Why Supreme Court Benchmark Of 25% Maintenance For Women Is Deeply Problematic?

Posted by Anil Kumar
April 23, 2017

Self-Published

It has been often reported in media that men fight the alimony cases tooth and nail in courts for years. We rarely come across arguments from men’s point side in the issue of alimony. Only women centered discourse has not helped and court cases run for years.

Recently, media is reporting about a Supreme Court judgement that a woman should get 25% of husband’s salary as alimony and many have claimed that it is a benchmark set by the Supreme Court.

Now, let’s look at what all can be the reservations for such a benchmark from men’s point of view. This benchmark can be problematic not only for men, but also it can increase pendency of cases.

Some background

In 2012, Government wanted to pass a law to give 50% of a man’s property to his wife during divorce. This included the property acquired by the man before, after marriage and the property that a man has inherited or likely to inherit. Women’s self acquired or inherited property is considered as her individual property, which will not be divided.

Needless to say, such a one sided bench mark led to large scale protests and many TV debates between feminists and men’s activists. This proposed law was subsequently rolled back.

The need of the hour is to simplify the guidelines related to alimony and child support rather than coming up with thoughtless random benchmarks.

Child Support versus maintenance

The Courts or law commission should have first defined a benchmark for child support instead of alimony for wife. They have created confusion by skipping this important step.

In many developed countries in the world, there are benchmarks for quantum of child support that can be ordered by a court, if a couple are separated. These guidelines mention the percentage of child support that a man or a woman have to pay to the custodial parent. The benchmarks also mention the percentage of salary a man has to pay if he has two or three or four children.

These benchmarks make it easy for the couple to sort out most of their disputes during the mediation without going through lengthy process of litigation. This saves them costs of litigation and courts also save their time.

However, in India the courts often worsen the situation for themselves and the litigants. Their benchmarks are not comprehensive. They seem more like judgments given based on whims and fancies rather than careful deliberations on various scenarios and consequences.

In this particular judgement, the court has clubbed child support and maintenance to wife together rather than separately creating benchmarks for the percentage of salary a man needs to pay as child support for one children, two children and 3 or more children.

What if a couple have no children? Will the woman still get 25% of the salary of the husband as maintenance? If not, then what happens to the benchmark? This adds to the confusion.

Wild interpretations of this benchmark

Lets accept the fact that Indian courts are understaffed and judges are overloaded. Court cases go on for years. The mediation process in family courts is not effective. There is a concern about overall quality of judgments by lower courts. People keep appealing to higher courts after a judgement and it has contributed to huge pendency.

The lower courts can wrongly interpret this Supreme Court judgement and make a man pay 25% of his salary to wife even when he has no children.

As this benchmark does not have any provisions for exceptions, a young woman can apply for divorce within 2 months of her marriage and walk away with 25% of husband’s salary every month. This will lead to angry men protesting in streets and dragging the women to court for years, while they try hide their income.

Apart from children, the duration of marriage must be a factor in determining the maintenance.

In developed countries, the child support continues until the child becomes adult. However, the maintenance to wife is limited based on duration of the marriage.

For example, if a woman is married for 2 years before getting separated and she has no child, then she may get monthly maintenance for 2 or 3 years only during which she is expected to find a job to be independent. The longer the duration of marriage, the longer the duration of monthly maintenance.

Maintenance to wife is Patriarchal

In today’s age, we are talking about eliminating patriarchy and gender roles. It is a bit regressive, if the courts continue to expect the man to become a provider for a woman. We are allowing them to perpetuate the gender stereotypes now in the name of women’s rights.

Separation and divorce are mostly impacting younger generation of men and women. So, while creating any law or benchmark, their interests have to be kept in mind.

The courts have to stop expecting the husband to pay maintenance to the wife, especially when the duration of marriage is short and there is no child  in the marriage.

Women are breaking many gender barriers and they must not depend on the man for maintenance. They should seek a job and build a career. The husband can be ordered to help her find a job or get higher education or some vocational training instead of being told to provide for her.

It is much more empowering for women, when courts hold the man responsible for making the woman independent instead of forcing him to pay monthly maintenance.

Lack of clarity about loss of job and earnings

While some men deliberately quit jobs to avoid paying child support or maintenance to wife, we cannot ignore genuine cases where the man faces problems in career and end up losing job.

The court should have deliberated up on this kind of special cases where a man loses job and is unable to pay the amount of maintenance ordered. Today, courts do not consider the plea of a man about loss of job.

Many courts have even gone to the extent of saying, “beg, borrow or steal, pay maintenance.” As per law, it is a crime if a man defaults on payment of maintenance to wife and children. Many men are sent to prison for the same every year.

The solution for this is to create a fund, which can be used as a buffer for dealing with the situations, where a man loses his job. The child support can be paid from this buffer until the man is able to find a job again.

 Need for a benchmark for one time Alimony

In the cases of divorce, one can opt for paying monthly maintenance or one time alimony to wife.

While the courts are now showing inclination towards creating benchmarks for child support and maintenance to wife, the need of the hour is to also create such benchmarks for one time alimony based on duration and number of children in a marriage.

Any benchmark on one time alimony will not impact the woman or the child in case the man loses his job or career. A woman can opt for either monthly maintenance or one time alimony. Without such a benchmark for one time alimony, the women often make exorbitant demands, misuse laws like section 498a and men keep dragging them around courts for years for alimony.

 A comprehensive policy about marital disputes

In India, the divorce rate for younger age groups is between 5% to 7%. It is expected to grow. Every year, almost 10 lakh men and women are impacted by it.

The need of the hour is a comprehensive policy about how to deal with these disputes. It has to be drafted by the law commission in consultation with various stakeholders and it must take into account all kinds of scenarios in a dispute.

This policy should also aim at reducing litigation and make it easier for settlement of marital disputes without going through lengthy process of court cases and appeals. This will save people time and money. It will reduce the pendency of cases for the courts. This is what works in Western countries, where more than 80% of matrimonial disputes get solved out of court by mediation and only a few go for trial.

Men are already angry in social media about this benchmark and their trust on the court system has nosedived. They have not seen courts do anything significant for child visitation and custody for fathers. When the overall feeling is that courts are anti-male, then it will not help the men, women or the courts. It will only increase pendency of cases and create social unrest.

 

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