Follow us on:
Published on: May 25, 2025
Mutual consent divorce is often considered the least acrimonious way for a couple to end their marriage. But even in such consensual separations, financial matters—particularly maintenance and alimony—remain crucial. Whether you’re the spouse seeking support or the one expected to provide it, knowing your legal rights under Indian law is essential.
In this comprehensive guide, we will cover:
What is mutual divorce under Indian law?
Meaning and types of alimony/maintenance
Legal provisions under Section 125 CrPC, Hindu Marriage Act, Special Marriage Act
Key Supreme Court judgments and their analysis
Taxability and enforceability
Strategic legal tips for NRIs and women seeking maintenance
Mutual divorce in India is governed by Section 13B of the Hindu Marriage Act, 1955 (for Hindus) and Section 28 of the Special Marriage Act, 1954 (for inter-religious couples). The key requirement is that both spouses agree to end the marriage and have been living separately for at least one year.
In such cases, financial arrangements such as maintenance or alimony must be mutually settled—preferably through written agreement—before filing the second motion petition in court.
Although often used interchangeably, alimony and maintenance have distinct legal meanings:
Maintenance is regular financial support—monthly or periodic payments—to the spouse who is unable to support themselves.
Alimony is typically a one-time lump sum settlement paid at the time of divorce.
These financial obligations are not limited to wives. Husbands can also claim maintenance under certain legal circumstances.
Section 125 of the Criminal Procedure Code (CrPC)
Provides for monthly maintenance to wives (including divorced wives), children, and parents who are unable to maintain themselves.
Section 24 & 25 of the Hindu Marriage Act, 1955
Section 24 allows either spouse to claim maintenance during the pendency of proceedings.
Section 25 enables permanent alimony after the divorce.
Section 36 & 37 of the Special Marriage Act, 1954
Equivalent provisions applicable to inter-faith or civil marriages.
Muslim Women (Protection of Rights on Divorce) Act, 1986
Special provision for divorced Muslim women, including rights to mehr, maintenance, and provision during iddat.
Facts: Husband delayed paying maintenance; interim relief was contested.
Ruling:
The Supreme Court issued comprehensive guidelines on maintenance and alimony, including:
Standardized affidavit formats to declare income/assets
Timelines for interim and final maintenance
Avoidance of multiplicity of proceedings across courts
Impact: This case became a landmark for procedural clarity in maintenance matters.
2. Bhuwan Mohan Singh v. Meena (2015) 6 SCC 353
Observation:
“Right to maintenance is a facet of human rights and the constitutional guarantee under Article 21.”
Analysis:
This judgment emphasized the urgency of providing timely financial relief to the dependent spouse and condemned procedural delays.
Ruling:
Maintenance should not exceed 25% of the husband’s net salary in most cases, unless special circumstances exist.
Significance:
This became a benchmark ratio for calculating monthly support, especially in metro cities.
In mutual divorce, spouses often opt for a one-time full and final settlement, waiving future claims. The settlement must:
Be reasonable and not against public policy
Be recorded in the divorce petition and decree
Not be vague or conditional
Tip: Always include a clause regarding non-revision and enforcement of alimony through execution petitions, if unpaid.
Yes, if no maintenance was agreed or mentioned in the mutual consent decree, the wife (or husband) can later file a petition under Section 125 CrPC or other applicable laws.
However, if the decree clearly states that maintenance has been paid in full, such claims may not stand unless:
There was fraud/coercion
The spouse later becomes destitute
NRIs (Non-Resident Indians) seeking or defending mutual divorce should consider:
Jurisdiction of Indian family courts for maintenance claims
Enforceability of Indian maintenance orders abroad
Provisional seizure of foreign assets in maintenance default
Indian courts can issue Look-Out Circulars (LOCs) and seize passports for non-compliance.
Is Alimony Taxable in India?
Monthly maintenance received is taxable in the hands of the recipient under “Income from Other Sources.”
Lump-sum alimony is generally not taxable as per judicial interpretation (subject to evolving Finance Acts).
The payer cannot claim a tax deduction for maintenance.
Point | Explanation | |||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
🔍 Who Can Claim? | Either spouse under CrPC, HMA, SMA | |||||||||||||||||
📆 When to File? | During or after mutual divorce | |||||||||||||||||
💡 Court Powers | Modify, enhance, or reduce amount | |||||||||||||||||
🛑 Can It Be Waived? | Yes, in mutual settlement, if fairly negotiated | |||||||||||||||||
🚫 Penalty for Non-payment | Attachment of salary/assets, arrest |
Maintenance and alimony are not just financial settlements—they are legal rights rooted in dignity and equality. Even in mutual divorces, it’s critical that financial security, especially for the non-earning spouse, is not compromised under emotional pressure.
To ensure that your mutual divorce agreement is legally enforceable, tax-efficient, and future-proof, always consult an experienced family law advocate.
KHA ADVOCATES has decades of experience in mutual divorce, NRI matrimonial disputes, and alimony settlement negotiations. We represent clients across the Supreme Court, High Courts, and Family Courts in India.
🔗 Visit www.KhaAdvocates.com
KhA Advocates is a premier law firm in Kolkata, West Bengal known Internationally, providing expert legal services in property registration, corporate law, matrimonial law, taxation, dispute resolution, and more. We offer tailored legal solutions for NRIs, businesses, and residents, ensuring 100% compliance and protection. With our efficient, transparent, and reliable approach, we safeguard your legal interests.
