There is no fixed formula for maintenance in India. Courts decide an amount that lets the dependent spouse and children live with reasonable dignity, close to the standard they had during the marriage, without crushing the paying spouse. Here is how that judgement is made.
Where maintenance can be claimed
- Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (formerly Section 125 of the Code of Criminal Procedure): a quick remedy for a wife, children and parents who cannot maintain themselves, open to all religions.
- Hindu Marriage Act, Sections 24 and 25: interim maintenance and litigation costs while the divorce case runs, and permanent alimony at the end. Either spouse can claim.
- Hindu Adoptions and Maintenance Act, 1956, Section 18: a Hindu wife's right to maintenance while living separately for valid reasons.
- Domestic Violence Act, 2005, Section 20: monetary relief for a woman facing domestic violence.
- Special Marriage Act and Divorce Act: similar provisions for marriages under those laws.
You can claim under more than one law, but courts will take account of amounts already awarded so that you don't receive maintenance twice for the same need.
The Rajnesh v. Neha guidelines
In Rajnesh v. Neha (2020), the Supreme Court set out guidelines that family courts across India now follow:
- Both parties must file an affidavit disclosing their assets and liabilities: income, property, bank accounts, investments, loans and expenses. Hiding income can lead to adverse findings and even perjury proceedings.
- Maintenance is payable from the date of the application, not from the date of the order.
- Courts should consider the factors below and give reasons for the amount fixed.
Factors the court weighs
- Income and earning capacity of both spouses, including income from property and business, not only salary. A qualified spouse who could work may receive less, but courts recognise that a career break for the family makes returning to work hard.
- Reasonable needs of the dependent spouse and children: food, housing, clothing, medical care, education.
- Standard of living enjoyed in the matrimonial home.
- The paying spouse's genuine liabilities: dependent parents, other children, unavoidable loan repayments. Voluntary deductions and new luxury loans are usually not accepted.
- Length of the marriage and the age and health of the parties.
- Cost of the litigation itself.
- Inflation: permanent orders may provide for periodic increases.
Is there a percentage rule?
Not a rule, but a reference point. In Kalyan Dey Chowdhury v. Rita Dey Chowdhury (2017), the Supreme Court said 25% of the husband's net salary would be a just and proper amount of maintenance in that case. Courts still decide each case on its facts, and child support is often considered separately.
Monthly or lump sum?
Interim maintenance is paid monthly. Permanent alimony can be monthly or a one-time lump sum. In mutual consent divorces, a lump sum is common because it makes a clean break and avoids enforcement problems later.
Changing or enforcing an order
- Either side can apply to increase or reduce maintenance if circumstances change: a job loss, a promotion, remarriage, or a child's needs growing.
- If payments stop, the court can issue recovery warrants, attach salary or property, and in some cases order imprisonment for the unpaid period.
What to prepare
- salary slips, income tax returns and bank statements (yours, and what you know of your spouse's);
- a monthly budget of your and your children's expenses, with bills;
- evidence of the lifestyle during the marriage: rent, school fees, travel, property.