• Maintenance in case of divorce after 20 years of marriage

My wife is living with her parents along with two sons aged 19 and 14 years for about a year. I had to shut down my business due to heavy losses. I am trying to revive business. I was doing a job for 30000/- (rupees thirty thousands) monthly salary. I am leaving the job this month. My wife and kids have declined to come back and live with me. 
A.  In case of divorce how much maintenance she can claim as I will have no fixed income.
B.  Is number of years in marriage also a factor in deciding maintenance.
C.  In case she doesn't agree to divorce with mutual consent what are options available.
Asked 1 year ago in Family Law from Kolkata, West Bengal
Religion: Sikh
1) court generally awards one third of husband income as maintenance . The husband income ,  lifestyle ,number of dependent a etc  is taken into account while determining maintenance 

2) in case wife does not agree for mutual consent file for contested divorce on ground of mental cruelty 

3) contested divorce proceedings take around 5 years to be disposed of 
Ajay Sethi
Advocate, Mumbai
23151 Answers
1216 Consultations
5.0 on 5.0
1. For filing a divorce patition, she shall have to show acceptable grounds,

2. You shall have to pay her maintenance as per her/your  status and also as per your average monthly net earning,

3. No. Her requirement for living modestly is the only consideration to decide about the amount bof maintenance,

4. If she does not agree for MCD, you can file a divorce petition on the acceptable ground like mental cruelty.
Krishna Kishore Ganguly
Advocate, Kolkata
12077 Answers
228 Consultations
5.0 on 5.0
A.  In case of divorce how much maintenance she can claim as I will have no fixed income.
Let she claim any amount as monthly maintenance, you have to defend yourself based on your prevailing circumstances.  You may explain your financial position as well as your economic background in detail with mention about your liabilities too. The burden will shift on her to prove your income.


B.  Is number of years in marriage also a factor in deciding maintenance.
No, atleast not in India, it is a rule prevailing elsewhere in some foreign countries including US.



C.  In case she doesn't agree to divorce with mutual consent what are options available.

You  have to try the option of contested divorce only.
T Kalaiselvan
Advocate, Vellore
13948 Answers
127 Consultations
5.0 on 5.0
Dear Querist
My opinion on your queries are as under:
A.  In case of divorce how much maintenance she can claim as I will have no fixed income.

Opinion: the maintenance will be decided as per the income and status of parties. It is also depend on the conditions as mentioned in section 125 of criminal procedure code.

B.  Is number of years in marriage also a factor in deciding maintenance.
Opinion: the court will consider all the things.

C.  In case she doesn't agree to divorce with mutual consent what are options available.
Opinion: contested divorce case can be filed against her before family court under section 13 of Hindu marriage act.
Nadeem Qureshi
Advocate, New Delhi
3522 Answers
129 Consultations
4.9 on 5.0
If you have other evidences of solemnising the marriage, that will do, the marriage certificate is not essential.  
The wedding invitation card, joint photograph and the ration card displaying the family particulars will be substantial evidence to prove the marriage. 
T Kalaiselvan
Advocate, Vellore
13948 Answers
127 Consultations
5.0 on 5.0
1) mere non registration does not affect the validity of marriage 

2) you must be having marriage photographs , wedding invitation cards . It is sufficient to prove that marriage was performed 
Ajay Sethi
Advocate, Mumbai
23151 Answers
1216 Consultations
5.0 on 5.0
No there is no difference
Nadeem Qureshi
Advocate, New Delhi
3522 Answers
129 Consultations
4.9 on 5.0
The maintenance depends upon the earning of the Husband and the wife's earning is also a key factor in deciding a maintenance. You are liable to pay maintenance to your wife and also for one son only who is 14 years old. Your another son, who has crossed the age of 18 years may not be able to get any maintenance from you.

The maintenance will be applicable from the day your wife is living separately from you and you shall pay the arrears on the basis of interim maintenance as decided by the court during the pendency of the matter, which generally decided by the court on the application of your wife under the relevant provisions of DV Act.

Number of years of marriage is not a factor in deciding maintenance. The Divorce can either be mutual or contested one. The former is easy to get, whereas the later one is lengthy process and take too much time to get a decree of divorce. It is immaterial, whether the marriage was registered or otherwise. This will not make any difference in the divorce proceedings. 
Rajinder Kumar
Advocate, New Delhi
68 Answers
4 Consultations
5.0 on 5.0
1. She can claim for the moon but you can contest her claim if she has left you without being victimized for dowry or subjected to domestic violence by you. 

2. If she is earning then also she stands disqualified from claiming maintenance.

3. The duration of marriage is not a deciding factor.

4. If she refuses mutual divorce you can unilaterally file for divorce on the basis of cruelty.

5. You must be having the photographs of marriage, which should be sufficient to file for divorce.
Ashish Davessar
Advocate, Jaipur
18061 Answers
447 Consultations
5.0 on 5.0
Number of years of marriage doesn't affect the divorce proceedings in any manner. 

If she doesn't agree for mutual consent divorce then you will have to go for contested divorce. 

Maintenance amount will be decided on grounds of amount of salary you are earning, your properties, bank accounts. Even if your salary is not fixed on an average monthly how much you earn will be taken into consideration. 


Regds, 

Adv. Payal
Payal Arora
Advocate, Pune
331 Answers
7 Consultations
4.1 on 5.0
1. No, it does not make any difference in divorce proceedings,

2. She shall have to produce some document evidencing that you two were married. The birth or achool leaving certificate of your children can be used by your wife to claim that you two were married, in absence of the marriage certificate or invitation card.
Krishna Kishore Ganguly
Advocate, Kolkata
12077 Answers
228 Consultations
5.0 on 5.0

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