Everything you need to know about Interim and Permanent alimony

The term "pendente lite" means pending the litigation. Thus, when any suit is filed in any Court under the Act, the parties are given a right to apply for alimony, pending the hearing and final disposal of that Suit.

The alimony thus can be asked under the Parsi Act only when a Suit is either filed, or pending or disposed off but not otherwise. The alimony pendente lite or the alimony pending the suit can be subdivided further into two, ad interim alimony and interim alimony.

Interim and ad interim alimony

In cases of die hard urgency, the Court can grant the urgent and immediate relief. It is called as an ad interim relief. If urgent and immediate relief is granted without hearing the other side, it is called as ex parte ad interim relief. If it is granted after a cursory [prima facie) hearing, it is still called as ad interim relief but not ex parte (without hearing other side).

Another kind of relief granted, pending the hearing and final disposal of the Suit, is the interim relief but it is always after hearing all the parties. If Court decides to refuse the interim relief, it will vacate the ad interim relief - if already granted but if it decides to grant the interim relief, it will continue the ad interim relief - if already granted. Of course, when no ex parte relief is given, there is no question of continuing it or vacating it. In that eventuality, it will be the interim relief after hearing the parties at first instance. Whether it is an ad interim or interim relief, it will always be the relief, pending the hearing and final disposal of the suit. Thus, alimony may be either ad interim alimony or interim alimony but it will always be the pendente lite (pending the Suit) alimony.

Permanent alimony

As has been made clear the question of alimony arises only after the marriage breaks down and the parties are in the Court. Thus, by its very nature, the alimony is pendente lite. However, the Courts are invested with power to grant alimony even after the suit is finally determined and nothing is pending before the Court. The alimony even after the suit is finally determined is called as the Permanent alimony in contradiction to alimony pendente lite.

Powers to grant alimony pendente lite

Section 39 of the Act invests powers with the Court to grant (1) expenses of the Suit and/or (2) weekly or monthly sums either (A) to Wife or (B) to Husband. Section 39 is amended in 2002 to require the Courts, as far as possible, to dispose of the Application under Section 39 within a period of sixty days. No doubt it is a welcome relief to the litigant, particularly when it is an open secret that litigation takes a long time, if not the entire lifetime. Section 39 requires that:

1. A Suit under the Parsi Act should have been filed.

2. The said suit should have been filed either by the husband or wife.

3. It should appear to the Court that (a) husband or (b) wife has no independent income for (i) his/her support or (ii) to bear the expenses of the Suit.

4. The Court can grant the (A) Expenses of the Suit and/or (B) the alimony in the form of (1) weekly or (2) monthly sums.

5. The payment of weekly or monthly sums will be pending the hearing and final disposal of the suit. In other words, it is the alimony pendente lite.

6. The alimony pendente lite will be granted only after having regard to (1) Plaintiff's own income. (2) Defendant's income. (3) What is reasonable, fair and proper according to the Court.

7. As far as possible, the Application under Section 39 for (a) expenses of the Court and/or (b) alimony pendente lite should be disposed of within six months from the date of service of Notice on the wife or husband as the case may be.

Powers to grant permanent alimony

Section 40 of the Act invests powers in the Court (1) to grant alimony even if the Suit is not pending in any Court for hearing and finals disposal and (2) it has power to grant it (permanent alimony) forever, perpetually or permanently until it is modified by the court on the grounds specified in the Act. The Order of granting alimony forever and perpetually, after Suit is finally disposed of, in the legal phraseology, is called as the Permanent Alimony.

Section Sub-section (1) of Section 40 of the Act requires that:

1. Only the Court exercising jurisdiction under this Act can pass the order of permanent alimony.

2. The Court can grant permanent alimony either (a) at the time of passing the Decree or (b) at any time thereafter.

It means the Court can grant permanent alimony only in the suit, which is pending or disposed of. Necessarily, it means that the Court cannot grant permanent alimony if no suit is filed, pending or disposed of.

3. The Application must be made for permanent alimony (either by wife or by husband) to the Court exercising the jurisdiction under this Act. It means the Court, suo moto i.e., on its own motion, cannot grant the permanent alimony.

4. The permanent alimony can be for maintenance and support of wife or husband as the case may be.

5. The permanent alimony can be in the form of (a) gross sum or (b) monthly sums or (c) periodical sums.

6. The permanent alimony cannot be for the term exceeding the life of the Plaintiff.

7. The permanent alimony will be granted only after having regarded to:

(a) Defendant's income

(b) Defendant's other property, if any

(c) Plaintiff's own income

(d) Plaintiff's other property, if any

(e) The conduct of the parties

(f) Other circumstances of the case and

(g) What is just and reasonable according to the Court?

8. If it is necessary, the Court will secure the payment of permanent alimony by levying 'Charge' on the movable and/or immovable property of the defendant.

Sub-section (2) of Section 40 requires that:

i. Either Husband or Wife can make the application to the Court after the order of permanent alimony is passed by the Court.

ii. Such Application can be made only on "changed circumstances."

Although nowhere it is defined or explained as to what "changed circumstances" means, nevertheless, Sub-section (3) enumerates some of the grounds which can be treated as "changed circumstances" so as to enable the Court to cancel the Order of Permanent alimony granted by it earlier.

iii. The changed circumstances may be of husband or wife.

iv. The Court should be satisfied that it is necessary to vary, modify or rescind the Order.

v. The Court may vary, modify or rescind the Order of permanent alimony passed by it earlier.

vi. It is for the Court to decide in what manner the Order of permanent alimony may be altered or modified. This will be clear from the express language of the sub­section, which says that Court can pass order in such manner, as it may deem fit and proper.

Sub-section (3) of the Act lies down as to when the order of permanent alimony can be cancelled it lays down that:

A. The Court should be satisfied.

B. The satisfaction of the Court should be that:

i. The party in whose favour the order of permanent alimony is passed has remarried.

ii. If the spouse in whose favour the order of maintenance is passed, is woman and if she does not remain chaste.

iii. If the spouse, in whose favour the order of maintenance is passed, is a man he too should not indulge into such sexual relations.

It only means that one spouse should not be burdened with the expenses of the other spouse who is enjoying sexual life.

C. The other spouse who is called upon to pay permanent maintenance can make Application to the Court, which passed the order of permanent alimony for varying, modifying or rescinding the order of permanent alimony passed earlier.

D. Upon such Application by the aggrieved spouse, the Court can vary, modify or rescind the order of permanent alimony or may pass such other order as it may deem fit.

E. The Court while passing the order upon the Application of the aggrieved party to vary, modify or rescind the order of permanent alimony can pass the order in the manner it may deem just.

Trustee of wife, if any, can take alimony

Section 41 of the Act, takes extra care for the women in whose favour the order of permanent alimony is passed inasmuch as it allows the Guardians or the trustees of the wife to take alimony on her behalf. Section 41 lays down that:

1. Court can pass the Order in exercise of jurisdiction vested in it under Section 41, in all cases wherein it has passed the Order of Permanent Alimony.

2. The Court can direct the amount of alimony to be paid to (a) wife herself or (b) Trustee on her behalf or (c) Guardian on her behalf.

3. The Court must approve the Trustee who has to receive the amount of alimony on wife's behalf. It means that anyone and everyone cannot claim to be the Trustee of the woman in whose favour the Order of permanent alimony is passed and who has to receive amount of permanent alimony in pursuance of the Court Order.

The Court should be satisfied about the honesty and trustworthiness of the person claiming to be the Trustee.

4. The Court is vested with the powers:

To appoint the Guardian who can receive permanent alimony granted by it to the wife.

In case of:

(a) Insanity

(b) Unsound mind

(c) Physical disability

(d) Extremely old age

(e) Sick and weak - who cannot attend to personal affairs. OR

(f) Such other cases

B. While making appointment of Guardian, Court should consider (i) interest of wife and (ii) interest of justice.

C. The Court can suo moto, i.e. or on its own motion, appoint a guardian or can appoint such guardian on the Application of the proposed guardian.

D. On appointment of Guardian, the Court can direct the Defendant to make payment of maintenance to the Guardian appointed by it.

5. The Court is also vested with powers to make a new appointment of Guardian, notwithstanding the fact that such a guardian was already appointed by it.

6. However, the Court should be satisfied that it is expedient to appoint another guardian in place of earlier one.

It may become expedient or necessary to appoint another guarding because the earlier guardian is:

(а) Dead

(b) Unable to act as guardian for personal reasons

(c) Found unfit to be continued as the guardian

(d) Insolvent or for

(e) Such other reasons.

7. While making the appointment of guardian and giving direction of making payment of permanent alimony, the Court is further vested with powers to impose any terms and/or restrictions, as it may deem fit and proper on the facts and circumstances of the case. For example, the Court may impose conditions that:

i. The amount of permanent alimony may not be put in a private bank.

ii. It may always be put in the nationalised bank.

iii. The amount should be apportioned in such a way that certain amount is used for education.

iv. Some amount should be deposited in Fixed Account for utilizing it for buying or taking on lease the house

v. Certain amount is kept in balance so as to repay the bank installment towards Housing Loan

vi. Etceteras

Case laws

1. Maintenance Proceedings are not to punish a person for his past neglect but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have moral claim to support. It is a measure of social justice specially enacted to protect women and children to provide speedy remedy for supply of food, clothing and shelter. It gives effect to the fundamental rights and natural duties. Husband has to place sufficient material to rule out that the amount she earns is not sufficient to maintain her.

2. Wife had cultivating land and living in husband's House. Held it was sufficient to reduce the amount of maintenance

3. It is true that express order with reasons for awarding maintenance from the date of appointment is necessary but no special reasons are required.

4. The Court has discretion in awarding maintenance and alimony.

5. The Court has power to grant permanent maintenance at the time of or later on after taking into consideration the financial condition of the husband. In the instant case, the Court granted Rs. 4000/- towards maintenance of two daughters with liberty to approach the Court at the time of marriage.

6. The Court granted payment of Rs. 700/- at the time of passing the decree for divorce and stipulated that in case of default, appellant would be entitled to have it recovered by arrest and detention in prison.

7. Wife consenting to give up her permanent alimony. It was even incorporated in the Consent Order. However, she is not barred from claiming it.

8. While granting alimony, the Court will consider wife's own property, husband's ability and conduct of the parties.

9. The Court can grant lump sum by way of permanent alimony.