due regard is also to be given to the claim of alimony or the maintenance as explained above. In case the husband refuses to vacate the property owned by wife, where he was/is staying as a licensee, he can be evicted—but again, by following due process of law. Normally all these things are taken care of by the courts while deciding the dispute between the parties.
Would she lose her rights in case she gets remarried later?
Yes. There are some rights that do get affected in case of remarriage, such as inheritance and maintenance.