Answer ... (a) What orders can the court make in relation to spousal and child maintenance on divorce or judicial separation and how are the relevant amounts calculated?
Various factors must be kept in mind when calculating child support and spousal support. These factors will be examined carefully by the judge before issuing a final judgment. Some of these are discussed below.
Spousal support: There are various enactment through which a spouse can seek support/maintenance, alimony and so on. For example, under Section 25 of the Hindu Marriage Act, 1955, alimony is given to a spouse after getting divorced. Thus, if the wife is a working woman with her own livelihood, the difference between the earnings of the husband and wife will be taken into account. If that difference is considerable, the wife will receive alimony after divorce.
In some cases, a husband can receive alimony if he is unable to earn or disabled and the wife is earning. If the wife is unemployed, her age, educational qualifications, and earning capability will be considered in calculating the alimony.
Factors affecting the spousal support calculations: The following factors are considered in the court’s calculations:
- the incomes of the husband and wife, and other assets such as property and stocks;
- the conduct of the husband and the wife;
- Monthly Instalments, loan repayments, income tax and so on, which are mandatorily deducted from the spouse’s income to calculate his or her net income;
- liabilities of the spouses, such as dependent parents;
- the spouses’ lifestyles and social status;
- the age and health conditions of the spouses;
- the duration of the marriage; and
- the expenses of any children.
(b) What general principles apply to spousal and child maintenance? What specific factors will the court consider in deciding which orders to make in this regard?
There is no specific legislation/provision for law pertaining to spousal and child maintenance in India, however, the legal principles for spousal and child maintenance have been derived from various precedents set out by the Supreme Court of India. The Courts will consider the following principles:
Spousal Maintenance:
- Financial Need: Courts typically assess the financial needs of the spouse seeking maintenance. This includes considering their income, assets, and reasonable expenses.
- Ability to Pay: The court will also evaluate the ability of the paying spouse to meet their own financial obligations while providing support. This assessment takes into account their income, assets, and expenses.
- Standard of Living: Courts may aim to maintain a reasonable standard of living for the spouse seeking maintenance, similar to what they enjoyed during the marriage.
- Duration of the Marriage: The length of the marriage often plays a role in determining the duration and amount of spousal maintenance. Longer marriages may lead to more extended and substantial maintenance orders.
- Earning Capacity: The court may consider the earning capacity of both spouses, taking into account their education, skills, and ability to find suitable employment.
- Contributions to the Marriage: Contributions made by each spouse to the marriage, both financial and non-financial, are typically considered. This includes homemaking, childcare, and career sacrifices made for the benefit of the family.
- Custodial Responsibilities: If one spouse has primary custody of the children, this may be a factor in determining spousal maintenance, as it can impact their ability to work and support themselves.
Child Maintenance:
- Child’s Best Interests: The primary consideration in child maintenance cases is the best interests of the child. Courts aim to ensure that the child’s needs for support, care, and education are met.
- Child’s Needs: Courts will assess the specific needs of the child, such as housing, food, clothing, medical care, and education.
- Income and Expenses: The income and expenses of both parents are evaluated to determine their ability to contribute to the child’s financial support.
- Custodial Arrangements: The custody and visitation arrangements may impact the amount of child maintenance. For example, the non-custodial parent may be required to pay more if they have limited visitation rights.
- Child’s Age and Health: The child’s age, health, and any special needs will be considered when determining child maintenance.
- Parenting Time: In shared custody or joint custody arrangements, where both parents have significant parenting time, child maintenance may be adjusted accordingly.
- Income Changes: Courts may allow for modifications to child maintenance orders if there are substantial changes in the income or financial circumstances of either parent.
Family courts have discretion in making spousal and child maintenance orders, and the final decision will depend on the circumstances of each situation.
(c) When do spousal and child maintenance expire?
Spousal and child maintenance laws can vary significantly from one jurisdiction to another, so it’s crucial to consult the specific laws and regulations in your area to get accurate information. However, a general overview of common principles that often apply to the expiration of spousal and child maintenance.
- Duration of Spousal Maintenance:
- Court Order: Spousal maintenance, also known as alimony or spousal support, is typically determined by a court order or through a voluntary agreement between the spouses. The duration of spousal maintenance can vary widely based on factors such as the length of the marriage, the financial circumstances of each spouse, and the specific laws in your jurisdiction.
- Change in Circumstances: Spousal maintenance may expire or be modified if there is a significant change in the financial circumstances of either spouse. For example, if the recipient spouse remarries or obtains a significant increase in income, the paying spouse may request a modification or termination of the maintenance obligation.
- Duration of Child Maintenance (Child Support):
- Age of Majority: Child maintenance, often referred to as child support, typically continues until the child reaches the age of majority, which is usually 18 years old in many jurisdictions. However, this age can vary by jurisdiction.
- Post-Majority Support: In some cases, child support may extend beyond the age of majority, especially if the child has special needs, disabilities, or is pursuing higher education. Some jurisdictions have laws that allow for post-majority support in certain circumstances.
- Emancipation: Child support may also end if the child becomes emancipated before reaching the age of majority. Emancipation can occur when a child marries, joins the military, or becomes financially self-sufficient.
- Court Orders and Agreements: Child support obligations are typically outlined in court orders or agreements between the parents. These documents should specify the terms and conditions under which child support will be paid and when it may cease.
Court orders and agreements will provide the most accurate information on when these maintenance obligations expire in your particular situation. Additionally, modification requests can be made if circumstances change, but they must usually be approved by the court.
(d) What happens to spousal and child maintenance after the death of the paying party or if the paying party is an adjudicated bankrupt?
In India, the concept of spousal and child maintenance after the death of the paying party or if the paying party is an adjudicated bankrupt is governed by:
- the personal laws; and
- the Insolvency and Bankruptcy Code, 2016.
Under the personal laws, the obligations of spousal and child maintenance cease upon the death of the paying party. However, the burden of providing for the maintenance of
the spouse and children may fall on the deceased’s estate or surviving family members, depending on the circumstances and the assets left behind by the deceased.
In case of bankruptcy, if the paying party is declared bankrupt under the Insolvency and Bankruptcy Code, 2016, his or her financial obligations – including spousal and child maintenance – may be discharged or modified. Upon the initiation of bankruptcy proceedings, an insolvency resolution professional is appointed to manage the debtor’s affairs and distribute the available funds to the creditors, including the ex-spouse and children who may be entitled to maintenance.
Under Section 53 of the Insolvency and Bankruptcy Code, 2016, financial debts owed to operational creditors – including maintenance-related payments – are classified as unsecured and are given a lower priority compared to other debts. This means that the amount available for maintenance may be significantly reduced in cases of bankruptcy, depending on:
- the availability of funds; and
- the claims of other creditors.
Specific provisions and applicable laws may vary depending on the personal laws applicable to different religions in India. Jurisdiction concerning personal laws and the Insolvency and Bankruptcy Code lies with the civil courts and the National Company Law Tribunal, respectively, depending on the nature of the case.
(e) Which bodies are responsible for issuing child support orders in your jurisdiction?
In India, child support orders are not issued by specific bodies. Child support orders are typically awarded by family courts under the guardianship and maintenance provisions of various personal laws such as:
- the Hindu Adoption and Maintenance Act, 1956;
- the Hindu Minority and Guardianship Act, 1956;
- the Muslim Personal Law (Shariat) Application Act, 1937; and
- the Divorce Act, 1869.
Child welfare committees are statutory bodies established under the Juvenile Justice (Care and Protection of Children) Act, 2015. They are responsible for ensuring the welfare and rehabilitation of children in need of care and protection, and are not specifically empowered to issue child support orders.
If a party seeks child support as part of a divorce or maintenance proceeding, he or she must approach the relevant family court or civil court of competent jurisdiction according to the jurisdiction and applicable personal laws. The family court will then decide on the amount and manner of child support based on the facts and circumstances of the case, taking into consideration the best interests of the child.
(f) Does the child support regime vary depending on whether the parents’ relationship was formalised (eg, marriage/civil partnership/co-habitation)?
In India, the child support regime varies depending on whether the parents’ relationship was formalised, particularly in the context of a live-in relationship.
The right of a child to claim maintenance is governed by the Criminal Procedure Code, 1973 (CrCP). Section 125 allows a child, irrespective of the parents’ marital status, to claim maintenance from his or her father. It imposes a legal obligation on the father to maintain the child if he neglects or refuses to do so voluntarily.
The court may award maintenance to the child, taking into account factors such as:
- the needs of the child;
- the income of the father; and
- the standard of living that the child would have enjoyed had the couple been married.
The amount of maintenance awarded may vary depending on the specific circumstances of the case.
While the CrPC provides the legal framework for claiming maintenance, the actual jurisdiction and enforcement of the order lies with the magistrates court. The court within whose jurisdiction the father resides or where the child resides has the authority to hear and decide on the maintenance claim.
Therefore, even in the case of a live-in relationship, if a child is born and the father neglects his obligations towards the child, the child can seek maintenance under Section 125 of the CrPC from the father, regardless of whether the parents’ relationship was formalised.
(g) Can a child (adult or minor) make a direct claim for child support? If so, under what circumstances?
Under Section 125 of the CrPC, a child (adult or minor) can make a direct claim for child support in India under certain circumstances.
Section 125 provides for the maintenance of wives, children and parents. According to this provision, if a person with sufficient means neglects or refuses to maintain his wife, a legitimate or illegitimate minor child, or parents who are unable to maintain themselves, these parties may approach the court to claim maintenance.
A child (adult or minor) can directly make a claim for child support if he or she can establish the following conditions:
- Paternity: The child must be able to establish paternity – that is, prove that the person from which he or she is claiming maintenance is his or her biological father.
- Neglect or refusal: The child must show that the alleged father has neglected or refused to maintain him or her.
- Inability to maintain himself or herself: The child must demonstrate that he or she is:
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- unable to maintain himself or herself financially (in the case of an adult child); or
- a minor with no sufficient means or income to support himself or herself.
The jurisdiction to hear such claims under Section 125 of the CrPC lies with the magistrates court of the area in which:
- the person claiming maintenance ordinarily resides; or
- the person against whom maintenance is claimed:
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- resides;
- carries on business; or
- is employed.
(h) What specific considerations and concerns should be borne in mind in relation to child support where the parties have international connections?
In the context of child support, where the parties have international connections and the place of execution is in India, there are specific considerations and concerns that should be borne in mind.
One of the primary factors to consider is whether India has jurisdiction over the child support matter. Jurisdiction is typically determined by:
- the residence of the child or the parents;
- the place where the child primarily resides; or
- the applicable law regarding child support.
In India, one key statute governing child support is the Guardians and Wards Act, 1890. Section 25 of the act empowers the court to make suitable orders for maintenance and education of the child. The court can pass orders regarding the payment of child support, specifying:
- the amount to be paid;
- the manner and frequency of payment; and
- any other necessary provisions for the welfare of the child.
(i) What are the main enforcement methods to ensure compliance with child support awards? What are the typical consequences of breach?
At first instance, matters concerning child support such as maintenance and visitation arrangements are enforced through the courts by the exercise of their now legally vested rights via execution petitions. Through execution petitions, spousal rights are more or less reasserted so as to ensure the prompt and assured enforcement of these orders. However, when the parties attempt to evade such obligations, the courts have resorted to more coercive measures. For example, in Vinodchandra v Anupama (AIR 1993 Bom 23), the Bombay High Court wholly extinguished the visitation rights of the father, who had failed to pay maintenance, until the arrears were cleared. Further, contempt proceedings may also be pursued under the Contempt of Courts Act, 1971 for the wilful and deliberate disobedience and defiance of such judicial determinations, as demonstrated by the landmark decision of the Supreme Court in Rama Narang v Ramesh Narang (2006) 11 SCC 114.