• Alimony

Hello,

I am heading towards contested divorce(Hindu Marriage act). I would like to know if there is any way to minimize the alimony that would eventually be ordered by the court. I am working at US and my take home salary is $7500/month and my monthly expenses including loans total to $3000. However, if I work at India, my take home salary may be around 70000 rupees per month and my expenses including loans would amount to 40000 rupees per month. My ex-wife is a post graduate and she worked only for few months during the marriage. She is not working right now.

Can you please tell me:
1. If I am abroad, would I have to make repeated visits at various stages of the case? If so, how frequent would it be?
2. How much would be the approximate range of permanent/monthly alimony if I continue working abroad? 
3. How much would be the approximate range of permanent/monthly alimony if I come and work at India? 
4. In the case of monthly alimony, for how many months/years should it be provided? 
5. Even if I come and work at India, I intend to be back to US as soon as the case is settled. Would the court be considering my visa status and work out the alimony based on my future US salary instead of my Indian salary?
6. If I am not satisfied by the alimony ordered by the family court? Can I make an appeal to higher court? In which case would I have to pay the amount straight away or would the alimony be put on hold until a judgement is made by the higher court?
7. I have a property on my name which is under loan. Is there a possibility for the court to include this as part of the settlement?
Thank you,
Asked 1 year ago in Family Law from Madurai, Tamil Nadu
Religion: Hindu
1. No in each and every dates one need not attend the case. If your lawyer is seasoned then he can manage your absence in most of the dates.
2. 1/3 to 1/5 of your income.
3. same as above.
4. it would be provided as long as the case remains pending or as long as your wife does not remarry in the vent the court grant decree of divorce.
5. Yes, it is a possibility.
6. Yes you can challenge the order of alimony in high court.
7. In a proceeding under PWDV Act the court impose injunction on your immovable property. It can even let your wife take possession of the same of the purpose of her residence.
Devajyoti Barman
Advocate, Kolkata
5244 Answers
54 Consultations
4.9 on 5.0
1) you can engage a lawyer to appear on your behalf . Your presence would be required during trial 
2) alimony is at discretion of court 
It depends upon number of factors your income , wife income , standard of living , years of marriage etc 
3) generally maintenance is one third of your income after taxes 

4) your Last  3 years salary would be taken into account in determine mIntenance 

5) you can file appeal against order passed by family court but will have to comply with orders passed by trial court till appeal is disposed of 

6) wife has no share in husband property 
Ajay Sethi
Advocate, Mumbai
23337 Answers
1220 Consultations
5.0 on 5.0
Hi, when ever your presence is very much essential before the court that  stage you must present before the court i.e at the stage of evidence and at the time of cross examination.

2. For maintenance is concerned there is no hard and fast rule but while considering the maintenance your salary social status will be considered, however as per the latest Supreme Court ruling  says that well qualified wife will not be entitled for maintenance. but it will be depending upon the facts and circumstance of the each case.

3. If you want to challenge the order passed by the trial judge with regard to maintenance you have to file Writ petition before the Hon'ble High Court.

4. Wife has no right to claim in the share of the husband property during his life time.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1. No. You can issue POA in favour of any of your relative to attend the Court and act for and on your behalf. You shall have to be present when you will be called for giving evidence,

2. It will be within the range of 1/5th to 1/3rd of your net monthly earnings less your mandatory expenses,

3. Your Advocate should please that the amount should be decided based on your prospective monthly earnings had you been posted in India,

4. Through out her life or till she marries or takes up employment/starts earning of her own,

5. Your Advocate should plead that the alimony should be fixed considering your earning in India had you been posted in India,

6. You can file an appeal before the Appellate Court and pray for a stay on the lower court order till the Appeal is disposed of,

7. Your wife can not have any claim on the said property but you can pray before the Court to deduct the EMI amount from your net monthly earnings while deciding the alimony amount.   
Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
5.0 on 5.0
you can give power of attorney to your parents and can be avoid repeated visit. There is no fixed formula can be laid for fixing the amount of maintenance. It has to be in the nature of things which depend on various facts and circumstances of each case. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay, having regard to reasonable expenses for his own maintenance and others whom he is obliged to maintain under the law and statute.A wife who is well qualified and is capable to earn cannot sit idle and claim maintenance from her husband. While calculating the maintenance the following things to be considered.
1.	Total monthly Income of both Husband as well as Wife.
2.	Number of children’s
3.	Number of years of marriage.
4.	In case of the Income of wife is 50 % of Husband's salary then she do not get maintenance.
5.	In case if she has to take care of her child also then in such cas maintenance amount would be more.
6.	If the wife is well qualified and well settled then percentage of maintenance would be less but yes now a day maximum cases goes in favour of wife only.
7.	Or else if you do not want to share your salary and property then you convince your wife for a permanent alimony in which whatever she will demand you have to pay her in one attempt then she will not be able to claim for any other thing in future. But all this you do it as per the court procedure to avoid in future problem.
8.	As regard to distribution of you salary between three wives, I would like to inform you that yes you have to pay all three wives maintenance but again I will repeat the point no. to 4 again.
9.	One important point while divorce neither Wife nor the Husband can claim property of someone else.

Interim maintenances: In India, family courts can pass an interim order on maintenance to a spouse when she is separated from the other spouse with minor marital conflict, with a decree of judicial separation or if one of the spouses has applied for divorce. Interim maintenance order remains valid till the permanent maintenance order is given by the court during the divorce. So, a lawsuit for divorce or judicial separation is not mandatory to apply for monthly maintenance.Looking at the burden on the husband to provide maintenance to his wife even in cases where the wife is well educated and capable enough to earn for her living

If you are not satisfied in court orders then you can approach the high court by way of filing appeal.

It must be noted that neither the husband nor the wife can make claims on the property (residential or otherwise) of the other during divorce. 
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
1. The presence of your lawyer in the court shall suffice for all legal and practical reasons. The only time you may have to turn up in the court is during your witness deposition. On all other hearings your lawyer's presence will suffice.

2. The amount of alimony is to be decided by the court having regard to the salary of husband, qualifications of wife, lifestyle led by wife and husband, conduct of husband, etc. Nobody can foretell what it would be. Ordinarily it is around 1/3rd of the net salary of the husband.

3. Monthly financial support, if ordered by the court, is to be provided as long as the wife does not remarry.

4. If you are working in India the court will consider your present salary only. Future salary is not considered.

5. Being aggrieved by the order of the lower court you can always challenge the same in the higher court. The corrective process can be carried up to the Supreme Court of India. Whether or not a stay will be ordered during the challenge is the prerogative of the court.

6. Under the Indian law a wife has no share in the property of her husband. So the property owned by you cannot be considered by the court.
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0
q. Yes, more or less.
2. Permanent alimony is a lump sum depending on your income
3. Hire detective.
4. It is difficult to find out your salary unless your employer informs her.
5. Yes , public hospital doctors are appointed.
Devajyoti Barman
Advocate, Kolkata
5244 Answers
54 Consultations
4.9 on 5.0
1) you will have to come to India during trial at the stage of evidence 

2) alimony is at the discretion of court 

3) yiu can come to know of your wife remarriage or whether she is working from common friends 

4) it is not possible for your wife to know your exact salary when you are working abroad 

5) why you need your wife medical examination ? You have to apply to court in this regard 
Ajay Sethi
Advocate, Mumbai
23337 Answers
1220 Consultations
5.0 on 5.0
You can file application for medical examination before the court.Once the permanent or monthly maintenance charge is fixed then never look the future salary details. It is difficult to find out your salary if you are not disclose to any one. You have to check out with help of detective agency or other source whether she is working or not?
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
1. There is no need to execute a POA, but you are free to execute one. As I said earlier, you will have to come only for your deposition.

2. The permanent alimony is not decided as a percentage of the salary of the husband.

3. People avail the services of detectives to cull out this information, you too can do this. A detective can also find out your salary even if you are residing abroad.

4. The court will order medical tests, if any, only in a government hospital.
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0
1.No. you need not come to India to attend your case once your POA holder takes care of it. However, it is always suggested to monitor court proceedings and ensure that your Advocate is attending the hearings,

2. No. It will not be loke monthly maintenance. It will be lumpsum amount which the Court will consider adequate for maintaining herself for the rest of her life, 

3. That you shall have to keep track of in your interest. You can engage a detective agency for that purpose,

4. It will be difficult for them to find out your exact earnings in USA since your employer is not bound to comply with the order of India court directing them to submit your latest yearly salary statement,

5. In India medical report from Govt Hospital or Doctor working with govt Hospital is accepted by the Court. You can submit report from USA Doctor and ask your Advocate to file application for waiving/perdoning your absence on medical ground, if need be.
Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
5.0 on 5.0
Hi, Power of attorney holder can represent the case on behalf of you provided when the matter comes for evidence or mediation your present is very  much necessary and Power of Attorney can't depose on behalf of you.

For clarity i will quote the decision of the Madras High Court under similar circumstance.
Nathiya Faru vs Rojan Roux on 26 March, 2009
       

  
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 26.03.2009

CORAM:

THE HONOURABLE MR.JUSTICE S. PALANIVELU

C.R.P.(PD).No.163 of  2009 
and M.P.No.1 of 2009

Nathiya Faru				        ... Petitioner
								
Vs.

Rojan Roux		                  ... Respondent


 	Civil Revision Petition is filed under Article 227 of the Constitution of India against the decree and order passed in I.A.No.543 of 2008 in M.O.P.No.6 of 2008 dated 6.11.2008 passed by the Family Court at Pondicherry 
  			
		For Petitioner	  : Ms. D. Geetha

		For Respondent   : Mr. Anbarasan
		
	 								
					  ORDER	
The petitioner is mother of one Roux Pauline who is wife of the respondent. Both of them have got three children. Their marriage was solemnized on 24.04.2000. After the marriage, both the spouses moved to France for eking out the likelihood. All the three children were born in France and their names have been entered in the Passport of the respondent and without the help and assistance of the respondent, the children could not travel out of France.

2. Due to certain misunderstandings, the respondent filed M.O.P.No.6 of 2008 on the file of the Family Court, Pondicherry for dissolution of marriage and the same is pending. Since the children are in France, their mother has necessarily to be in France itself. She could not come over to Pondicherry for every hearing of the case and hence her mother has come forward with a petition for permission to represent on behalf of her daughter Roux Pauline as Power Agent and to defend the case.

3. In the counter affidabvit filed by the respondent, he has stated inter alia that there is no necessity for grant of permission to the petitioner to defend her daughter, since she is able to come over to Pondicherry to defend the case.

4. After hearing both parties, learned Family Court Judge, Pondicherry turned down the request of the petitioner, by observing that in the Family Courts, the appearance of the parties are inevitable, in view of the duty cast upon the Family Court to make every endeavour to settle the matter by doing counselling work.

5. Learned counsel for the petitioner would strongly contend that the Court below has carried out misreading that the names of the children have been entered into the mother's passport, which is a wrong conclusion. By an earlier order, the Family Court in I.A.No.852 of 2008 dated 9.10.2008, directed the respondent to produce xerox copy of his passport for perusal, which shows that in the passport of the respondent the names of three children have been entered besides their photographs.

6. It is her further contention that even though the provisions of the Family Courts Act prohibit appearance of legal practitioner on behalf of a party before the Family Court, still any person, not having legal profession, may be permitted to represent on behalf of a party in special circumstances. It is also urged that for the effective hearing of the case, when the presence of a party before this Court is indispensable, the Court may direct him to be present before the Court and it is the duty of the party to make himself to appear before the Court as and when it required.

7. Arguing on the other side of the coin, the learned counsel for the respondent would submit that there is no infirmity in the order passed by the Court below either factually or legally, since no Power of Attorney can appear on behalf of his principal as witness to bring the facts before the Court which are expected to be within the personal knowledge of the principal. It is his further contention that there is no impediment for the wife to appear before the Court for hearings as observed by the Court below and that the presence of the parties themselves before the Court in the matrimonial cases would be available for amicable settlement of the matter.

8. In support of his contention, learned counsel for the petitioner would place reliance upon two decisions of this Court. In 2003 (1) MLJ 182 [Pavithra rep. By P.O.A S. Rajkumar Kalingarayar v. Rahul Raj], this Court, while discussing this subject in extenso, has observed that there is no embargo for a person interested to defend a party in the matrimonial case before the Family Court and the appearance of the party can arise only at the time of particular stage of the case. The operative portion of the judgment goes thus:

"14. O.3, Rule 1 of C.P.C. Empowers a party in a suit or proceedings to be represented by a pleader, but so far as the proceedings in the Family Courts are concerned, the right of representation by the pleader does not exist. The operation of O.3, rule 1 is subject to any law for the time being in force. In addition to the said exclusion in the code, Sec.13 of Family Courts Act prohibits the operation of O.3, Rule 1 to the extent that the case being represented by the legal practitioner. The recognised agent appointed under O.3, rule 2 stands on a different footing from pleader. However, recognised agent cannot be a legal practitioner. The embargo on the appearance of legal practitioners should not be extended to recognised agent. There is no prohibition in the Act or Rules to a petition being filed by an authorised agent who is not legal practitioner. The recognised agent can prosecute or defend or represent until Family Court passes specific order directing the party to appear in person, depending upon the facts and stage of the case."

9. Learned counsel for the petitioner also garnered support from a decision of this Court in 2003 (2) CTC 166 [ Dr. K. Malathi v. Dr. S. Rajasekaran], in which it has been observed that since the appearance of legal practitioner before the Family Court is barred by statute, there is no stumbling block for the Court to permit any person to represent a party in a matrimonial matter. The following is the relevant portion of the judgment "10. It is calear that in the light of Section13 of Family Courts Act, Order 3, Rule 1 of Section 132, CPC, no party to the Family Court seek dispensation once for all, to avoid personal appearance and claim to have the adjudication through a recognised agent on account of the peculiar provisions of law governing the adjudication in the Family Court. Undoubtedly, from the stage of hearing, after the appearance of the either side to the proceedings, considering the peculiar and sensitive nature of the lis, personal feeling, behavioral attitudes to be assessed by the Court, it is, but proper that appearance of the parties become necessary. To put it clear that though the parties are at liberty to present through an authorised agent other than the legal practitioner as contemplated under Order 3, Rule 1 CPC, at the stage of examination/hearing, it is for them to appear in person."

10. Learned counsel for the respondent cited another authority of this Court in 2008 (1) MLJ 354 [Sakunthala v. Anandarajan and another] in which a settled principle, that is to say, a Power of Attorney holder can appear as witness only in the capacity as a witness in his personal capacity and wherever knowledge he has about the case, he can state orally and he cannot appear as witness in the capacity of that party. While adverting to this position, the learned counsel for the respondent also says that since the affairs which are more specific and intimate between the spouses could not be expected to be spoken by the mother of the wife and her evidence, even if it comes to record, may not be useful. It is the crux of his contention that the mother at any cost, could not represent her daughter. This court in the above said decision has held as under:

"9. The Supreme Court has considered the judgment of the Rajasthan High Court in Shambhu Dutt Shastri v. State of Rajasthan AIR 1998 Raj. 185, wherein it was held that the word "act" under Order 3 Rule 2, C.P.C. Does not include the act of power of attorney holder to appear as witnesses on behalf of the party. It was further held that the power of attorney holder can appear only as a witness on behalf of the party in the capacity of that party. It was further observed that even if the plaintiff is not able to appear before the Court, the plaintiff is not left in the lurch. There is a provision for appointment of Commissioner for reording evidence under C.P.C."

11. As far as the permission to be granted to the Power Agent is concerned, the general principles holding the field are discussed in Sakunthala's Case (supra). Insofar as the proceedings in matrimonial cases which are being conducted under the special statutes, Family Courts Act are concerned, the peculiar circumstance available is that no legal practitioner is allowed to appear for parties. In such circumstances, if any of the party to the proceedings is prevented from appearing before the Court and which cause is satisfactory to the Court, there is no legal impediment to grant permission in this regard. The decisions of this Court have thrown much light on the subject, which go to show that the parties are at liberty to present through the authorised agents on various hearings and as and when the court is of the opinion that the presence of the party is required for the purpose of counselling or for possible or amicable settlement, then he may be directed to appear before the Court to proceed further.

12. As far as appearing as witness on behalf of the principal is concerned, the principles laid down in Sakunthala's case (Supra) have to be followed. At the time of the examination of the parties, it is for the Court to follow the procedures and guidelines as formulated in the above said decision and other decisions on this point.

13. As for the hearings of the case earlier to the commencement of the trial, granting permission to the petitioner to represent her daughter, would meet the ends of justice. Taking note of the peculiar circumstances available here, this Court is of the considered view that the request of the petitioner has to be heeded to.

14. In such view of this matter, the order impugned, passed by the learned Judge, Family Court, Pondicherry is not sustainable, which is liable to be set aside and it is accordingly set aside.

15. In fine the Civil Revision Petition is allowed. No costs. Connected M.P. is closed.

ggs To The District Munsif Court cum Judicial Magistrate, Nannilam
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
First of all you should understand the concept that take home salary is after the deductions.


1. If I am abroad, would I have to make repeated visits at various stages of the case? If so, how frequent would it be?
If your divorce case is in the family court, you may have to attend  the court on each and every hearing. alternately, you may execute a special power of attorney in favor of your close relative who can represent you in your absence.


 2. How much would be the approximate range of permanent/monthly alimony if I continue working abroad? 
3. How much would be the approximate range of permanent/monthly alimony if I come and work at India? 
For both the above questions, the answer is, it will depend on how much she claims, the documentary evidences she produces to prove your income for claiming alimony and the defence you take to challenge her claim.  First of all she has to apply for maintenance, it is not automatic.


4. In the case of monthly alimony, for how many months/years should it be provided? 
If monthly maintenance has been ordered by court, in the event of an award post divorce, it shall be for life or ill the time she gets married again with another person.



5. Even if I come and work at India, I intend to be back to US as soon as the case is settled. Would the court be considering my visa status and work out the alimony based on my future US salary instead of my Indian salary?
As I said, the alimony or monthly maintenance amount purely depends on proof, she has to prove, so better not to allow her to have an access to your personal information.



6. If I am not satisfied by the alimony ordered by the family court? Can I make an appeal to higher court? In which case would I have to pay the amount straight away or would the alimony be put on hold until a judgement is made by the higher court?
If the trial court passes an order for maintenance and it is not acceptable to you, an appeal can be preferred before high court with an application seeking to stay the operation of the order by the trial court. 


7. I have a property on my name which is under loan. Is there a possibility for the court to include this as part of the settlement?
The property in your name cannot be claimed by her, there is no rule or law in this regard.  She is not entitled to claim any share in your property. 
T Kalaiselvan
Advocate, Vellore
14138 Answers
127 Consultations
5.0 on 5.0
1. If I give power of attorney, would I be correct in assuming that I may have to come to India once in 6 months or so?
If you have executed a power of attorney to someone to represent you during your absence, you may not be required to attend the court on all or any dates of hearing except for deposing your own evidence and subsequent cross examination.  


2. In case of permanent alimony, would the settlement amount just be 1/3-1/5 of (one year salary - mandatory expenses) or would this resulting amount be again multiplied by certain number of years?
The one time quit settlement called alimony is not based on any calculations as you have mentioned, it is purely a bargain and settlement would on the negotiations from both the sides. 


3. If am supposed to pay monthly alimony, how can I find out if my ex has started working or has married someone?
You only have to follow the issue through your own sources.



4. If I work abroad, is there a possibility for the opponent to find out my exact salary? If not would it help in reducing the alimony?
You dont let her have an  access your personal details including your employment and salary details.  You may even instruct your close friend to not to divulge any details of your employment if she approaches them.  By doing this you may challenge her claim asking her to prove the sources and income.


5. If need arises, does the court engage prescribed doctors to conduct medical examinations or can I produce reports from doctors I know?
Neither court nor anyone can force you to undergo medical examination against your wishes, if you do not want to  go ahead with the said tests, you can refuse it. 
T Kalaiselvan
Advocate, Vellore
14138 Answers
127 Consultations
5.0 on 5.0

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